STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHLANDS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2867

)

HAROLD D. GRAVES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Sebring, Florida, on October 20 and 21, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Gavin W. O'Brien

Gavin W. O'Brien, P.A.

1806 Manatee Avenue West Bradenton, Florida 34205

For Respondent: Mark S. Herdman

Kelly, McKee

Post Office Box 75638 Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of absence without leave from his teaching duties and misconduct in office, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated March 26, 1993, Petitioner advised Respondent that it was terminating his employment because of absence without leave and misconduct in office. By letter dated May 19, 1993, Respondent requested a formal hearing.

The above-styled case was consolidated for hearing with Highlands County School Board v. Marian D. Dunham, DOAH Case No. 93-2866, in which Petitioner alleges that a teacher at the same school site is guilty of absence without leave, willful neglect of duty, and misconduct in office. A separate recommended order has been issued in DOAH Case No. 93-2866.

At the hearing, Petitioner called 11 witnesses and offered into evidence 24 exhibits. Respondent called two witnesses and offered no exhibits into evidence. All exhibits were admitted.

The transcript was filed November 29, 1993. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. During the 1992-93 school year, Respondent was employed by Respondent as a teacher. He was on annual contract with Respondent. During the 1992-93 school year, he taught with a temporary teaching certificate. Respondent was paid $23,635 annually at a rate of $17.23 hourly.

   
   

2. The reason that Respondent taught with a temporary teaching certificate was that he had failed to pass both parts of the test that teachers must take in order to be certified. Respondent's temporary teaching certificate was effective only for the 1991-92 and 1992-93 school years and could not be renewed for the following school year. Respondent would thus not have been able to work as a teacher during the 1993-94 school year, after which he could again obtain another two-year temporary teaching certificate while he continued to take the examination.

   
   

3. On or about April 8, 1993, Petitioner terminated Respondent after determining that he had been absent without leave from his teaching duties.

   
   

4. Respondent was first assigned to Trout Lake in September, 1991. Trout Lake is a residential exceptional student education (ESE) facility operated by Tri-County Addictions, Inc. Consisting of 43 acres, the facility includes residential and school buildings, which are not within sight of each other. It takes about 10 minutes to walk between the residences and school building. Trout Lake serves an average of 18-24 students ranging in age from 13 to 18 years. The students have all been classified as Severely Emotionally Disturbed and often suffer from drug addiction. In general, the students present difficult management problems.

   
   

5. Petitioner is contractually responsible for educating the Trout Lake students. Toward that end, Petitioner has routinely assigned one or two teachers to teach the students at the school building located on the Trout Lake campus. Immediate responsibility for the teachers rests with the principal at Avon Park High School, which is about five miles from Trout Lake. During the 1991-93 school years, the principal was Barbara Dean. Given the nature of the students, however, considerable responsibility for the success of Petitioner's involvement with the Trout Lake program rests with Petitioner's District ESE staff.

   
   

6. Respondent was certified to teach social studies, not ESE. His orientation at Trout Lake consisted of following around his predecessor for three or four weeks. After the predecessor left, Respondent was by himself for the entire 1991-92 school year.

   
   

7. Respondent's schedule at the beginning of the 1992-93 school year required his services from 7:15 am to 2:45 pm. His duties on Monday, Tuesday, Thursday, and Friday were different from those on Wednesday.

8. Each weekday morning, the students began the day around 7:15 or 7:30 am with about an hour of peer counselling. Respondent actively participated in this activity, which took place at the residence.

   
   

9. On weekdays except Wednesdays, the students were divided into two groups. One group went to school in the morning, immediately after peer counselling, while the other group remained at the residence for counselling from the counsellors employed by Trout Lake. In the afternoon, the group that had gone to school went to the residence for counselling, and the group that had remained at the residence went to school.

   
   

10. The students who went to school in the morning typically left the residence for school at about 8:30 am. At about 11:30, after four periods of about 45 minutes each of social studies, science and health, mathematics, and English, the morning students rejoined the others at the residence for lunch. At around 12:30 pm, the afternoon students arrived at the school building and attended the same four courses until about 3:30 pm.

    
    

11. The Wednesday schedule was different. The Trout Lake counsellors needed one weekday during which they could counsel all of the students together. Thus, on Wednesdays, all of the students went to school in the morning and were taught in classes twice as large as normal. From 11:00 am to about 11:30 am, the counsellors met with various groups. Then, lunch took place at the residence from about 11:30 am to about 12:30 pm.

    
    

12. Beginning at about 12:30 pm, the counsellors conducted a staff meeting at which they discussed the students and any problems that they were facing. Respondent typically attended the lunch at the residence each weekday, as well as the Wednesday afternoon staff meeting.

    
    

13. Unlike his predecessor, Respondent routinely attended the Wednesday afternoon staff meeting. Respondent believed that his attendance at the meeting helped him and the counsellors work better together to assist the students.

    
    

14. The Wednesday afternoon staff meetings often lasted two or three hours and addressed many issues irrelevant to Respondent. For these reasons, Respondent normally spoke first at the meetings and left when he was finished, after no more than 40 minutes.

    
    

15. Wednesday afternoons were Respondent's planning period. When he left the staff meeting, he could engage in planning activities for the remainder of the afternoon. The nature of planning, as well as the limited resources at the Trout Lake school building, demanded that Respondent leave the campus from time to time during his planning time in order to accomplish tasks relevant to his planning duties.

    
    

16. Petitioner's witnesses testified that Respondent should have contacted Ms. Dean before leaving the Trout Lake school. In general, these witnesses attributed the authority for this practice to courtesy or professionalism. However, no such practice had existed when Respondent arrived at Trout Lake or during his first year there.

    
    

17. Respondent understandably felt isolated at Trout Lake. He received no orientation from Ms. Dean or any of the ESE staff when first assigned to Trout Lake. He had to learn the customs hurriedly from his predecessor, and later from a paraprofessional. In addition, neither Respondent nor Ms. Dunham was able or expected to attend faculty meetings at Avon Park High School.

18. Ms. Lethbridge visited the facility once every week to three weeks. Ms. Lethbridge's supervisor, Connie Tzovarras, visited the Trout Lake only one time between September, 1992, and March, 1993. From September, 1992, through mid-March, 1993, Ms. Dean visited Trout Lake twice. One time, she came when computers had been stolen. The second visit of Ms. Dean was when she evaluated Respondent. Ultimately, Ms. Dean received a letter of reprimand for her supervision of the Trout Lake teachers.

    
    

19. Respondent testified that he sometimes left the school early on Wednesday afternoons, during his planning time, to perform school-related duties, such as gathering supplies or meeting with school personnel at other locations. Undoubtedly, these are appropriate activities for which Respondent may leave the campus. Given the customs of Trout Lake, Respondent's past experience during the 1991-92 school year, and the failure of Ms. Dean or any ESE staff to instruct Respondent differently, there was no requirement that Respondent advise anyone at Avon Park High School or the ESE District office of such departures for school business or that he sign out when leaving the campus on school-related business.

    
    

20. The absence of a requirement of notice to someone at Avon Park High School or at least signing out before leaving campus on school-related business undermines Petitioner's case. There is considerable evidence that Respondent was not at the school building on Wednesday afternoons. But, with two exceptions, there is no evidence that Respondent ever left the campus on other than school- related matters. Given the remoteness of Trout Lake and its relative lack of

    on-site resources, Respondent necessarily had to leave the campus to carry out normal planning activities. If Respondent's departures from campus had been accompanied by a violation of some clearly defined policy, it would be reasonable to infer that Respondent was pursuing personal business.

    
    

21. However, Petitioner has proved that two of Respondent's absences had nothing to do with school business. Evidently as part of a course that he was taking, Respondent was required to teach reading on two occasions to a group of elementary school students. After having discussed the matter with Ms. Dean, who advised him that he would need to take personal leave if the reading classes took place during the school day, Respondent proceeded on two occasions to visit the elementary school without obtaining leave. On each occasion, Respondent arrived at the Trout Lake school at about 9:15 am and thus was absent two hours without leave.

    
    

22. By letter dated March 26, 1993, Petitioner advised Respondent that he was charged with misconduct in office, violation of School Board Policy 2.31, and violation of Section 231.45, Florida Statutes. The letter also cites a violation of Section 231.44, Florida Statutes, for absence without leave.

    
    

23. The March 26 letter further informs Respondent that the Highlands County School Board, at its next meeting on April 8, 1993, would consider the recommendation of the Superintendent that Respondent's employment be immediately terminated. In the meantime, the letter states that Respondent was suspended with pay.

    
    

24. On April 8, 1993, Petitioner terminated Respondent. Petitioner later advised Respondent that it had determined that he owed the School District over

    $700 for monies paid for which duties were not performed. Petitioner recovered this sum from Respondent by withholding them from his final paycheck.

25. By letter dated May 19, 1993, Respondent requested a formal hearing on his termination.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

27. The March 26, 1992, letter from Petitioner to Respondent identifies two grounds for suspension and termination: absence without leave and misconduct in office.

    
    

28. Section 231.36(1)(a) provides that a teacher not on continuing contract may be dismissed at anytime during the school year for "just cause," which includes "misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."

    
    

29. "Misconduct in office" is defined in Rule 6B-4.009(3) as a violation of the Code of Ethics of the Education Profession, as adopted in Rule 6B-1.001, or the Principles of Professional Conduct for the Education Profession, as adopted in Rule 6B- 1.006. Rule 6B-1.001 contains various ethical objectives stated in fairly general terms. In contrast, Rule 6B-1.006 contains 14 specific principles. If Petitioner intended to predicate its termination decision upon any of these general ethical provisions or specific professional principles, then the March 26 letter should have identified the specific provisions or principles involved, especially since none of the provisions or principles appears particularly pertinent to the matters involved in this case.

    
    

30. Petitioner may have mentioned misconduct in office in the March 26 letter merely to incorporate the charge of absence without leave within a statutory requirement. Section 231.44, which addresses absences without leave, was repealed during the time of Respondent's absences. Laws of Florida, 7 and 8, Chapter 92-67.

    
    

31. The remaining charge is thus that Respondent was absent without leave. Section 231.44, which authorizes the forfeiture of compensation and termination of any district school employee who is willfully absent without leave, was repealed at the time. Section 231.36(1)(a) fails to provide explicitly that absence without leave constitutes "just cause." However, Highlands County School Board Policy 2.31 provides for the termination of employment of persons willfully absent without leave. There is no reason that school-board policy, especially over a matter as obvious as absence without leave, cannot supply the authority to terminate a school district employee, such as Respondent.

    
    

32. Petitioner has proved that Respondent was willfully absent without leave for four hours during the 1992-93 school year.

    
    

33. However, Petitioner withheld more salary than it proved in this case that it was entitled to withhold. Instead of over $700, Petitioner has demonstrated a right to withhold only $68.92, which represents Respondent's hourly rate of $17.23 multiplied by four hours.

34. School Board Policy 2.31 authorizes termination for absence without leave and, like the now-reinstated Section 231.44, does not impose a minimum period of absence before termination may be imposed. Termination in this case operates as a two-month suspension because Respondent's expiring temporary teaching certificate would not have allowed him to be reemployed for the 1993-94 school year. Given Respondent's annual-contract status, as well as the discretion vested in Petitioner, there is inadequate justification to disturb the penalty already imposed by Petitioner, except to refund the difference between the amount actually withheld and $68.92.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Highlands County School Board enter a final order terminating Respondent's employment, as of April 8, 1992, and refunding to Respondent the difference between the amount actually withheld and $68.92.

ENTERED on December 10, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 on December 10, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2867

Treatment Accorded Proposed Findings of Petitioner 1-21: adopted or adopted in substance.

22-23: rejected as unsupported by the appropriate weight of the evidence. 24-26: rejected as irrelevant.

27: adopted.

28: adopted only as to the four hours missed when Respondent twice taught reading at an elementary school.

29-30: adopted.

31-33: rejected as unsupported by the necessary weight of the evidence to the extent of the implication that Petitioner proved that Respondent was, on these occasions, not engaged in school- related business.

34-35: rejected as recitation of evidence and subordinate. 36-40: adopted.

41-45: rejected as subordinate.

46 and 48: adopted as to the four hours described above. 47: rejected as irrelevant.

49: rejected as repetitious. 50: rejected as subordinate.

51-55: adopted or adopted in substance.

Treatment Accorded Proposed Findings of Respondent

1-8: adopted or adopted in substance.

9: rejected as unsupported by the necessary weight of the evidence and as legal argument.

10-12: rejected as irrelevant.

13-21: adopted or adopted in substance. 22: rejected as recitation of evidence. 23: adopted or adopted in substance.

24: rejected as unsupported by the necessary weight of the evidence.

COPIES FURNISHED:

Gavin W. O'Brien

Gavin W. O'Brien, P.A. 1806 Manatee Avenue West Bradenton, Florida 34205

Mark S. Herdman Kelly, McKee

Post Office Box 75638 Tampa, Florida 33675-0638

Superintendent Richard Farmer Highlands County School District

426 School Street

Sebring, Florida 33870-4048

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 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

SCHOOL BOARD OF HIGHLANDS COUNTY, FLORIDA

HIGHLANDS COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NUMBER: 93-2867

HAROLD D. GRAVES,

Respondent.

/

FINAL ORDER

THIS CAUSE came on before the School Board of Highlands County, Florida, for the purpose of issuing a final agency order. The hearing officer assigned by the Division of Administrative Hearings (DOAH) in the above styled case submitted a recommended order to the Highlands County School Board (BOARD) a copy of that recommended order is attached hereto.

FINDINGS OF FACT

1. The Board hereby adopts and incorporates by reference the findings of fact set forth in the recommended order except for the following:

   
   

   1. Paragraph 3 is rejected in its entirety as not based upon competent substantial evidence.

   2. Paragraph 15 is rejected in its entirety as not based upon competent substantial evidence. The Respondent had alternate 45 minute periods during which he had no class to teach therefore he could use the time for planning (T-414, L-15-25). Additionally, the record reflects that the Respondent frequently had time to plan prior to students arriving for class.

   3. The last sentence of paragraph 16 is rejected as not based upon competent substantial evidence. Having not been provided a structured orientation there is no basis for any testimony as to whether a practice existed regarding contacting Mrs. Dean before leaving the Trout Lake school. See also conclusions of law number 2a. The faculty handbook requires Respondent to notify the office if he left campus (T-222, L-10); there is no distinction between Trout Lake and Avon Park High School in terms of leaving campus (T-386, L-11); Respondent must obtain permission to leave the workplace (T- 387, L-18); and Respondent is paid to be on campus

      and it is not reasonable for him to leave without notice (T-396, L-14-22).

   4. The final sentence of paragraph 19 is rejected as not based upon competent substantial evidence. See conclusions of law 2a.

   5. The first sentence of paragraph 20 is rejected as not based upon competent substantial evidence.

   6. The final sentence of paragraph 20 is rejected in its entirety as not based upon competent substantial evidence.

   7. The first sentence of paragraph 24 is rejected in its entirety as not based upon competent substantial evidence.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Board hereby adopts and incorporates by reference the conclusions of law set forth in the recommended order except for the following:

1. Teachers hold a position of great trust. Teachers are charged with leadership and are traditionally held to a higher moral standard than other professionals. It is not required that the school district adopt rules set- ting out every standard for teachers. The teaching profession requires the exercise of independent judgment. Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975); Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981); Forman v. State Board of Accountancy, 243 So.2d 4 (Fla. 3rd DCA 1971). The purpose for which Respondent was absent is irrelevant. Respondent under his contract as a teacher as a matter of law has a duty to be present at school at the class site to supervise his class in the event a student appears even if he does not teach. In so ruling the board has balanced its requirement to supervise its students, the potential liability, the teacher's common sense and professionalism against the teacher's due process.

2. Petitioner has proved the existence of a duty for the Respondent to be on campus during class time and proved the Respondent has willfully neglected such duty; that the Respondent was willfully absent without leave as described in the charges; that Petitioner has demonstrated a right to withhold the sum representing Respondent's hourly rate multiplied by the hours during which she was absent without leave; and that School Board Policy 2.31 authorizes termination for absence without leave without any minimum absence.

3. The third sentence of paragraph 29 is hereby rejected as an improper conclusion of law. If Respondent was un- clear as to the basis of the charges, Respondent's remedy is through procedural requests such as motions for more definite statement or motions to dismiss. As a matter of law, misconduct in office may include willful neglect of duty or absence without leave.

4. While Section 231.44 which addresses absence without leave was repealed during the time of Respondent's

   absences, it is still applicable insofar as the time during which it was valid statutory law.

5. The first sentence of paragraph 31 is rejected as not based on competent substantial evidence and without authority as a matter of law.

6. The term "for four hours" is hereby stricken from paragraph 32 as being without basis in fact.

7. Paragraph 33 is stricken as not based upon competent substantial evidence.

8. The language "except to refund the difference between the amount actually withheld and $68.92" in paragraph 34 is hereby stricken as not based upon competent substantial evidence.

PENALTY

Based upon the foregoing it is hereby:

Recommended that the Highlands County School Board enter a final order terminating Respondent's employment as of April 8, 1992. The sum actually withheld from Respondent's check shall not be disturbed.

This order may be appealed by filing Notices of Appeal and a filing fee as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing this order.

HIGHLANDS COUNTY SCHOOL BOARD

BY:

Robert L. Fitzgerald, Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to Mark Herdman, HERDMAN & SAKELLARIDES, P.A., 34650 U.S. Highway 19 North, Suite 308, Palm Harbor, FL 34684, Gavin O'Brien, Esquire, 1806 Manatee Avenue West, Bradenton, FL 34205-5927, Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, Marian Dunham, 1429 Wightman Avenue, Sebring, FL 33870 and Harold D. Graves, 2510 Par Road, Sebring, FL 33872, this 24th day of March, 1994.

Connie Miller, Clerk

Docket for Case No: 93-002867

Orders for Case No: 93-002867