STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4854

)

DAN WISNIEWSKI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 10, 1996, in Sarasota, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles E. Williams, Esquire

Scott and Williams, P.A. 1900 Main Street, Suite 205

Sarasota, Florida 34236

For Respondent: Dan Wisniewski, pro se

551 Garden Road Venice, Florida 34293

STATEMENT OF THE ISSUE

Whether cause exists for Petitioner's proposed termination of Respondent as an in-school suspension supervisor for the alleged failure to adhere to attendance procedures.

PRELIMINARY STATEMENT

By letter dated April 20, 1995, Charles W. Fowler, Superintendent of the Sarasota County School District, notified Dan Wisniewski, Respondent, that he would be recommending that Respondent be terminated from his employment with Petitioner, the School Board of Sarasota County, Florida. The letter stated that the recommendation was based on the fact that Respondent had been unable to successfully follow attendance procedures. Respondent challenged Petitioner's actions and requested a formal hearing. On September 27, 1995, the matter was forwarded to the Division of Administrative Hearings and this proceeding followed. The case was initially assigned to J. Lawrence Johnston, but prior to final hearing was transferred to the undersigned.

At the hearing, Petitioner presented the testimony of Mary Watts, Gerald Padfield, Candace Millington, Gary Mitchell, and Dan Parrett, all of whom are employees of the Petitioner. Ms. Watts is the Assistant Superintendent for Support Services. Mr. Padfield is the Supervisor of Personnel Services. Mr.

Dan Parrett is the principal of Venice High School and Mr. Mitchell and Ms. Millington are assistant principals at the school. Petitioner offered nineteen exhibits into evidence, all of which were admitted into evidence. Respondent testified on his own behalf and had one exhibit admitted into evidence at hearing. Seven additional exhibits offered by Respondent were accepted pursuant to a stipulation between the parties, as late-filed exhibits.

The hearing was recorded but not transcribed. Neither party submitted proposed recommended orders.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was employed by Petitioner as an in-school suspension (ISS) supervisor at Venice High School, one of the public schools in Sarasota County, Florida.

   
   

2. As ISS supervisor, Respondent was required to follow and adhere to ISS attendance procedures. These procedures required that Respondent do the following: (1) pick up the roster of students assigned to ISS between 2:15 p.m. and 2:30 p.m. on the day prior to the day the students were to report to ISS;

   (2) take attendance at 7:35 a.m. daily; (3) immediately after taking attendance, contact the appropriate teacher via telephone intercom to ensure that no student assigned to ISS was improperly attending his regular classes;

   (4) submit a list of students present in the ISS class to the appropriate staff by 8:30 a.m.; and (5) contact the appropriate administrator when a student left ISS without proper authorization. These responsibilities were to be performed each school day.

   
   

3. Following several complaints about problems related to the attendance or nonattendance of students assigned to ISS, it was determined that the ISS attendance procedures were not being followed by Respondent. To assist Respondent and to clarify his job responsibilities, the attendance procedures for ISS were outlined in an October 10, 1994 memorandum and in an October 20, 1994 memorandum. The memos were from Dan Parrett, principal, and Candace Millington, assistant principal, respectively.

   
   

4. On October 20, 1994, Mr. Parrett and Ms. Millington met with Respondent and thoroughly reviewed with him the ISS attendance procedures which were outlined in the memorandums.

   
   

5. Following the meeting of October 20, 1994, Respondent continued to violate the attendance procedures by reporting as present in ISS, students who were, in fact, not in attendance. Respondent also failed to notify appropriate teachers when assigned students were not in ISS. Specific instances of such deficiencies in reporting attendance were cited to Respondent during an October 31, 1994 meeting with Mr. Parrett and Ms. Millington. A summary of these violations was detailed in a written reprimand to Respondent dated October 31, 1994. The written reprimand was issued by Ms. Millington, Respondent's direct supervisor, specifying violations which occurred on October 25, 26, 28, and 31, 1994.

   
   

6. A second letter of reprimand, dated November 11, 1994, was issued to Respondent on November 18, 1994. This reprimand noted Respondent's repeated failure to follow ISS attendance procedures and cited incidents reflective of such failure. The letter of reprimand was based on Respondent's failure to notify appropriate teachers when students assigned to ISS did not report to ISS and on his failure to accurately report whether students were present or absent

   from ISS. In the latter category, there were several instances when Respondent had reported as present students who were not at school, and had failed to report as present some students who were in attendance in ISS. The incidents cited in this written reprimand occurred between November 1 and November 11, 1994.

   
   

7. Notwithstanding the two written reprimands, Respondent continued to be unsuccessful in following the attendance procedures for ISS. In January 1995, there were at least two occasions when Respondent failed to contact the appropriate teachers to notify them of students' absences from ISS. Between January 10 and February 3, there were five days that Respondent's attendance records failed to list all students who were in attendance in ISS. As a result of these subsequent and continuing deficiencies, a third written reprimand was issued to Respondent at a meeting held on February 3, 1994. This meeting was attended by Mr. Parrett, Ms. Millington, and Mr. Mitchell.

   
   

8. At the February 3, 1995 meeting, Mr. Mitchell asked Respondent to submit written suggestions that would assist Respondent in fulfilling his responsibilities as ISS supervisor. On April 4, 1995, Respondent wrote a letter to Mr. Parrett and Ms. Millington. However, this letter contained only Respondent's rationale for the errors in his attendance records, and offered no suggestions that would assist Respondent in successfully following the attendance procedures.

   
   

9. In a February 10, 1995, letter from Ms. Millington to Respondent, specific instances of violations of the ISS attendance policy were detailed. The incidents referred to therein occurred on February 6, 7, and 10, 1995. Violations involved Respondent's failure to submit accurate records of attendance and his failure to notify appropriate teachers that students assigned to ISS were not present. This letter informed Respondent that because of his continuing failure to follow ISS attendance policies, Ms. Millington was recommending that Respondent receive a three-day suspension without pay. The

   letter stated that Respondent's failure to correct his performance would subject him to further disciplinary actions.

   
   

10. On February 13, 1995, the superintendent recommended to Petitioner that Respondent be suspended for three days without pay for his failure to successfully follow attendance procedures. Pursuant to the recommendation, Respondent was suspended by Petitioner on or about February 21, 1995.

    
    

11. After Respondent's three-day suspension without pay, there were additional instances where Respondent failed to successfully comply with the ISS attendance procedures. Between February 27 and March 21, 1995, there were at least eight days when Respondent's attendance records were in error. These errors involved Respondent's either listing students as absent who were present or listing students as present who were absent. Mr. Parrett and Ms. Millington met with Respondent on March 23, 1995, regarding these specific instances and notified him that these actions constituted a repeated and continuous failure to follow ISS attendance procedures.

    
    

12. By letter dated April 20, 1995, Dr. Charles Fowler, Superintendent of the Sarasota School District, notified Respondent that he was recommending to Petitioner that Respondent be terminated from his position due to his failure to successfully follow attendance procedures.

13. Despite numerous meetings and written correspondence, including written reprimands, Respondent's deficiencies continued. Respondent was either unwilling or unable to successfully comply with the ISS attendance procedures.

    
    

14. As a result of Respondent's failure to adhere to the prescribed ISS attendance procedures at Venice High School, it was virtually impossible for school administrators to ascertain with any degree of certainty, the whereabouts of ISS students on any given day. The inaccurate reporting impeded the school's ability to accurately account for students assigned to ISS.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Pursuant to Section 230.23(5)(f), Florida Statutes, the Petitioner has the authority to suspend or terminate Respondent's employment as an in-school suspension supervisor.

    
    

17. In order to prevail, the Petitioner is required to prove the charges against Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd. DCA 1990); Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990).

    
    

18. Section 232.022, Florida Statutes, requires that the attendance of all public school students be checked and recorded each school day. That section further provides that students may be counted in attendance only if they are actually present at school or away from school at a school-approved program. Petitioner is responsible for the proper accounting for all children of school age, and for the attendance and control of students at school. Section 230.23(6), Florida Statutes.

    
    

19. The evidence is undisputed that Respondent failed to comply with the school's ISS attendance procedures, thereby making it extremely difficult for administrators at Venice High School, and ultimately Petitioner, to account for students assigned to the ISS class at the school.

    
    

20. Petitioner has met its burden in this case. Petitioner has established by a preponderance of the evidence that Respondent continuously and repeatedly failed to comply with the ISS attendance procedures. Respondent's failure in this regard constitutes good cause to terminate his employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Sarasota School Board enter a final order terminating

Respondent's employment as an in-school suspension supervisor.

DONE and ENTERED this 29th day of February, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

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 29th day of February, 1996.

COPIES FURNISHED:

Charles E. Williams, Esquire Scott and Williams, P.A.

1900 Main Street, Suite 205

Sarasota, Florida 34236

Dan Wisniewski

551 Garden Road Venice, Florida 34293

Gene Witt Superintendent

The School Board of Sarasota County, Florida

1960 Landings Boulevard

Sarasota, Florida 34231-3331

Michael H. Olenick General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Frank T. Brogan Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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: 95-004854

Orders for Case No: 95-004854