STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. MCFATTER, )

Superintendent of Schools, )

Broward County, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3071

)

SAUNDRA BELCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on February 8, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William S. Cross, Esquire

4540 North Federal Highway

Fort Lauderdale, Florida 33308 For Respondent: No appearance

BACKGROUND

These proceedings began on October 20, 1982 when Petitioner William T. McFatter filed a Petition for Dismissal against Respondent Saundra Belcher. On November 2, 1982 Ms. Belcher requested a formal administrative hearing on the allegations of the Petition. On November 9, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final bearing.

At that hearing Petitioner presented the testimony of witnesses and offered Petitioner's Exhibits 1-12 which were received into evidence. Respondent failed to appear at the final hearing. At the conclusion of the hearing Petitioner waived his right to submit proposed findings of fact or a proposed Recommended Order. Section 120.57(1)(b)4. Florida Statutes (1981).

FINDINGS OF FACT

1. At all times material to the facts alleged in the Administrative Complaint Respondent has been employed by the School Board of Broward County, Florida, as a teacher on continuing contract at Crystal Lake Middle School.

   
   

2. Notice of the final hearing was sent to Respondent on January 4, 1983 to her address at 5225 North Dixie Highway, Ford Lauderdale, Florida 33334.

   The Notice of Hearing which was sent from the Division of Administrative Hearings was not returned as undelivered by the United States Postal Service. The record does not reflect that Respondent made any attempt to contact either counsel for the Petitioner or the Hearing Officer concerning a continuance of these proceedings or providing any explanation for her failure to appear at the final hearing.

   
   

3. On May 15, 1980 Ms. Belcher failed to report for work as a classroom teacher without advance notice to the administration of Crystal Lake Middle School as required by school policy. She was absent the entire day and her failure to appear caused considerable administrative difficulty in securing a replacement teacher without prior notification. Her principal at that time, Ms. Jean Webster, sent a memorandum to Ms. Belcher which stated the following:

   
   

   On Thursday, May 15, 1980, you were absent from your job and failed to report that you were going to be absent either to your

   department head or to me. This is less than responsible action on your part and will be considered an act of insubordination should it happen again.

   
   

   This memo may be considered a written reprimand and will be placed in your personnel folder.

   
   

   The memorandum was received and acknowledged by Ms. Belcher.

   
   

4. On October 14, 1982 Respondent was absent from her teaching assignment without leave. She failed to give any prior notice of her absence to the school principal or any other supervisor as required by school policy. The absence of Ms. Belcher was not discovered until one of her students went to another teacher's room to report that Ms. Belcher's unattended students were misbehaving and throwing objects at each other. As a result of the second unauthorized leave of absence without prior notice, her new principal, Mr. Thomas J. Geismar recommended to the Assistant Superintendent of Personnel that Ms. Belcher's contract of employment be terminated.

   
   

5. Mr. Geismar's decision to request Ms. Belcher's termination was influenced by her prior conduct on September 23, 1980 when she was discovered by a member of the administration to be falling asleep in front of her class during a regularly scheduled class period. During that time her students were out of control. They made disparaging remarks about Ms. Belcher appearing to be either high or on drugs. The incident was reported to Mr. Geismar who, upon interviewing Ms. Belcher, determined that she was either intoxicated or drugged and was in no condition to teach a class of middle school students. At the time Ms. Belcher attributed her condition to having taken cold medicine. She was sent home in order to recover from whatever was affecting her.

   
   

6. On numerous instances, Ms. Belcher fell asleep while on duty in front of her students during the school year 1981-1982. When Ms. Belcher fell asleep her unsupervised students became boisterous and threw things at each other. Prior to falling asleep Ms. Belcher frequently received a back and neck rub from one of her students.

   
   

7. After Ms. Belcher's last absence without leave or prior notice on October 14, 1982, it appears that the administration at Crystal Lake Middle

   School solicited negative comments about Ms. Belcher's teaching behavior. This inference is raised by four letters all dated October 19, 1982 addressed to Mr. Geismar from respectively, J. Kay Betzoldt, Jo Nell Stevenson, Jan Mascia and Walter S. Tilgham. The most serious incident about Ms. Belcher's behavior was raised by Ms. Betzoldt.

   
   

8. During fifth period in the last quarter in the 1981-1982 school year, Ms. Betzoldt saw Ms. Belcher in front of her class receiving a "back rub" from one of Ms. Belcher's students. The student was observed standing behind Ms. Belcher reaching forward massaging her breasts. It appeared that Ms. Belcher was not aware of what was happening. When the student realized that Ms. Betzoldt was observing him, he moved his hands to the shoulders of Ms. Belcher. Ms. Betzoldt did not report the incident to the school administration until her letter of October 19, 1982.

   
   

9. The contents of the other teachers' letters dated October 19, 1982, were corroborated by the authors' live testimony at the final hearing. They support the allegations against Respondent that on numerous occasions she has slept in the presence of her students when she should have been teaching them.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

    
    

11. These proceedings are brought pursuant to Section 231.36(6), Florida Statutes (1981), which provides:

    
    

    . . . any member of the instructional 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 insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. . . .

    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 canceled. . . .

    
    

12. Petitioner has proven that Respondent by virtue of her second unauthorized leave without prior notice on October 14, 1982 was guilty of an act of gross insubordination. She was specifically warned after her first unauthorized leave without prior notice on May 15, 1980 that such further acts would be considered insubordination. An absence without prior notice with no reasonable explanation therefor causes a serious disruption of a teacher's class and imposes on the school administration an inordinate burden to cover the absent teacher's class.

    
    

13. Respondent's absence without authorization and prior notice on May 15, 1980 and on October 14, 1982, and her sleeping while on duty in front of her students together constitute a willful neglect of duty by Respondent.

14. Respondent's practice of receiving back rubs from a student or students is misconduct in office. Such an activity would be most inappropriate outside school and it is even worse in a classroom situation. It does not however, rise to the level of immorality even though in one instance a student did massage Respondent's breasts as observed by Ms. Betzoldt. The record does not reflect Ms. Belcher's awareness of what was happening. The fact that she put herself in a position for such conduct by falling asleep while receiving a back rub indicates an acute lack of judgment required of teachers.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the School Board of Broward County, Florida, enter a Final Order dismissing Ms. Saundra Belcher as a continuing contract teacher and cancelling her contract of employment.

DONE and RECOMMENDED this 6th day of April, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1983.

COPIES FURNISHED:

William S. Cross, Esquire 4540 North Federal Highway

Fort Lauderdale, Florida 33308

Saundra Belcher

5225 North Dixie Highway

Fort Lauderdale, Florida 33334

William T. McFatter Superintendent of Schools Broward County School Board 1320 Southwest 4th Street

Fort Lauderdale, Florida 33312

Donald J. Samuels, Chairman School Hoard of Broward County 1320 Southwest 4th Street

Fort Lauderdale, Florida 33312

Docket for Case No: 82-003071

Orders for Case No: 82-003071