E. (ED) FENN, Superintendent ) of Leon County Schools, Leon ) County, Florida, )
vs. ) CASE NO. 79-1618
DAVID B. CLARK, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 29 August 1979 at Tallahassee, Florida.
For Petitioner: Charles A. Johnson, Esquire
By Notice of Charges filed 29 June 1979 the Superintendent of Leon County Schools seeks to terminate the employment of David B. Clark, Respondent, a teacher with continuing contract status. As grounds therefor it is alleged that Respondent applied for an unpaid leave of absence for the 1978-79 school year to continue higher education, and, after the leave was granted, Respondent failed to attend an institution of higher learning. These acts of Respondent are alleged to constitute such misconduct in office and gross insubordination as to justify termination of Respondent`s continuing contract status.
Two witnesses were called by Petitioner, Respondent testified in his own behalf and 6 exhibits were admitted. There was no real dispute regarding the facts here involved. Proposed Findings of Fact submitted by the parties inconsistent with those below either were not supported by competent and substantial evidence or were deemed immaterial to the results reached.
David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved.
By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose
of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies.
At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration.
In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else.
Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year.
Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher.
After the first semester, Respondent quit his sales job and worked
full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took.
After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed.
Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Grounds for dismissal of a teacher are contained in Section 231.36(6), Florida Statutes, which provides in pertinent part:
Any member of the district administrative or supervisory staff and any member of the instruc- tional staff, including any principal, 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 insubordination, willful neglect of duty, drunkenness, or con- viction of any crime involving moral turpitude.
The Notice of Charges states that the grounds relied upon by the Superintendent in dismissing Respondent are misconduct in office and gross insubordination.
Misconduct is defined in Black's Law Dictionary, Revised, Fourth Edition as:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impro- priety, mismanagement, offense, but not negligence or carelessness. Mandella v.
Mariano, 61 R.I. 163, 200 A. 478, 479.
Section 6B-4.09(3), Florida Administrative Code, provides:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system.
Here Respondent in good faith applied for a leave of absence fully intending to enroll at Florida State University in a Master's program. Due to circumstances over which he had no control, the funds which he reasonably expected would be forthcoming became unavailable and he was financially unable to pursue the graduate studies.
The Agreement between the Leon County Teachers Association and Leon County School Board provides in pertinent part in Article XVI:
An unpaid leave of absence may be granted to any employee for one year provided that a qualified teacher can be found to take his/her place and provided that such leave shall be taken in semester increments.
Application for such leave must be made at least thirty (30) days prior to the semester in which leave is to commence.
Prior to the time that unpaid leave was scheduled to commence, Respondent notified school authorities that he was unable to pursue the full- time graduate studies he had intended. Here no evidence was offered that Respondent's effectiveness in the school system has been impaired by the events surrounding his leave of absence. Before such evidence could be considered, it would be necessary to find the acts of Respondent in this regard constituted an offense. Even if an offense was committed, evidence that the commission of this offense seriously impaired Respondent's effectiveness in the school system must be shown. Boyette v. State of Florida, Professional Practices Council, 346 So.2d 598 (Fla. 1 DCA 1977)
Absent such proof these actions of Respondent do not constitute misconduct as defined above.
Gross insubordination implies considerably more than simple insubordination. The latter is defined in Black's, supra, as:
State of being insubordinate; disobedient to constituted authority. Refusal to obey some order which a superior officer is entitled to give and have obeyed. Not synonymous with incompetency. "insubordina-
tion" by a servant imports a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders. [Citations omitted]
Section 6B-4.09 (4), Florida Administrative Code, provides:
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.
No evidence was presented that Respondent violated any rule of the school board or disobeyed the direct or indirect orders of any school board official. Even had Respondent been ordered by a responsible official of the school board to pursue the graduate program for which he had been granted leave, this would not have been a reasonable order because Respondent's financial position rendered it impossible, or virtually so, for him to comply.
Gross insubordination implies a willful, intentional and disrespectful refusal to obey a lawful and direct order. No evidence of such conduct on the part of Respondent was submitted.
From the foregoing it is concluded that Petitioner has failed to present any competent and substantial evidence that the acts of Respondent in applying for leave and his conduct thereafter constitute misconduct in office or gross insubordination as alleged. It is therefore
