STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LEON COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1367
)
VERNIE M. SMITH, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above captioned matter, after due notice, on October 3-5, 1979, before Thomas C. Oldham, Hearing Officer.
APPEARANCES
For Petitioner: Charles A. Johnson, Esquire
2757 West Pensacola Street Tallahassee, Florida 32304
For Respondent: S. Gunter Toney, Esquire
200 East College Avenue Tallahassee, Florida 32301
ISSUE PRESENTED
Whether Respondent's employment with petitioner should be terminated pursuant to Section 231.36, Florida Statutes, and School Board Policy No. 2.25, as set forth in Notice of Charges, dated June 12, 1979.
FINDINGS OF FACT
Respondent Vernie M. Smith commenced employment with Petitioner School Board of Leon County in 1967 as a secretary and bookkeeper in the Transportation and Maintenance Office. She served in this capacity for a period of approximately eighteen months and then obtained private employment. In 1969 she returned to the Transportation Department as a secretary and has remained there continuously since that time, except for a six-month period in 1973, when she served as a secretary at the Leonard Wesson School, Tallahassee, Florida. Since 1975, Respondent has been employed in the capacity of Routes and Operations Supervisor, which involves supervision and coordination of the activities of school bus operators and scheduling bus routes. (Testimony of Respondent, Petitioner's Exhibit 1)
During the period 1974 until March 1978, Respondent's immediate supervisor was Frank Barber, Director of Transportation. Commencing in 1975, Barber's supervisor was Cecil Hartsfield, Assistant Superintendent of Operations. During the first three years of Barber's tenure, he felt that
Respondent did a good job and gave her exceptionally high performance evaluations. She received commendatory letters from school officials, including the Superintendent, concerning her work during this period. However, Barber experienced difficulties with Hartsfield during the school year 1977-78 which he partially attributed to disloyalty on the part of Respondent in providing misinformation concerning him to Hartsfield. No evidence was presented at the hearing to support Barber's perception of Respondent's disloyalty. (Testimony of Barber, Respondent, Petitioner's Exhibit 10, Respondent's Exhibits 4-6)
Upon Barber's departure in the spring of 1978, Respondent served as the acting Director of Transportation for about three months. She considered applying for the position on a permanent basis but refrained from doing so after Hartsfield advised her that it was doubtful if the School Board would approve her appointment. The job required a college degree and Respondent had only an eleventh grade education. In June 1978, Conway McGee was hired as Director of Transportation. In August, McGee learned that Respondent did not possess a state chauffeur's license although such a license was a requirement for the incumbent of her position. Respondent had an operator's license, but told McGee that her poor vision in one eye precluded her from obtaining a chauffeur's license. McGee took no action to verify this statement or to otherwise require Respondent to obtain a chauffeur's license. (Testimony of McGee, Respondent, Petitioner's Exhibit 1)
In February 1979, Respondent was obliged to complete a quarterly state report on operations of the county bus system. The preparation of such reports normally required that she work overtime for which she was not paid, but which could be taken as compensatory time during regular work days. During the period, she also was given an assignment by McGee to plan an extra bus route involving a large number of children. Although McGee had authorized compensatory time, if necessary, for such purposes, he later reviewed Respondent's time records and instructed the department bookkeeper to remove credit for eighteen and one-half hours of compensatory time. McGee had not checked Respondent's actual working hours, but was of the opinion that such time was excessive. He did not inform Respondent of his action in this regard and she later discovered it When she checked her leave record. (Testimony of Respondent, McGee, Driggers)
Respondent went on vacation in March 1979. While she was absent, a parent called the Transportation Office and stated that she had been attempting to have a school bus stop to pick up her child since the fall of 1978, but that her request had been denied. McGee reviewed the particular route and decided that Respondent should have permitted the bus to pick up the child at an earlier date. He also noted that the routing form did not contain the name of the current driver and should have been updated in this respect. However, the request previously had been denied because there had been no place at the child's home for the bus to turn around and it was within the distance which required a student to walk to the bus stop. (Testimony of McGee, Driggers, Petitioner's Exhibit 7)
Respondent's work hours were 6:00 A.M. to 2:30 P.M. On March 26, 1979, Respondent was absent from work due to illness. McGee had previously instructed her that in such instances she was to call Marjorie Conway, a coworker, in order that that employee could take over Respondent's duties at 6:00 A.M. He also had told Respondent that if she could not reach Mrs. Conway, she was to advise him of the situation. On March 26, Respondent was unaware that McGee had moved his residence. She was unable to reach him by telephone, and therefore called Reubin Brooks, the garage supervisor, at 5:00 A.M. and asked him to advise McGee
of her absence. Brooks did so. Respondent had not called Mrs. Conway because she felt that there was insufficient time for her to arrive at the office from her home at Wakulla, Florida. On April 9, 1979, McGee placed a written reprimand of Respondent in her personnel file for failing to call him directly on March 26. Respondent believed that the reprimand was unjust and attempted to have it removed from her file by informal requests to school board authorities. These efforts did not succeed and therefore she instituted grievance procedures with the assistance of an attorney. After a hearing before Hartsfield, it was determined by him that the reprimand was appropriate, but that it would be removed from her personnel file in one year. During the same hearing, Respondent protested the disallowance of her compensatory time. Hartsfield reversed McGee and restored credit for the eighteen and one-half hours that McGee had previously disapproved. (Testimony of McGee, Hartsfield, Respondent, Petitioner's Exhibit 4)
On March 29, 1979, the assistant principal of Fairview Middle School called Respondent and asked her to see if McGee could attend a meeting that he was going to have on April 3 with some parents who had made a complaint about a bus driver. He planned to ascertain the parents' problem at the meeting before discussing the matter with the particular bus driver. Respondent noted the meeting on McGee's calendar. At the meeting, the parents became upset because the driver was not there, and McGee felt that Respondent should have notified the driver to be present. (Testimony of Carter, Respondent, McGee, Respondent's Exhibit 3)
In the fall of 1978, McGee had installed a counter in the department office to restrict access of the bus drivers to the area in which the administrative employees performed their duties. Nevertheless, a coffee pot was located on the administrative side of the counter and the drivers frequently entered the area to obtain coffee if the clerical employees were not present or busy. Several drivers complained that another driver, Helen Smith, frequently was permitted to remain in the administrative area. McGee asked Respondent on several occasions to see that all drivers remained behind the counter. However, Hartsfield had told one of the administrative employees that the drivers could come behind the counter for coffee or to use the bathroom or telephone. (Testimony of McGee, Respondent, Driggers, Conway)
On one occasion during the school year, weight restrictions placed on bridges on North Meridian Road required a study as to possible change of bus routes and drivers. McGee discussed the matter with Respondent as to changing the route of a certain driver. She advised him that prior to his tenure, this particular driver had been threatened with a weapon by a parent and that she had therefore taken him off the bus route. McGee agreed not to change the driver, but claimed at the hearing that Respondent had said it would be too much work to make so many changes. Respondent denied making such a statement at the hearing. On another occasion during the school year, Respondent forgot to assign a driver to pick up a group of school children. (Testimony of McGee, Driggers, Respondent)
On April 11, 1979, a group of the bus drivers requested a meeting with Hartsfield to hear their complaints. At the meeting, attended also by McGee, the drivers were concerned about statements made by others attributed to McGee to the effect that the drivers would be fired for pulling off a road to stop at a store or for running out of gas on their routes. Although these statements had not been made to anyone by McGee, both he and Hartsfield were of the opinion that the drivers had said that Respondent had quoted McGee in those respects. Actually, however, the statements were made by other personnel of the department
and not the Respondent. At the meeting, other complaints were raised against McGee by certain of the drivers concerning their working conditions and his lack of support regarding problems with other school officials. Some of these drivers complained about McGee's unfair censure of them as a result of bus accidents. (Testimony of McGee, Hartsfield, Gunn, Harvey, Harley, Tinnell, Taylor, Respondent, Petitioner's Exhibit 5)
At about 5:00 P.M. on April 19, 1979, McGee found that his private automobile which was parked in the department compound would not start. He was due to attend a meeting the next day and asked his garage supervisor, Reubin Brooks, if he would check the car the following day. It had been a long- standing practice for Brooks to assist departmental employees by performing minor repairs to their automobiles in such situations. Brooks always arrived an hour or so early for work and did not take a lunch hour or claim overtime for such period. The next day, Brooks checked the fan belt of McGee's automobile and applied jumper cables and let the motor run about five minutes. Since the compound parking area was being paved, he drove the car to the shop and ordered a new battery which he installed that day. He estimated that the entire work he performed on McGee's car took about ten minutes. Although there were dead-lined buses in his garage on April 20, this was not unusual since buses were dead- lined every day in the department and the time spent on McGee's car had not interfered with his regular work. Respondent observed Brooks working on the vehicle outside her office and thereupon secured an office camera and took photos of the scene through a window. At a subsequent meeting with Hartsfield on May 8 at which Respondent had complained about McGee's "call in" requirements, she showed Hartsfield the photographs and indicated that the car had been worked on during "company time." Hartsfield told McGee about the photographs several days thereafter. Respondent took the photographs on "impulse" because she thought such activity was a problem in the department and because she felt that her job might be in jeopardy at that time. (Testimony of McGee, Brooks, Ferguson, Hartsfield, Respondent, Driggers, Conway, Respondent's Exhibit 7)
Respondent's annual performance evaluation for the period ending April 30, 1979, was completed and signed by McGee on May 5, 1979. The evaluation form provided for the entry of ratings in ten different categories as either "subnormal; frequent and repeated errors", "normal; seldom repeats errors", or "exceptionally high; rarely makes errors." Respondent was rated "subnormal" in six of the categories and "normal" in the remaining four categories of quality of work, cooperativeness, personal appearance, and tardiness. The "subnormal" ratings were for quantity of work, work attitude, reliability, health, absence, and general evaluation. As to the reliability category, McGee noted that Respondent had either been off or worked short days on over 57 work days, and as to the health category, he commented that she had lost 17 days due to illness. He also made a general comment that Respondent was capable of doing more and better work and that she was in "somewhat of a rutt [sic]; having worked in this department for many years." Respondent's absences from work during the year were authorized by her supervisor and for legitimate purposes.
On May 9, McGee called the Respondent into his office and handed her a copy of the evaluation. After looking at it, Respondent crumpled it up and threw it toward McGee's desk stating "This is what I think of this and you too." She left the office and came back shortly thereafter accompanied by Driggers.
At this time, she informed McGee that she thought she had been treated unfairly by him and that the evaluation was inaccurate. McGee then gave her another copy of the evaluation and she left the office. Although Respondent was upset and raised her voice somewhat during the encounters with McGee concerning her
evaluation, she did not shout at him. (Testimony of McGee, Respondent, Brooks, Conway, Driggers, Petitioner's Exhibits 3, 6)
On May 10, 1979, McGee sent an office memorandum to Respondent stating that she was suspended with pay immediately until a hearing could be held to decide the outcome of his recommendation to the superintendent that her employment be terminated. The memorandum further stated that the incident involving the evaluation form and other reasons which were unspecified in the memorandum were the basis for the recommendation. Thereafter, on June 26, 1979, the Leon County School Board considered charges filed against Respondent by the Superintendent of Schools, suspended Respondent without pay and referred the matter for hearing to this division. (Respondent's Exhibit 1, case pleadings)
In July 1978, Respondent had moved from Leon to Gadsden County. Her two children had previously been attending Leon High School in Tallahassee. One was a special education student in the 10th-grade and the other was due to enter his senior year in the fall. In her desire to ensure that the latter child would graduate from Leon High, Respondent listed the address of a friend in Tallahassee as the residence of her children. In October, Respondent made McGee aware of the fact that she had children attending school in Leon County even though she then resided in Gadsden County. However, he took no action in this regard at the time. In May 1979, a school investigation revealed that Respondent's children had not lived at the Tallahassee address during the school year. On May 29, Respondent was informed by the Director of Student Services that her children would not be allowed to attend Leon County Schools for the 1979-80 school year unless it was shown that her primary residence was in Leon County. Thereafter, the senior student graduated from Leon High School and Respondent was granted an exception to school policy to permit the other child to remain in Leon County Schools due to the fact that he was in the exceptional student program. (Testimony of McGee, Respondent, Pla, Petitioner's Exhibits 2, 9, Respondent's Exhibit 2)
Respondent's performance of duty in the school system under prior directors of transportation during the years 1966-1974 was exemplary and demonstrated her dependability and competence in the department. Her relationships with principals of Leon County Schools over the years were excellent and she was invariably cooperative and helpful in assisting such officials in solving school transportation problems. (Testimony of Sullivan, Coggins, MacElwee, Carter, Murphy, Montford, Ferrell, and Ingram, Chambers, (Stipulation))
CONCLUSIONS OF LAW
Petitioner seek to dismiss Respondent from her employment under the authority of Section 231.36, Florida Statutes, which provides pertinently as follows:
231.26 Contracts with instructional staff.--
* * *
(6) Any member of the administrative or supervisory staff . . . may be suspended or dismissed at any time during the school year; provided that the charges against
him must be based on immorality, misconduct in office, incompetency, gross insubordi- nation, willful neglect of duty, drunkness, or conviction of any crime involving moral
turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if the charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall deter- mine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his contract of employment shall be thereby cancelled.
The charges in this case allege misconduct in office, willful neglect of duty, gross insubordination, and incompetency as grounds for dismissal. The foregoing terms are defined in the rules of the State Professional Practice Council in Chapter 6B-4, Florida Administrative Code, with regard to instructional personnel, but are not made applicable to administrative employees. Accordingly, the grounds for dismissal must be viewed in the light of ordinary standards of conduct as applied to the established facts of the case.
Misconduct in Office
Petitioner alleges that Respondent committed this ground for disciplinary action in the following manner:
Knowingly and deliberately giving a false address to school officials to enable her children to attend school in Leon County, even though she and her children reside in Gadsden County. Respondent conceded at the hearing that she had knowingly provided a false address for the purpose described in the charge and the evidence supports her admission in this respect. Petitioner predicates its allegation that such an act constitutes misconduct in office by alleging that Respondent was an employee of the school system charged with the responsibility of enforcing attendance regulations. While this allegation may be true with respect to ensuring that students obey school regulations while utilizing the bus system, there was no showing that her job responsibilities had anything to do with enforcing attendance regulations concerning enrollment. It is considered that the term "misconduct in office" reasonably must be restricted to situations where the misconduct is related to or arises out of the performance of the employed's duties. Although Respondent's action in this regard should not be condoned, as it apparently may have been by her supervisor, such misconduct is not embraced within the stated ground for dismissal.
Excessive absenteeism, failure to follow work rules, failure to maintain a Florida Chauffeur's license as required by her job description. The evidence shows that Respondent was absent a great deal of time during the 1978- 1979 school year. However, in all cases, her absences were authorized by her supervisor and were for legitimate purposes. Although her absences may have caused a certain amount of inconvenience to her supervisor at various times, there was no proof adduced that such absences were excessive in relation to
other employees or that they exceeded a particular standard established under school regulations. In any event, even if excessive under such standards, it is not believed that such a practice would constitute "misconduct in office." The record is devoid of any evidence that Respondent failed to follow "work rules" in any material respect, and, again, such derelictions, even if established, would not constitute "misconduct" in office. In like manner, Respondent's failure to maintain a Florida chauffeur's license, which also was condoned by her supervisor during the school year, is not deemed to fall into such a category.
Refusal to sign 1978-1979 evaluation, throwing the evaluation form in the face of her supervisor, and by verbally insulting him. The evidence fails to show that Respondent was asked by her supervisor to sign her evaluation, but it does show that she threw the form at him, accompanied by intemperate language. Although Respondent's agitated state of mind at the time after viewing what she considered to be an unjustified evaluation is taken into consideration, her actions clearly constituted misconduct arising in and out of her duties.
Gross insubordination
The term "insubordination" is commonly defined as "unwilling to submit to authority." (See Webster's New Collegiate Dictionary, 1977 Ed) Respondent's alleged actions are viewed in this context as follows:
Evaluation form incident
As heretofore stated, Respondent committed misconduct in office by throwing the evaluation form at her supervisor and by using disrespectful language at the time. It is considered that her actions in this regard were indeed grossly insubordinate in that she failed to accord her supervisor with due respect, and in effect, was flaunting his authority by actions in the presence of other employees.
Subsequently attempting to coerce her immediate supervisor into changing the evaluation by accusing him of misuse of district resources to the assistant superintendent of operations. This charge was apparently based on the fact that Respondent showed photographs of work being done on her supervisor's car by county employees to his supervisor. The evidence reveals that Respondent was unaware of the contents of the evaluation until after she had shown the photographs to the assistant superintendent of operations. Consequently, the allegation is unsubstantiated.
Attempting to undermine the authority of the current and prior Director of Transportation by deliberately distorting information between the director and Transportation Department Employees. Petitioner failed to establish that Respondent had committed the alleged acts.
Willful neglect of duty
This ground is based on the same causes discussed above in paragraph (3)(b), i.e., excessive absenteeism, failure to follow work rules, and failure to maintain a Florida chauffeur's license. The evidence fails to establish that Respondent willfully neglected her duties in any regard in those respects.
Incompetency
This allegation is based on failure to properly perform duties regarding establishment of bus stops, making proper provision for substitute drivers, and failing to notify drivers of meetings. Aside from an isolated instance of Respondent's failure to notify a driver to make a run to pick up some children, none of the specific allegations was established by the evidence. On the contrary, it was shown that Respondent performed her duties in a most competent manner.
The established grounds of gross insubordination and misconduct in office as a basis for disciplinary action therefore consist solely of the incident involving the evaluation form. In this connection, Respondent's unwise and unnecessary actions undoubtedly were the culmination of growing friction with the Director of Transportation in the spring of 1979. The situation presents a classic example of a personality conflict emerging between a new supervisor and a subordinate with many years of service. The evidence bears out the fact that culpability for such a conflict is shared in part by both parties. Upon consideration of Respondent's prior record of service, and all the attendant circumstances, it is not believed that the severe penalty of dismissal is warranted for the lapse in judgment displayed by Respondent during the incident under consideration. It is considered that Respondent's temporary suspension without pay should constitute an adequate penalty for the established misconduct, together with an official written reprimand. Although Respondent testified at the hearing that she would be willing to resume her position as Route and Operations Supervisor in the event she were to be reinstated, it is obvious that such a situation may not be in the best interest of the school system. In such event, transfer to a similar position at her current salary schedule as a condition of reinstatement should be authorized.
The proposed Findings, Conclusions, and Recommendations filed by the parties have been fully considered. Those portions not incorporated in this Recommended Order are considered either unnecessary, or unwarranted under the facts and law of this case.
1. That the School Board of Leon County reinstate Respondent Vernie M. Smith to employment within the Leon County School System under the following terms:
That such reinstatement shall be without pay during the period of Respondent's prior suspension by the School Board.
That Respondent be issued a written reprimand for misconduct in office and gross insubordination as set forth in paragraphs 3c and 4a of the foregoing Conclusions of Law.
That Respondent be restored to her former position or transferred within the school system, as deemed appropriate by the Board.
DONE and ENTERED this 21 day of December, 1979, in Tallahassee, Florida.
THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
COPIES FURNISHED:
Charles A. Johnson, Esquire 2757 West Pensacola Street Tallahassee, Florida 32304
S. Gunter Toney, Esquire
200 East College Avenue Tallahassee, Florida 32301
Mr. N. E. (Ed) Fenn
Superintendent of Leon County Schools 2757 West Pensacola Street Tallahassee, Florida 32304
| Issue Date | Proceedings |
|---|---|
| Feb. 27, 1980 | Final Order filed. |
| Dec. 21, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 1980 | Agency Final Order | |
| Dec. 21, 1979 | Recommended Order | Respondent should be reinstated without pay until serves her old probation and should get written reprimand for insubordination/misconduct. |
