STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1345

)

ELLEN A. WIENER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 19, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Patricia D. Bass, Esquire

School Board Administration Building 1450 North East Second Avenue, Suite 301 Miami, Florida 33132

For Respondent: Ralph P. Ezzo, Esquire

1101 Brickell Avenue, Suite 1700

Miami, Florida 33131 STATEMENT OF THE ISSUES

Whether Respondent's employment with Petitioner should be terminated for any or all of the following reasons: incompetency, gross insubordination and neglect of duty, misconduct in office, and abandonment.

PRELIMINARY STATEMENT

Respondent is a classroom teacher employed by Petitioner pursuant to a continuing contract. On February 17, 1993, the Petitioner took action to suspend Respondent and initiated proceedings to dismiss her from her employment. Respondent timely requested a formal hearing, and this proceeding followed.

On April 21, 1993, Petitioner filed with the Division of Administrative Hearings its "Notice of Specific Charges" which contains certain factual allegations and which asserts that Respondent's continuing contract should be terminated on the following grounds: incompetency, gross insubordination and willful neglect of duty, misconduct in office, and abandonment of her position.

At the formal hearing Petitioner presented the testimony of Allen Starke, Frederic Zerlin, Margaree Raiford, Maria Davis, Joyce Annunziata, and Desmond Patrick Gray. Mr. Starke, Mr. Zerlin, and Ms. Raiford served as the principal

of schools to which Respondent was assigned during different school years. Ms. Davis is the director of Petitioner's facilities operations. Dr. Annunziata is the Petitioner's Director Office of Professional Standards. Dr. Gray is Petitioner's assistant superintendent in its Office of Professional Standards. Petitioner submitted 33 exhibits, each of which was accepted into evidence.

Respondent testified on her own behalf and also presented the testimony of Patricia Reffner. Ms. Reffner taught with Respondent at one time. Of the eleven exhibits presented by Respondent, nine were accepted into evidence and two were rejected. Accepted as one of Respondent's exhibits was the deposition of Dr. Waldo M. Ellison, a psychiatrist who was providing treatment for Respondent.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment.

   
   

2. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system.

   
   

3. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave.

   
   

4. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence.

   
   

5. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year.

6. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences:

   
   

   Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness.

   
   

   Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences:

   1. Absences for illness must be documented by your treating physician and a written medical note presented to this principal

      upon your return to the site.

   2. Upon return to the worksite, you must provide an unconditional medical release to return to full duties.

   3. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.)

      
      

      These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program.

      
      

      Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures.

      
      

7. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process.

   
   

8. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner.

   
   

9. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her

   foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991.

   
   

10. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation.

    
    

11. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan.

    
    

12. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence.

    
    

13. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows:

    
    

    . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer.

    
    

    The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows:

    Involvement with the recommended program of therapy is to be monitored by district's referral agency.

    Acceptable attendance at the worksite must be maintained.

    Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site.

    If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented.

    Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools.

    
    

14. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination."

    
    

15. Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed.

    
    

16. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite:

    
    

    Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave.

    
    

    The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal."

    
    

    The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave.

    
    

    Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment.

    
    

17. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she

    be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed.

    
    

18. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River.

    
    

19. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment.

    
    

20. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired.

    
    

21. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record.

    
    

22. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows:

    
    

    3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . .

23. Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

25. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the Notice of Specific Charges. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), and Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990).

    
    

26. The provisions of Section 231.36(4)(c), Florida Statutes, provide, in pertinent part, as follows:

    
    

    (c) Any member of the ... instructional staff ... who is under continuing contract may be suspended or dismissed at any time during the school year; however the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drukenness, or conviction of a crime involving moral turpitude. . . .

    
    

27. Section 231.09, Florida Statutes, is as follows:

    
    

    Members of the instructional staff of the public schools shall perform such duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; record keeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

    
    

28. Section 231.44, Florida Statutes, is as follows:

    
    

    Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.

    
    

29. Petitioner's rule 6Gx13-4E-1.001, Florida Administrative Code, provides that:

    
    

    No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is

    absent for other than reasons of sudden illness, emergency, or without such prior approval, shall be deemed to have been willfully absent without leave.

    
    

30. The Department of Education has adopted definitions that may be used in this proceeding. Rule 6B-4.009, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required

       duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a profession by the Commissioner of Education. Such judgment shall be based on a preponderance of the evidence showing the existence of one (1)

       or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in

          the classroom, to such an extent that pupils are deprived of minimum educational experience; . . .

       2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

    * * *

    1. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

       6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given with proper authority.

    
    

31. The provisions of Rule 6B-1.006, Florida Administrative Code, constitute the "Principles of Professional Conduct for the Educational Profession in Florida." Rule 6B-1.006(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. Obligations to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning . . .

32. Petitioner established that Respondent repeatedly took absences for extended periods of time without obtaining leave and without providing lesson plans. Respondent was clearly and repeatedly instructed to comply with the Board's policies pertaining to taking leave. The record establishes that Respondent repeatedly failed to comply with those policies. Respondent's acts impaired her effectiveness as a teacher and impaired the education of the children assigned to her class. Respondent violated her duty to her students found in Rule 6B-1.006(3)(a), Florida Administrative Code. Petitioner established by a preponderance of the evidence that Respondent abandoned her position of employment within the meaning of Section 231.44, Florida Statutes, by going on unauthorized leave in October 1992. Consequently, it is concluded that Petitioner established by a preponderance of the evidence the following grounds for the termination of her employment pursuant to Section 231-36(4)(c), Florida Statutes: misconduct in office, incompetency, gross insubordination, and willful neglect of duty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the

suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract.

DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 24th day of August, 1993.

ENDNOTES

1/ Petitioner does not seek to terminate Respondent's employment on a contention that she was malingering or that there was no justification for her absences. The grounds for termination center on her repeated failure to follow School Board rules and explicit instructions on obtaining authorization for leave. Therefore, detailed findings as to Respondent's mental or physical condition are unnecessary.

2/ Respondent asserts that she was absent because she suffered bronchial and respiratory problems as a result of the air conditioning in her classroom and because she suffered from migraine headaches associated with premenstrual syndrome and stress. The vents of the air conditioner were adjusted to accommodate Respondent's complaints about the air flow. An inspection of the air conditioning unit in Respondent's classroom found nothing wrong with the

unit. Ms. Raiford moved Respondent to another room, but Respondent's absences continued. No teacher, other than Respondent, had complained about the air conditioning unit that was in Respondent's former room.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1345

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 4, 12, 17, 18, 20, 23, 24, 25, 26, 28, 29, 30, 31, 32, 35, 37, and 38 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3, 33, 34, and 36 are subordinate to the findings made.

3. The proposed findings of fact in paragraphs 5, 6, 7, and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 8, 9, 10, and 11 are rejected as being unnecessary to the conclusions reached. These proposed findings pertain to matters that were not included as grounds for termination.

5. The proposed findings of fact in paragraphs 13, 19, and 21 are adopted in material part by the Recommended Order or are subordinate to the findings made.

6. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached since Respondent was assigned to the regional office during part of this time.

7. The proposed findings of fact in paragraphs 27, 39, 40, and 41 are conclusions of law that are unnecessary as findings of fact.

The Respondent's post-hearing submittal consists solely of argument that is based on facts that are contrary to the findings made in this proceeding and on argument that is contrary to the conclusions of law contained herein.

Consequently, Respondent's argument is rejected.

COPIES FURNISHED:

Luis M. Garcia, Esquire Phyllis O. Douglas, Esquire Patricia D. Bass, Esquire 1450 Northeast Second Avenue Suite 301

Miami, Florida 33131

Ralph P. Ezzo, Esquire 1101 Brickell Avenue

Suite 1700

Miami, Florida 33131

Octavio J. Visiedo, Superintendent Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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 ten 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.

Docket for Case No: 93-001345

Orders for Case No: 93-001345