STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

WILLIAM BENCHIK,

Respondent.

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) Case No. 04-1102

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RECOMMENDED ORDER

A formal hearing was held in this case via video teleconference in Fort Lauderdale and Tallahassee, Florida, on July 22, 2004, before Florence Snyder Rivas, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Panza, Maurer, & Maynard, P.A.

Bank of America Building, Third Floor 3600 North Federal Highway

Fort Lauderdale, Florida 33308

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUE

At issue is whether Petitioner School Board of Broward County (School Board or Petitioner) should terminate the employment of Respondent William Benchik (Respondent or Benchik)

for gross insubordination and/or for leaving work without authorization on September 3, 2003.

PRELIMINARY STATEMENT

By letter dated September 17, 2004, Leah Kelly (Kelly), Director of Exceptional Student Education (ESE) for Petitioner, advised Respondent that she was recommending his dismissal to be effective October 7, 2004. The letter included a detailed description of events which transpired on September 3, 2004, which the School Board contends constitute gross insubordination in refusing to complete assigned tasks and to follow directives. Respondent was also charged with being absent without leave or proper authorization.

Respondent timely asserted his right to an administrative hearing to challenge the termination.

The identity of witnesses and exhibits and attendant stipulations and rulings rendered at hearing are contained in the one-volume transcript of the July 22, 2004, final hearing, which was filed on September 20, 2004.

Proposed Recommended Orders were timely submitted by the parties and have been carefully considered. References to Sections are to the Florida Statutes (2004). References to Rules are to the Florida Administrative Code (2002).

FINDINGS OF FACT

1. The Respondent was employed with the Broward County School Board since 1980. His education and experience is entirely in ESE, with emphasis on the teaching of visually impaired students.

2. Benchik is able to teach and translate Braille. This skill is an invaluable tool for teaching the visually impaired, and few teachers are trained in it.

3. Because of the relative scarcity of teachers with Benchik's skill set, supervisors have, for years, refrained from imposing discipline harsher than verbal counseling for infractions which would have resulted in termination if committed by a more fungible teacher.

4. Benchik's offenses include multiple violations of the district's formal written policy regarding personal leave time; ignoring or disobeying directives and policies; and on-the-job drinking which generated complaints and concerns from parents as well as colleagues.

5. One rule for which Benchik demonstrated particular contempt was the requirement that teachers obtain supervisor approval prior to utilizing personal leave time.

6. On at least three occasions prior to September 3, 2003, Benchik had taken leave without seeking prior approval from the appropriate supervisor(s). On each occasion he was counseled

   that approval for leave must be obtained in advance, absent exigent circumstances.

7. Policy notwithstanding, at all times material to this case, Benchik adheres to the view that he is the lone arbiter of when he will avail himself of personal leave time and whether or not he will notify his supervisor of his intention to leave work in order to do so.

8. Benchik's view, about which he candidly testified, is that if he has personal leave time "on the books," he is entitled to take it entirely on his own volition. This is so, he contends, even if his supervisor has instructed him to report back to her for additional instructions immediately upon completing an assigned task.

9. To the contrary, under applicable School Board policy on September 3, 2003, Benchik was obliged to request leave in advance, in writing, absent exigent circumstances which, as will be seen below, did not exist.

10. By the end of the 2002-2003 school year, Petitioner's patience with Benchik was stretched, but not exhausted. Although there were substantial grounds to terminate Benchik on account of his continued drinking on the job, Petitioner instead entered into a so-called last chance agreement with Benchik.

11. The agreement, dated July 22, 2003, imposed a suspension without pay, which Benchik served from August 19, 2003, through September 2, 2003.

12. Thus, September 3, 2003, was to be Benchik's first day of work following his suspension pursuant to the last chance agreement. It was appropriately decided by Benchik's supervisors that he work that day under close supervision at district headquarters.

13. For a teacher with Benchik's years of experience to be micromanaged from one discrete task to the next, as he was to be on September 3, 2003, is unusual, but entirely appropriate to the circumstances which Benchik had created.

14. On September 3, 2003, Benchik reported as directed to School Board headquarters. There, he was greeted by Marie Brown (Brown), clerk specialist of the ESE Department. Brown, like Benchik, reports directly to Deborah Lietzke (Lietzke).

15. Knowing she would be out of the office on September 3, 2003, Lietzke had provided Brown with materials related to discrete tasks which Benchik was expected to complete. The first of these tasks was a Braille translation assignment. Lietzke also left for Benchik's use appropriate resource materials necessary to perform the various tasks.

16. Lietzke had briefed her supervisor, Leah Kelly, regarding the tasks Benchik was to perform. Kelly and Benchik

    spoke briefly at the start of the workday. Kelly informed Benchik that he should first complete the Braille task, which she anticipated would not take the full morning, and then report to her to receive additional work.

17. Likewise, Kelly instructed Benchik to seek her out should he encounter any questions or problems. Kelly further advised Benchik that she would be out of her office for some portion of that morning, but she would be in the building and able to be reached, and that she expected to return to her office by mid-morning. Finally, she informed Benchik she could be reached by ESE staff if needed for any reason.

18. Benchik did not question Kelly's instructions or express any dissatisfaction with reference to the Braille assignment. Neither did he question the directive that he contact Kelly with any and all questions which might arise, and also upon completion of the Braille assignment. He did not question or complain about the materials provided for his use in performing the assignment.

19. Benchik also did not mention that he might be needing some or all of the day off. He did not warn Kelly that he might find it intolerable to wait for her, or to ask staff to help locate her, should she be out of her office at any precise moment he might wish to speak to her.

20. Kelly and Lietzke reasonably expected, on September 3, 2003, that Benchik would perform all assigned tasks with a reasonable degree of diligence, would follow all directives given, and would comply with school board policy, particularly those about which he had previously been counseled. Benchik did none of these things.

21. Instead, about an hour after his meeting with Kelly, Benchik made a decision to abandon work for the day, having only partially completed the Braille assignment.

22. Respondent came to Brown’s desk where he turned in what he knew to be an incomplete and mediocre job on the Braille translation. He complained to Brown about the quality of the Braille translation materials which had been provided to him, although he knew that the materials were adequate to enable him to do the job assigned.

23. Ignoring the directive that he contact Kelly if problems arose and/or when he had completed the Braille task, Benchik told Brown he was taking the rest of the day off, instructing her to have an hour of work time recorded on his behalf, along with six and one-half hours of personal leave.

24. Benchik seeks to portray his termination as draconian punishment for the mere failure to properly complete bureaucratic paperwork. This argument is unpersuasive.

25. The fact finder had the opportunity to carefully observe Benchik's demeanor under oath. He demonstrated no remorse for his conduct of September 3, 2003, or any other time. Rather, he was the School Board's best witness, stubbornly clinging to the notion that he may ignore policies and directives when it suits him to do so.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto.

    § 120.57(1), Fla. Stat.

    
    

27. Pursuant to Section 1012.33, Florida Statutes, “Any member of the instructional staff, . . . may be suspended or dismissed at any time . . . for just cause.” Just cause includes but is not limited to misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    § 1012.33(1)(a), Fla. Stat.

    
    

28. Petitioner is required to prove its allegations by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

29. The totality of the record, including the testimony of Benchik himself, is sufficient to establish gross insubordination on September 3, 2003.

30. Benchik was given specific, detailed, and reasonable instructions by a supervisor authorized to issue directives to him. He was told to complete a Braille translation project but failed to do so because he did not like the translation instruments provided to him. Rather than attempt to address any issues he encountered with Kelly, as he had been instructed to do, he informed a clerk of his grievances about the supposed inadequacy of the materials provided for his use in completing the assignment, and announced he was leaving.

31. Leaving the workplace without authorization was a breach of School Board policy requiring employees to obtain a supervisor's approval in advance of taking personal time off.

32. No exigent circumstance existed which justified Benchik's failure to comply with the policy; rather, he freely admits to the view that was not obliged do so because he had leave time "on the books." Benchik had been admonished about this conduct previously. Petitioner was under no obligation to warn him yet again.

33. Leaving without authorization also violated Kelly's specific directive of September 3, 2003, that he come to her for additional work as the day progressed.

34. Under all the circumstances, Benchik's conduct on September 3, 2003, amounts to a "constant or continuing intentional refusal to obey a direct order . . ." rising to the

level of gross insubordination within the meaning of Rule 6B- 4.009.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Benchik's employment.

DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2004.

COPIES FURNISHED:

Mark A. Emanuele, Esquire Panza, Maurer, & Maynard, P.A.

Bank of America Building, Third Floor 3600 North Federal Highway

Fort Lauderdale, Florida 33308

Mark F. Kelly, Esquire Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638

Dr. Franklin L. Till, Jr., Superintendent Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Honorable Jim Winn Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

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: 04-001102TTS

Orders for Case No: 04-001102TTS