STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF SARASOTA ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case Nos. 97-0791

) 97-1733

ANTHONY HARTLOVE, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 13, 1997, a formal administrative hearing was held in this case in Sarasota, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Arthur S. Hardy, Esquire

Matthews, Hutton and Eastmoore 1777 Main Street, 5th Floor Post Office Box 49377 Sarasota, Florida 34230

For Respondent: Charles L. Scalise, Esquire

Law Offices of W. Russell Synder, P.A.

355 West Venice Avenue Venice, Florida 34285

STATEMENT OF THE ISSUE

The issue for determination in this case is whether Respondent should be terminated from, or otherwise disciplined, in regard to his employment with the Sarasota County School Board.

PRELIMINARY STATEMENT

By letter dated January 27, 1997, Thomas H. Gaul, Superintendent of Schools for Petitioner, SARASOTA COUNTY SCHOOL BOARD (SCHOOL BOARD), notified Respondent, ANTHONY HARTLOVE, that the SCHOOL BOARD would consider the Superintendent's recommendation of the termination of Respondent's employment at its meeting on February 19, 1997. Respondent filed a timely request for administrative hearing, and the matter was referred to the Division of Administrative Hearings on February 13, 1997, designated as Case No. 97-0791. For reasons immaterial to these proceedings, the SCHOOL BOARD did not consider Respondent's termination on February 19, 1997.

On March 24, 1997, a second letter of notification of the SCHOOL BOARD's consideration of Respondent's termination of employment was sent to Respondent. Again Respondent filed a timely request for administrative hearing, and the matter was referred to the Division of Administrative Hearings on April 4, 1997, designated as Case No. 97-1733. The cases were consolidated for hearing which was held on August 13, 1997.

Pursuant to the Prehearing Order, on August 1, 1997, the parties filed a Prehearing Stipulation, setting forth certain stipulated findings of fact as more fully discussed below.

At hearing, Petitioner presented the testimony of one witness, Michael Will, Executive Director of Facility Services for the SCHOOL BOARD. Petitioner also presented fifteen exhibits which were received in evidence.

Respondent testified in his own behalf and presented the testimony of one witness, Penny Hartlove, Respondent's wife. The parties also presented the relevant collective bargaining agreement between the parties as a joint exhibit which was received in evidence.

On August 27, 1997, the Petitioner and Respondent each filed Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Petitioner, the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA (SCHOOL BOARD), is a political subdivision of the State of Florida, and is the agency vested with the authority to operate, maintain, and control the public schools and school personnel in and for Sarasota County, Florida.

2. Respondent, ANTHONY HARTLOVE, at all times material hereto, was employed by the SCHOOL BOARD as a custodian in the Facility Services Department. Respondent was first employed by the SCHOOL BOARD in this capacity in the late 1980's. Respondent is a member of the Sarasota Classified/Teacher Association which has entered into a collective bargaining agreement with the SCHOOL BOARD.

3. As a SCHOOL BOARD employee, Respondent received a specified number of days for sick leave each year which under SCHOOL BOARD policy Respondent was entitled to use for personal or family illness. In Respondent's employment circumstances, he received one sick leave day per month.

4. During the course of his employment with the SCHOOL

   BOARD, Respondent continually exhausted his accrued sick leave benefits.

5. The parties have stipulated that Respondent was notified on numerous occasions, both verbally and in writing, of the SCHOOL BOARD's policy requiring an employee who has been absent to submit documentation from a physician excusing the absence if the employee had no sick leave remaining.

6. The parties have further stipulated that Respondent submitted falsified physician's notes to his supervisors in an attempt to excuse several absences he took in excess of his earned leave time.

7. Respondent's history of repeated absenteeism culminated on June 23, 1992, with a recommendation from Michael Will, Director of Facilities Services, to Robert Meyer, Assistant Supervisor, that Respondent's employment with the SCHOOL BOARD be terminated. This recommendation was based upon Respondent's disregard for SCHOOL BOARD policies, and noted that "Mr. Hartlove has been in an unauthorized leave status on numerous occasions and has not provided any justifiable reason for his absence." Prior to this recommendation, Respondent had on one occasion been given a five-day suspension in 1989 for reasons unrelated to absenteeism, and not the subject of these proceedings.

8. On July 6, 1992, the Superintendent of Schools recommended to the SCHOOL BOARD that Respondent's employment be terminated.

9. After discussions with Respondent and his wife's

   physician, the Superintendent withdrew the recommendation for Respondent's termination of employment, and on September 1, 1992, Respondent was given a written record of counseling and notified that he would be subject to disciplinary action if he failed to follow SCHOOL BOARD policy regarding sick leave.

10. Despite the written notification of September 1, 1992, Respondent failed to adhere to SCHOOL BOARD sick leave policy during the next several years. Respondent received written counseling reports regarding sick leave policy on July 20, 1993, July 11, 1994, November 21, 1996, February 10, 1997, and February 27, 1997.

11. In addition to the written counseling reports, on September 29, 1993, Respondent received a written confirmation of an oral reprimand for abuse of school equipment, failure to be in proper attire on duty, and lack of punctuality.

12. On January 26, 1994, Respondent again received a written confirmation of oral reprimand for deficiencies in job performance due to excessive absenteeism.

13. Respondent received another written reprimand on August 9, 1995, for failure to provide written documentation for absenteeism in a timely fashion.

14. In May of 1996, Michael Will learned that Respondent had falsified several medical excuses as indicated above. Respondent acknowledged the submission of false medical excuses to his supervisors.

15. By letter dated June 12, 1996, the Superintendent

    recommended to the SCHOOL BOARD that Respondent's employment be terminated.

16. Thereafter, the Sarasota Classified/Teachers Association filed a grievance regarding Respondent's recommended termination of employment. The SCHOOL BOARD then withheld action in the recommendation pending completion of the grievance procedures.

17. After the conclusion of the grievance procedures, the Superintendent again recommended to the SCHOOL BOARD the termination of Respondent's employment by letter dated

    January 27, 1997.

    
    

18. While this recommendation was pending, Respondent continued to miss work without documentation, and another recommendation for termination was issued by the Superintendent on March 24, 1997.

19. Respondent was terminated from employment with the SCHOOL BOARD on April 15, 1997.

20. Respondent's history of absenteeism is primarily due to the chronic illness of his wife who suffers from the deleterious effects of lupus, a chronic and debilitating disease. In addition to suffering from lupus, Respondent's wife also suffers from clinical depression and has on at least two past occasions required extended hospitalization for treatment of mental distress.

21. Respondent and his wife have two small children. When Respondent's wife is ill, he is responsible for their care,

    although he has assistance from family and friends. His wife's illnesses and the costs of child care have placed substantial financial hardship on the Respondent's family.

22. In addition to his wife's health problems, Respondent also suffers from chronic bronchitis and ulcers and has been absent from work due to his own health problems. There is no indication that Respondent has missed work for reasons other than his or his wife's health problems.

23. Respondent generally performs his duties as a custodial employee with SCHOOL BOARD in a competent manner; however, Respondent's repeated absenteeism taxes the personnel resources of the Facilities Services Department.

24. Subsequent to the termination of his employment, Respondent and his wife have made specific arrangements for her care and the care of their children when Mrs. Hartlove is ill.

    CONCLUSIONS OF LAW

    
    

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

26. The review of Respondent's termination of employment is governed by the appropriate collective bargaining agreement. Section 231.3605(2)(c), Florida Statutes.

27. Article XXII subsection (I) of the Sarasota Classified/Teachers Association collective bargaining agreement provides in pertinent part:

    1. The discipline, dismissal, demotion, and suspension of any

       employee shall be for just cause.

    2. Where just cause warrants such action(s), an employee may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or other flagrant violation, progressive discipline shall be administered as follows:

       1. Verbal reprimand (written notation placed in site file).

       2. Written reprimand filed in Personnel and site files.

       3. Suspension with or without pay.

       4. Dismissal.

28. The preponderance of the evidence in this case establishes just cause for the SCHOOL BOARD to take disciplinary action against Respondent. The nature of the disciplinary action, however, should be considered in light of the requirements of the collective bargaining agreement and Respondent's personal and family circumstances. Davis v. School Board of Gadsden County, 646 So. 2d 766 (Fla. 1st DCA 1994).

29. Although Respondent has an extended history of absenteeism and has admitted to the falsification of physician's excuses, the evidence reflects that Respondent's actions were driven by his need to care for his wife and children. Moreover, Respondent and his wife have now taken additional specific measures to provide for her care and the care of their children during the recurrences of Mrs. Hartlove's illnesses.

30. Under these circumstances, Respondent's past actions

    regarding falsification of medical excuses should not be construed as flagrant violations which posed a real or immediate

    danger to the SCHOOL BOARD for purposes of Article XXII of the collective bargaining agreement.

31. In accordance with the progressive disciplinary procedures, Respondent has already been given verbal and written reprimands. Respondent has not been suspended for the acts giving rise to this proceeding. Respondent's five-day suspension in 1989 is not only remote in time, but is unrelated to the charges which are the subject of these disciplinary proceedings.

32. Because Respondent has not been suspended for the acts of which he is charged in this proceeding, the next appropriate penalty under the progressive disciplinary provisions of the collective bargaining agreement is suspension.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the SCHOOL BOARD OF SARASOTA COUNTY,

FLORIDA enter a final order suspending Respondent, ANTHONY HARTLOVE, from employment for a period not in excess of six months commencing on April 15, 1997.

DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997.

COPIES FURNISHED:

Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore 1777 Main Street, 5th Floor Post Office Box 49377 Sarasota, Florida 34230

Charles L. Scalise, Esquire

Law Offices of W. Russell Synder, P.A.

355 West Venice Avenue Venice, Florida 34285

Dr. Thomas H. Gaul

Sarasota County Public School 1960 Landings Boulevard

Sarasota, Florida 34231

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000791

Orders for Case No: 97-000791