STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-276

) DADE COUNTY SCHOOL BOARD

JAMES CARTER, ) CASE NO: 75-1

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated hearing officer, K.N. Ayers, held a public hearing on the above matter on May 28, 1975, at Miami, Florida.

APPEARANCES

For Petitioner: Jesse J. McCreary Jr., Esquire

Assistant School Board Attorney 11601 Biscayne Blvd., Suite 102 North Miami, Florida 33181

For Respondent: Elizabeth Du Fresne, Esquire

Suite 208, 1492 South Miami Avenue

Miami, Florida 33130

By this petition the Dade County School Board (Board or Petitioner) seeks to dismiss James Carter (Carter or Respondent) as an employee of the Dade County School Board. In support of the petition, Notice of Charges were filed and served upon Carter alleging numerous incidences of unauthorized absences from his assigned duties in violation of Florida Statutes 231.44. The charges further alleged that these unauthorized absences constitute wilful neglect of duty in violation of Florida Statutes 21.36(6). Reading of the charges was waived by the parties.

When the hearing convened at the scheduled time, Carter was not present.

His attorney acknowledged receipt of the notice of hearing by Carter and of his acknowledgment the day prior to the hearing of his intent to be present.

Carter's attorney stipulated to the venue of the hearing, to the jurisdiction of the Hearing Officer, and, that at all times recited in the charges Carter was employed by the School board. The Board struck those parts of charges 11 and 12 alleging absence on October 30, March 22 and April 15, 1974. Thereafter, three witnesses testified on behalf of the Board.

FINDINGS OF FACT

1. Thomas J. Smith, principal at Citrus Grove Junior High School was Carter's supervisor during school years 1974 and part of 1975. It is a mandatory requirement at this school that all teachers sign in and out each

   school day. As alleged in charges (2) through (4) Carter did not sign in or out on November 27, December 11 and December 12, 1974; as alleged in charge (5) on December 18, 1974, Carter did not sign in until 12:30 P.M. and missed his first class which started at 11:37 A.M.; as alleged in charge (6) Garter on December 18, 1974, left school at 3:00 P.M. without permission; as alleged in charge (7), on December 19, 1974, Carter left school at 1:00 P.M. without permission; as alleged in charge (8), on December 20, 1974, Carter was absent from school without authority; as alleged in charge (9) on January 8, 1975, Carter appeared at school at 12:15 P.M. to sign in, but wrote that he arrived at 11:00 A.M.; and as alleged in charge (10) Carter signed in at 10:00 A.M., stated he had to take his son to the doctor, would return at 11:37 A.M., but remained absent without authority for the balance of the day. No statement from a physician indicating Carter was unable to work on the days he was charged with unauthorized absence was received. Principal Smith held numerous conferences with Carter to discuss his absence problems with the last conference occurring on January 6, 1975. At this conference he advised Carter he could not recommend him for employment next year. Carter did not return to Curtis Grove Junior High School subsequent to January 10, 1975.

   
   

2. Richard Artmeier is assistant principal at Ponce de Leon High School, was so serving in October and November 1974, and was Carter's supervisor at his assigned school bus unloading duties. He maintained records of attendances at or absences from the assigned school bus duties. As alleged in charge (11), Carter failed to show up for these duties on October 11,14,15,24,25,30, and 31, and on November 4,5,6,7,8 and 12, 1974. He was due to report for this school bus duty at 8:15 A.M. and remain there until 8:40 A.M. Mr. Artmeier talked to Carter about Carter's absences from this assigned duty, and advised Carter that he (Artmeier) had been assigned to check on those assigned school bus unloading duties. Carter offered no legitimate excuse for his absences. Exhibit 1 is a copy of the original records maintained by Mr. Artmeier insofar as it reflects the absences of Carter. Its admission into evidence was objected to by Carter's Attorney on the grounds that the original showed absences of a Mr. Dixon which had been blanked out on the copy offered and it was, therefore, inconsistent with Mr. Artmeier's testimony.

   
   

3. James B. Randolph has been principal at West View Junior High School since July, 1973, and maintains attendance records on assigned teachers. As alleged in Charge 12, as amended at the hearing, Carter was absent without authority on Aug. 28 and 31, 1973; September 10, 18, 21 and 24, 1973; October 1, 2, 3, 5, 8 and 9, 1973; November 7, 8, 9, and 29, 1973; December 5, 10, 14 and 17, 1973; January 2, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 25 and 1/2 day June 28, 1974; February 6, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26 and 27, 1974; March 1, 7, 8, 11, 14, 18, 19, 20 and 21, 1974; April 24 and 29, 1974; and May 3, 10, 13, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and 30, 1974. Principal Randolph held numerous conferences with Carter relative to his absences. In August, 1973, he held a conference with Carter regarding Carter missing the first day of school. Carter's only excuse was he forgot school opened that day. He acknowledged a problem existed but did not reveal it to Mr. Randolph. At the expiration of the school year Principal Randolph submitted an evaluation of Carter as C, or 3.0, which is deemed unsatisfactory. Despite this evaluation Carter remained an employee of the school board during the school year commencing in the Fall of 1974.

   
   

4. Carter's attorney was allowed to proffer that if Carter had been present he would testify that he had serious personal problems which started with a divorce in 1972. In 1973, he started having stomach troubles, was advised that he might be developing an uncer and was advised to take Malox.

   CONCLUSIONS OF LAW

   
   

5. The evidence was unrebutted that Carter was absent without authority essentially as alleged. There were one or two minor discrepancies between the testimony of two witnesses and Exhibits 1 and 2 from which they testified. These discrepancies were noted by the attorney for Carter and, for the purpose of the Hearing Officer's Recommendation, these discrepancies are considered in the light most favorable to Carter.

   
   

6. At the close of the board's case, the attorney for Carter moved for a dismissal of the charges on two grounds. First, it is contended that the absences in school year 1973-1974 were condoned by the School Board's actions in rehiring Carter for school year 1974-1975. This argument is more unique than meritorious. If the law required that teacher's delicts could be considered only in the year committed, few would be given the second chance that was afforded to Carter.

   
   

7. Second, it was contended that the charge of willful neglect of duty was not proven by proof of absence without leave. While one or two unauthorized absences standing alone would not support the allegation of wilfulness, here there were nearly 100 unauthorized absences within a period of 1 1/2 years after which it appears that Carter was suspended from duty. The only testimony to support this conclusion (which is not material to this proceeding) was the testimony of Principal Smith that after January 10, 1975, Carter never returned to work. When the numerous counseling sessions received by Carter are considered, along with the pattern of absences without leave which in January, February and March, 1974, covered more than one-half of the school days in those months, this is sufficient to prove willful neglect of duty.

   
   

8. It is noted that the absence without leave and willful neglect of duty charges both flow from the same act of respondent. Were this a criminal trial they would merge for the purposes of punishment. Cone v. State 285 So 2d 12 (1973). While this is not a criminal trial, it is penal in nature and to fully protect the rights of the respondent the two charges will be merged for the purpose of determining the appropriate recommended action. From the foregoing,

It is concluded that Carter is guilty of violation of Section 231.36(6) and 231.44, Florida Statutes. It is therefore,

RECOMMENDED that he be dismissed from further employment by the Dade County School Board.

ENTERED this 20th day of June, 1975, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Elizabeth Du Fresne, Esquire Suite 208

1492 South Miami Avenue Miami, Florida 33130 Attorney for Respondent

Phyllis O. Douglas, Esquire Assistant School Board Attorney 1410 Northeast 2nd Avenue Miami, Florida 33132

Jesse J. McCrary, Jr. Suite 202

11601 Biscayne Boulevard North Miami, Florida Attorney for Petitioner

Docket for Case No: 75-000276

Orders for Case No: 75-000276