vs.
Respondent.
) Case No. 05-1623
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on August 18, 2005, in Pensacola, Florida.
For Petitioner: Joseph L. Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
For Respondent: Anthony D. Demma, Esquire
Meyer and Brooks, P.A. Post Office Box 1547
The issue is whether the termination of Respondent was proper.
Respondent Terri Bzdick (Ms. Bzdick) was terminated from her position as a teacher with Petitioner Escambia County School Board (School Board) effective April 20, 2005. Ms. Bzdick disputed the factual basis for her termination and demanded a hearing in a letter dated April 25, 2005.
The matter was forwarded to the Division of Administrative Hearings and set for hearing on July 19, 2005. The parties requested a continuance and the hearing was rescheduled for August 18, 2005.
The Board offered Exhibit Nos. 1 and 3-17, which were admitted. The Board called three witnesses. Ms. Bzdick offered Exhibit Nos. 1 and 2, which were admitted, and called one witness. Ms. Bzdick testified on her own behalf. A Transcript was filed on September 8, 2005. Both parties timely filed Proposed Recommended Orders and they were considered in the preparation of this Recommended Order.
unless otherwise noted.
The School Board has employed Ms. Bzdick since December 1993. At times pertinent, and until her removal from the classroom on February 7, 2005, she was the resources teacher for the Exceptional Student Education (ESE) program at the McArthur
Elementary School. She had a professional service contract with the School Board.
The School Board operates the school system in Escambia County. The School Board is a party to a Master Teacher Contract (Master Contract) with the Escambia Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relationship between the School Board and
Ms. Bzdick.
Marsha Nowlin became the principal of McArthur in the 1998-99 school year. She and Ms. Bzdick began working at McArthur about the same time. In the year 2000 Principal Nowlin became concerned about the number of absences accrued by
Ms. Bzdick and her failure to strictly adhere to ESE procedures. Because the ESE program operates pursuant to federal guidelines, and is funded in part by federal funds, it is important that ESE teachers strictly comply with the federal guidelines.
Principal Nowlin counseled Ms. Bzdick with regard to her shortcomings and Ms. Bzdick agreed to strictly comply with the specific requirements of the ESE program.
In November 2003 Ms. Bzdick's attendance became an issue and it was reported to Principal Nowlin that the smell of alcohol had been detected on Ms. Bzdick's breath. Principal Nowlin thereafter informed Ms. Bzdick, in a memorandum dated
November 17, 2003, of her concerns with regard to Ms. Bzdick's absences and directed her to meet in her office on November 24, 2003. The memorandum also required Ms. Bzdick to provide a doctor's note each time future absences occurred.
During this time Ms. Bzdick believed that she was suffering from depression and she was self-medicating by ingesting alcohol. She would, on occasion, call Principal Nowlin on the telephone, often late at night, and sometimes would speak emotionally and angrily. Principal Nowlin believed that Ms. Bzdick had been imbibing alcohol prior to these calls.
On November 24, 2003, Principal Nowlin and Ms. Bzdick met in Principal Nowlin's office. The subject of the meeting was Ms. Bzdick's absences and her failure to advise in advance that she would be absent. The lack of advance notice of a teacher's absence causes administrative difficulties.
During the meeting on November 24, 2003, Ms. Bzdick asserted that she was suffering from depression.
Principal Nowlin referred Ms. Bzdick to Dr. Doug Garber, assistant school superintendent, and he referred her to Dr. Rick Beech. He is an addictionologist that the School Board utilizes when employees have problems that are substance abuse related. This referral eventually resulted in a Return to Work Agreement dated December 5, 2003.
Participation in a Return to Work Agreement (RTW) has the effect of suspending contemplated disciplinary action. The Return to Work Agreement referred to the Master Contract and recited that Ms. Bzdick had disclosed an alcohol or drug abuse problem that might interfere with her performance. She agreed to be evaluated by an approved Substance Abuse Professional, to submit to drug and alcohol screening, and to refrain from indulging in drugs or alcohol. She acknowledged in the Return to Work Agreement that her continued employment was contingent on her compliance with the RTW Agreement.
Principal Nowlin worked with Ms. Mary Helen Fryman, Director for Human Resources, in order to obtain treatment for Ms. Bzdick that was satisfactory to Ms. Bzdick. Ms. Bzdick was referred to the Lakeview Center which is a facility that provides services for persons experiencing substance abuse and emotional issues. She completed that program as an out-patient.
Principal Nowlin had in place, at the beginning of the 2004-05 school year, a program whereby teachers could leave early two days each nine-week grading period. The opportunities to depart early were represented by color coded passes. Two were issued to each teacher each period. Ms. Bzdick abused the process by using passes obtained in addition to the ones she was issued.
Additionally, during the first part of the school year beginning August 2004, Ms. Bzdick logged numerous absences and often failed to give notice prior to an absence. She also failed to bring a doctor's note when she claimed an absence was due to medical reasons. As a result, Principal Nowlin prepared a memorandum dated February 4, 2005, notifying her that disciplinary action was being considered. The memorandum advised that Ms. Bzdick would be required to meet with Principal Nowlin and that she could have a union representative present if she wished.
The memorandum was presented to Ms. Bzdick on February 7, 2005, a Monday, and she signed the memorandum indicating she had received it. Ms. Bzdick did not report for work on February 8, 2005. Instead, Principal Nowlin's found a message on her answering machine which used obscenities and stated that, "I never want to work there again as long as you work there." The message further stated, "I will not come back there."
Ms. Katherine Reynolds was an acquaintance of
Ms. Bzdick who also taught at McArthur Elementary School. They often talked on the telephone and Ms. Reynolds was of the opinion that Ms. Bzdick was intoxicated on some of the occasions. Their discussions involved school and family
matters. Ms. Bzdick often complained to Ms. Reynolds that Principal Nowlin treated her unfairly.
Between the return to school subsequent to the chaos created by Hurricane Ivan, which struck on September 16, 2004, and the Christmas break, Ms. Bzdick told Ms. Reynolds, on two occasions, during telephone conversations, that she would get a gun and come to McArthur and shoot Principal Nowlin. On one of those occasions she said that she would come to McArthur Elementary School with a gun, require Principal Nowlin to disrobe, kiss her feet, and beg for her life. She said that she would then shoot her.
Ms. Bzdick conditioned her threats on being "written up" again by Principal Nowlin. Ms. Reynolds did not report the threat because she did not believe that Ms. Bzdick would carry it out, because it was conditioned on being "written up again," and because she did not wish to cause trouble for Ms. Bzdick.
When Ms. Bzdick was "written up," on February 7, 2005, she went to Ms. Reynolds' classroom during the afternoon and said, "Maybe I'll get that gun today." Later that night
Ms. Bzdick and Ms. Reynolds had a telephone conversation that lasted about four hours. Ms. Bzdick also called Ms. Reynolds and left a message saying she would, "rather be dead." At that time Ms. Reynolds decided that the threats were serious and
subsequently reported them to Principal Nowlin on February 8, 2005.
Upon being informed of the threats, a representative of the sheriff's department came to the school and took statements. Security measures were reviewed and enhanced at the school.
Principal Nowlin believed the threats to be serious because one of them included a specific plan of action. Because of this specificity Principal Nowlin concluded that the threat was much more than idle chatter.
Ms. Bzdick was suspended with pay on February 8, 2005.
Subsequently, in a letter dated February 14, 2005, Ms. Bzdick was notified by Jim Paul, Superintendent of Schools, that she was being placed on suspension without pay during a period in which further investigation would be conducted.
In a letter dated March 11, 2005, Ms. Bzdick was advised by Superintendent Paul that he would recommend a continuation of her suspension without pay.
In a letter dated April 14, 2005, Ms. Fryman notified Ms. Bzdick of the charges against her and required her to report to Ms. Fryman's office on April 19, 2005. Four charges were set forth in the letter: (1) Threatening the life of the principal at McArthur Elementary School; (2) Vulgar and inappropriate messages to the principal at McArthur Elementary School;
(3) Excessive absences; and (4) Falsification of documents, i.e.
Leave Early Passes. The letter advised Ms. Bzdick that she could have a union representative at the meeting. Ms. Bzdick signed for the letter on April 14, 2005.
Ms. Bzdick, accompanied by a union representative, met with Ms. Fryman on April 19, 2005, and her union representative met with Ms. Fryman on subsequent occasions. Ms. Bzdick was given a chance to enter into another RTW. Ms. Bzdick declined the offer. Moreover, Ms. Bzdick denied all of the allegations against her.
In a letter dated April 19, 2005, Ms. Bzdick was informed by Superintendent Paul that he would recommend to the School Board that they terminate her on April 20, 2005. Subsequently, her employment was in fact, terminated.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1), and 1012.33(3)(e) and (f), Fla. Stat. See also Article XI of the Master Teacher Contract.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation vs. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the School Board must establish facts upon which its allegations of
misconduct are proven by a preponderance of the evidence. Dileo vs. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990) and Sublett vs. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995). See also § 120.57(1)(j), Fla. Stat.
Section 1012.33(1)(a) provides that a teacher, such as Ms. Bzdick, who has entered into a professional services contract may be dismissed only for just cause.
Section 1012.33(1)(a) defines just cause as misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude, and states that these five reasons may be defined by rule of the State Board of Education.
The State Board of Education has provided definitions for the four of the five terms (willful neglect of duty is not specifically defined), along with some obsolete terms (which are not included below), in Florida Administrative Code Rule 6B- 4.009, as follows:
6B-4.009. Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for four of the five charges (willful neglect of duty is not included in the rule) is hereby defined:
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 panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
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; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
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.
* * *
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
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 by and with proper authority.
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(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Threatening to kill one's principal is misconduct in office as contemplated by Section 1012.33(1)(a). Ms. Bzdick's threats were so serious as to impair her effectiveness in the school system. See Virgil L. Morgan, Superintendent of Schools vs. Burton A. Caswell, Case No. 90-4184 (DOAH May 13, 1991).
Ms. Bzdick violated Section 1012.33(1)(a), as defined in Florida Administrative Code Rule 6B-4.009(4), by repeatedly being absent without having given prior notice or without presenting a doctor's note, subsequent to being told to give prior notice and provide a doctor's note. Under the facts of this case her conduct was both gross insubordination and a willful neglect of her duties.
Ms. Bzdick's conduct provided just cause for termination.
the professional services contract between Terri Bzdick and the School Board of Escambia County.
DONE AND ENTERED this 26th day of October, 2005, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2005.
Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547
Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A.
Daniel J. Woodring, General Counsel Department of Education
Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
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.
