STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SUMTER COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1835

)

ARNOLD JAMES CONSTABLE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Bushnell, Florida on January 9-10, 1980 and at Tallahassee, Florida on March 28, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: John F. Wendel, Esquire

Post Office Box 5378 Lakeland, Florida 33803

For Respondent: Joseph Egan, Jr., Esquire

Post Office Box 2969 Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Respondent should be dismissed from employment with the Sumter County School Board pursuant to Chapter 221, Florida Statutes, as set forth in petition and notice of charges dated July 16, 1979, and amendment to petition, dated November 6, 1979.

In this proceeding, Petitioner alleges that Respondent has committed acts rendering him subject to termination of employment as a member of the instructional staff of the School Board of Sumter County, and cancellation of his continuing contract. The alleged acts are willful absence from duty without leave, misconduct in office, and willful neglect of duty in violation of Chapter 231, Florida Statutes. The charges stem from three alleged instances in January and February, 1979, of improper use of sick leave. The petition and charges were filed by the District School Superintendent and were referred by the Petitioner to the Division of Administrative Hearings on August 28, 1979.

Respondent filed a Motion to Dismiss the charges with the School Board prior to referral to this Division, alleging that he had not been given an opportunity to appear before the Board when it had considered the charges, and that the charges had been untimely filed. The motion was denied by the Hearing Officer on the merits and because Section 231.36(6), Florida Statutes, which

governs such disciplinary actions, does not require any specific procedures in processing cases prior to a final determination.

On November 6, 1979, Petitioner amended its petition to add an additional allegation of misuse of sick leave on January 12, 1979. Respondent opposed the amendment on the ground the allegation had not been brought before the School Board for action, and therefore should not have been referred to hearing. The Hearing Officer granted Petitioner's motion to amend the petition for the same reasons stated in the preceding paragraph. However, the scheduled date of final hearing was continued from November 29, 1979 to January 9, 1980 to provide Respondent an opportunity to adequately prepare his defense.

FINDINGS OF FACT

1. Respondent, Arnold James Constable, holds Florida Teaching Certificate Number 330507, Graduate Rank III, and is a member of the instructional staff of Petitioner School Board of Sumter County. He is employed pursuant to continuing contract as a physical education teacher at the North Sumter Intermediate School, Wildwood, Florida, and has been so employed since the beginning of the 1978-1979 school year. (Testimony of Respondent, Petitioner's Exhibit 1, Case pleadings.)

   
   

2. On December 30, 1978, Respondent was arrested in Altamonte Springs and charged with petit theft of merchandise from a department store. Respondent informed the police booking officer that his occupation was "fast order cook" and that he had a twelfth grade education. Respondent was employed as a short- order cook during the Christmas holidays in 1978.

   
   

3. On the evening of January 11, 1979, Respondent telephoned a substitute teacher, told her that he had gastro-intestinal flu, and asked if she would substitute for him at the school on the next day. She agreed and did substitute for Respondent at the North Sumter Intermediate School on January 12.

   Respondent also called the school secretary on the evening of January 11, and told her that he had severe stomach pains and would not be able to be at school the following day, but that he had arranged for a substitute teacher. On January 15th, Respondent told his school principal, Mrs. Josephine Strong, that he had been ill on January 12th and also during the preceding weekend. (Testimony of Davis, Respondent, Winkles, Strong, Petitioner's Exhibit 3.)

   
   

4. On January 12, 1979, Respondent was present at the Seminole County Court, Sanford, Florida, for arraignment on the pending charge against him. He pleaded not guilty to the charge. Thereafter, he was notified to be present at the County Court on February 5, 1979 with jury trial scheduled to be held during that week. (Testimony of Horneffer, Kugler, Sundvall, Petitioner's Exhibits 8- 9.)

   
   

5. On Sunday, February 4, 1979, Respondent asked his mother, Mrs. Elva Constable, to call the secretary at the North Sumter Intermediate School and tell her that he would not be present at the school the following day, but he said not to tell her that he was sick. Mrs. Constable called the school secretary that evening and told her that Respondent was sick and would not be at school the next day, and would need a substitute teacher. Respondent was not at the school on the following day, February 5, and a substitute teacher was obtained. On February 5, Mrs. Constable again called the school secretary and told her that her son was still sick, would not be at school on the following day, and would again need a substitute. Respondent was not present at the school on February 6, and a substitute was again obtained as a result of his

   absence. Mrs. Constable was aware of the pending criminal charge against her son in Seminole County. She admitted at the hearing that her son was not ill on February 5th and 6th, and that he lied to the school secretary concerning the reason for his absences because she was apprehensive that if school officials learned of such charge, Respondent might be suspended or dismissed from his employment. (Testimony of E. Constable, Winkles, Respondent, Petitioner's Exhibit 4.)

   
   

6. On February 5, 1979, Respondent appeared in the Seminole County Court and his trial was scheduled for the following day. On February 6, he represented himself at a jury trial and was acquitted of the pending charge. During the trial, Respondent appeared to be in good health. (Testimony of Horneffer, Kugler, McClug, Cadavid, Petitioner's Exhibit 8.)

   
   

7. The standard procedure to record absences for sick leave is for the school secretary to maintain a Sick Leave Compensation Application for the employee each school month. Absences for sick leave are recorded on the form which is signed by the employee and the school principal after the first absence. Subsequent absences are noted on the form but it is not signed again by the applicant. At the end of the month, the number of days absent are totaled, and the sick leave form is submitted to the County School Board office, along with the payroll. In January, 1979, Respondent's sick leave form reflects that he was absent on January 2 and January 12. The date of his signature thereon is January 2. In February, 1979, the form shows that Respondent was absent on February 5 and 6. His signature and that of the principal on the form are dated February 5 although they did not sign the form until some day subsequent to February 6. (Testimony of Winkles, Strong, Petitioner's Exhibits 3-4,190.)

   
   

8. The collective bargaining agreement between Petitioner and the Sumter County Educational Association provides that instructional personnel may use up to a maximum of four days per year for personal leave chargeable to accumulated sick leave provided the request submitted for such leave contains a statement setting forth reasons to substantiate the nature of the extenuating circumstances requiring the employee to be absent from his duties. The agreement provides that a request for such leave should be submitted to the county office through the principal at least 2 hours prior to the effective date of leave. The form for such personal leave with pay used in the Sumter County school system provides that application should be submitted to the county office one week prior to the effective date of leave. The teaching association has sought in past years to eliminate the requirement that a reason be stated in an application for personal leave. Discussions between both county officials and teacher representatives during bargaining sessions have included the subject of sick leave abuse by employees in utilizing such leave for personal purposes. However, there is no evidence that such abuse was a common practice by county school board personnel. In January and February, 1979, Respondent had four days of personal eave available for authorized use. (Testimony of Winkles, Strong, Foster, Harner, Edwards, Petitioner's Exhibits 7, 10-11.)

   
   

9. In 1976, while Respondent was teaching at Webster Elementary School, Webster, Florida, he received letters of admonition concerning improper paddling of students from Principal R. C. Foote. As a result of another paddling incident in February, 1978, the principal again censured Respondent in a letter, dated February 24, 1978. Further paddling incidents in early May, 1978, wherein Respondent purportedly used excessive force, resulted in a recommendation by the principal to the County School Superintendent, Joe R. Strickland, on May 8, 1978, that Respondent be suspended from teaching. Superintendent Strickland

   notified Respondent in a letter dated May 9, 1978, that he had requested the State Professional Practices Council to investigate the matter and make a recommendation concerning dismissal based on gross insubordination and conduct unbecoming a public officer. Thereafter, Respondent and a group of other teachers at Webster Elementary School brought allegations of misconduct against Principal Foote to the attention of the Professional Practices Council which ultimately led to an administrative proceeding and consequent disciplinary action against him. On June 15, 1978, Respondent was advised by the Superintendent that the School Board had assigned him to the North Sumter Intermediate School for the 1978-1979 school year. By letter of August 11, 1978, the Superintendent reprimanded Respondent and directed him to adhere to school board policies regarding corporal punishment in the future. (Testimony of Strickland, Respondent, Petitioner's Exhibits 14, 16-21)

   
   

10. The Foote incident was the subject of wide notoriety in the county and led to controversy within the black-white community. Respondent and the other teachers, who had made charges against the principal and later testified at his administrative hearing, were the subject of much newspaper and television coverage during the period May-December, 1978. Respondent was identified in the media as the leader of the group, based on statements attributed to various individuals including members of the School Board. The group of teachers, including Respondent, was apprehensive concerning possible repercussions against them with respect to their employment as a result of their participation in the matter. Respondent and one of the other teachers received anonymous threatening phone calls at night during this period. (Testimony of Respondent, Stephens, M. Everett, Newell, Rigsby.)

    
    

11. Respondent testified at the hearing and admitted that he had requested sick leave for his absences on January 12 and February 5-6, 1979, and that he was not ill on those particular days. His reason for not taking personal leave was to avoid the necessity of disclosing the fact of his arrest for petit theft in Altamonte Springs on a personal leave application. He feared that if his arrest became known, he would have been suspended from his instructional duties without pay, and having been previously suspended in 1977 on charges which later proved to be unfounded, he wished to avoid such a status again. He explained that he planned to have his mother call the school on February 4 and simply say that he would not be in the next day. Then, after his criminal trial, he intended to apply for personal leave for his absences. However, since his mother informed the school authorities that he was ill, Respondent was unable to later request personal leave. He also gave as a reason for taking sick leave for the absences that "he might as well use it" since he had to make court appearances. (Testimony of Respondent.)

    
    

12. Respondent was employed as physical education instructor at Webster Elementary School from school year 1973-1974 until the summer of 1978, when he was transferred to North Sumter Intermediate School. During the five year period at Webster, Respondent received satisfactory performance evaluations from Principal Foote, although several evaluations noted that Respondent did not accept constructive criticism in the proper perspective and that he needed to follow instructions in a more satisfactory manner. Respondent testified that he and Foote had opposite views as to the manner in which children should be treated, and that they argued frequently. Several teachers who were among the group who joined in allegations against Foote are of the opinion that Respondent was dedicated, had excellent rapport with children, and was concerned for their welfare. A parent of one of Respondent's students at Webster is of the opinion that he was well liked and respected by his students. (Testimony of Stephens, Everett, Newell, Williams, Lee, Respondent, Respondent's Exhibit 6.)

13. Respondent received a satisfactory evaluation rating at North Sumter Intermediate School during the school year 1978-1979. His principal is of the opinion that the Respondent "involved" the children better than his predecessors and that he had good relations with his students. Several teachers at North Sumter and a parent of students there are of the same opinion concerning Respondent's good relationship with his pupils. (Testimony of Strong, David, Rigsby, Wrigth, Knuth.)

    
    

14. Superintendent Strickland considers Respondent to have been an average teacher. Bernard R. Shelnutt, Jr., county school board instructional supervisor, has written performance evaluations concerning Respondent for the past four or five years and has consistently rated Respondent as a fine teacher who works well with children. (Testimony of Strickland, Shelnutt, Respondent's Exhibit 6.)

    
    

15. Respondent has been the county coordinator of the Special Olympic Program for handicapped children for a number of years. He has voluntarily spent a great amount of his own time in fund raising and supervision of the program with commendable results. His efforts in this respect were the subject of favorable testimony at the hearing from teachers and parents in the community. (Testimony of Respondent, Small, F. Everett, Smart.)

    
    

    CONCLUSIONS OF LAW

    
    

16. The statutory provisions under which Petitioner seeks to take disciplinary action against Respondent are Sections 231.36(6) and 231.44, Florida Statutes. Section 231.36(6) authorizes suspension or dismissal of any member of an instructional staff for various grounds, including those alleged, i.e., misconduct in office and willful neglect of duty. Section 231.44, F.S., provides as follows:

    
    

    231.44, Absence without leave. --

    Any member of the instructional staff of any district who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his contract shall be subject to cancellation by the school board.

    
    

17. The charges against Respondent essentially allege that Respondent falsely applied for and took sick leave on three separate days in January and February, 1979, and that therefore he violated Section 231.44 and is subject to dismissal and cancellation of his contract pursuant to that provision and Section 231.36. The evidence presented at the hearing is clear and convincing that Respondent made application for sick leave on the days in question when, in fact, he was not ill or otherwise unable to perform his duty in the school because of illness, and that he absented himself from his place of employment at the North Sumter Intermediate School on those days. Respondent admitted at the hearing that he had so acted on January 12, 1979, and that, although he had instructed his mother on February 4 to tell school officials that he would be absent on the next day without stating a reason, he nevertheless thereafter signed a sick leave application form for his absences on February 5 and 6, 1979. It is therefore considered that he was willfully absent from duty without leave on January 12 because he admittedly lied to the responsible school employees concerning his physical condition prior to absenting himself on that date. As to his absences on February 5 and 6, Respondent admitted that he intended to

    simply be absent on those days and, upon return, attempt to obtain personal leave authorization after the fact. Since he well knew that authorization for personal leave had to be obtained in advance, it is considered that those absences were also unauthorized and willful in nature.

    
    

18. It was held in School Board of Collier County v. Steele, 348 So.2d 1166 (Fla. 1st DCA 1977), that a teacher's violation of Section 231.44 by willful absence without leave is "misconduct in office" or "willful neglect of duty" for which discipline is authorized under Section 231.36(6). Accordingly, the remaining question is to fix an appropriate penalty for Respondent's misconduct in the light of his prior record of performance and the circumstances surrounding his actions.

    
    

19. Respondent sought throughout this proceeding to show that he falsified his leave applications because he feared that he would be suspended by school board authorities if it became known tht he was the subject of a pending criminal charge in Seminole County. He further sought to show that his involvement in the Foote disciplinary proceedings wherein he was aligned against the position of the Superintendent and School Board of Sumter County preceding his leave request had engendered such stress and apprehension on his part concerning his future with the school system that any penalty should be mitigated in the light thereof. He also claimed, in effect, that his actions in taking unauthorized leave were minor in nature and only became the subject of potential dismissal proceedings due to his unpopularity with School Board officials.

    
    

20. In considering the above contentions, it reasonably can be concluded that Respondent's allegations against his former principal made him persona non crata with supervisory officials in the county school system. The Hearing Officer restricted Respondent in presentation of specific matters in this regard for the reason that evidence of the motives or intent of the Superintendent or members of the School Board in initiating disciplinary proceedings against the Respondent was not a proper matter of inquiry in this de novo proceeding, absent a showing of a deprivation of due process as to Respondent's procedural rights, such as notice of charges and opportunity for a Chapter 120 hearing. Any claims of bias or prejudice on the part of School Board officials who will render a final order herein, may be pursued under Section 120.71, Florida Statutes.

    
    

21. Evidence showing Respondent's state of mind at the time he committed the offenses of unauthorized absence was permitted to be shown at the hearing. It is apparent from that evidence that Respondent had undergone a stressful situation in the months prior to his commission of the acts charged here. However, the evidence failed to establish that he was not fully aware of his actions at the times in question or that he did not consciously and deliberately falsely claim sick leave for the three days during which he was absent. It is noted, though, that his three absences stemmed from the single alleged theft incident which required successive court appearances, and that the absences all took place in a period of less than one month. It is also understandable that Respondent was fearful of disclosing the true reason for such absences in the light of his standing as a principal actor in the controversy in the community. Also, consideration should be given to the fact that Respondent has complied a satisfactory record of accomplishment during his previous six years as an instructor in the school system. It is therefore believed that dismissal and cancellation of his continuing contract would be an unduly harsh and inappropriate punishment for his actions. Suspension without pay from teaching duties for a period of six months would be an adequate and appropriate penalty.

    In addition, Respondent should forfeit compensation received for the period of his unauthorized absences, as required by Section 231.44, F.S.

    
    

22. The Proposed Recommended Order filed by Petitioner has been fully considered and those portions thereof which have not been adopted herein are considered to be either irrelevant, unnecessary, or unwarranted under the law and facts of the case. Although Respondent was granted an extension of time to May 19, 1980 within which to file a Proposed Recommended Order, none has been filed.

RECOMMENDATION

That Petitioner School Board of Sumter County suspend Respondent Arnold James Constable from his employment as a member of the instructional staff for a period of six (6) months without pay, and effect forfeiture of compensation for his unauthorized absences from duty on January 12 and February 5-6, 1979, pursuant to Section 231.36(6) and 231.44, Florida Statutes.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of May, 1980.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1980.

COPIES FURNISHED:

C. John Conigilio, Esquire Post Office Box 26 Wildwood, Florida 32785

John F. Wendel, Esquire Post Office Box 5378 Lakeland, Florida 33803

Joseph Egan, Jr., Esquire Post Office Box 2969 Orlando, Florida 32802

Docket for Case No: 79-001835

Orders for Case No: 79-001835