Judges: MARVIN E. CHAVIS
Agency: County School Boards
Latest Update: Jun. 08, 1990
Summary: This case concerns the issue of whether the Respondent should be dismissed from her teaching position in the Dade County School System for incompetence and willful neglect of duty. At the formal hearing, the Petitioner called as witnesses Patrick Gray, Richard Artmeir, Willie Joseph Wright, Jesselyn Brown, Olga Miyar, and Ira Wax. Respondent testified on her own behalf. The Petitioner offered and had admitted into evidence three exhibits. The Respondent offered and had admitted five exhibits dur
Summary: This case concerns the issue of whether the Respondent should be dismissed from her teaching position in the Dade County School System for incompetence and willful neglect of duty. At the formal hearing, the Petitioner called as witnesses Patrick Gray, Richard Artmeir, Willie Joseph Wright, Jesselyn Brown, Olga Miyar, and Ira Wax. Respondent testified on her own behalf. The Petitioner offered and had admitted into evidence three exhibits. The Respondent offered and had admitted five exhibits during the course of the hearing. Respondent's Exhibit 6 is a late-filed exhibit accompanied by a stipulation entered into between the parties to this action. This was admitted as a late-filed exhibit and is part of the record. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.Respondent engaged in willful neglect of duty, excessive absenteeism, and failure to report to duty when reassigned to another school. Terminate Respondent's employment and withhold backpay.
More
vs. ) CASE NO. 82-3469
Respondent. )
These problems were discussed by the assistant principal Olga Miyar, with Mrs. Altuzarra.
Subsequent to the conference with the assistant principal, the Respondent continued to accumulate absences. On December 11, 1981, the Respondent was sent a memo from the principal of Riverside Elementary School regarding the absences and inquiring about Respondent's intentions for the remainder of the school year. (See Petitioner's Exhibit 2). On December 16, 1981, Respondent received the memo and responded by letter stating that her mother had been seriously ill and that she intended to be back at her class on December 17, 1981. (See Respondent's Exhibit 2). As of December 11, Respondent had been absent from her class a total of 32 days. Respondent returned to the school on December 17, 1981, and acknowledged she had had some problems with absences but that she would be back after the holiday and do her job. Pursuant to a request and authorization, Respondent went on personal leave without pay beginning January 4, 1982. As of January 4, 1982, when her leave began, the Respondent had been absent from her class a total of 35 days since August, 1981.
On or about April 7, 1982, Respondent, while on leave without pay, was sent a letter requesting that she provide the School Board with a letter as to whether she intended to return to active teaching status when her leave ended on June 18. The Respondent's letter of intent was due within 30 days. As of June 7, 1982, no letter or response had been received from Respondent and a second letter was sent to her by the personnel office. On July 12, 1982, the personnel office was informed that Respondent intended to return to active teaching status.
Sometime prior to August 25, 1982, Respondent received written notification to return to Riverside Elementary on August 25, 1982. When Respondent reported to Riverside Elementary School on August 25, 1982, she was informed by the principal, Jesselyn Brown, that she had been assigned to another school and was no longer assigned to Riverside Elementary. Ms. Brown called the Area Office and informed Mrs. Altuzarra that the Area Office requested she go to the Area Office. Ms. Brown also informed Mrs. Altuzarra that her position had been reallocated to a different school and that as a result, she had been surplused and reassigned to Pine Villa Elementary School. On August 26, 1982, Respondent again reported to Riverside Elementary School and was again told by the principal, Ms. Brown, that she was assigned to Pine Villa Elementary, not Riverside Elementary. She was again instructed by the principal to report to the Area Office. Mrs. Altuzarra was also informed by the area personnel director and a line director that she was assigned to Pine Villa Elementary and that she should report to Pine Villa. Sometime later, Ms. Brown received a call from Mr. Pollock, a representative of the teacher's union, and she also explained to him that Mrs. Altuzarra had been surplused and was no longer assigned to Riverside Elementary.
On August 31, 1982, Respondent received a telephone call from Dr. Willie Joseph Wright, the principal of Pine Villa Elementary School. He informed her she was assigned to Pine Villa and asked why she had not reported to the school. Respondent stated that she had heard about Pine Villa and it was too far from her home and that she was not going to report.
On September 20, 1982, the Respondent met with Mr. Meers, Director of the South Area to which Respondent was assigned. He instructed her to report to Pine Villa. This meeting occurred at approximately 11:30 a.m. and the Respondent never reported to Pine Villa. The Respondent, in the meeting with Mr. Meers, stated she would report to Pine Villa Elementary.
Sometime prior to September 20, 1982, Respondent also received a telephone call asking her to report to Caloosa Elementary School for a possible
position there. She went to Caloosa Elementary, but was informed by the principal that there was no position for her at Caloosa Elementary. The Respondent had not received a letter or writing of any type requesting her to report to Caloosa Elementary.
On November 3 1982, Respondent and Mr. Bennie Pollock, United Teachers of Dade County representative, met with Mr. Richard A. Artmeir, Supervisor of the Division of Personnel Control, to discuss Respondent's failure to report to Pine Villa Elementary School and to also discuss her excessive absences during the 1981-82 school year. Subsequent to the meeting, Respondent was sent, by certified mail, a memorandum of the conference which included a reprimand for having willfully been absent from her assigned work location without authorization.
On October 15, 1982, Dr. Ira Wax, the Assistant Superintendent of the Office of Personnel, submitted to the Executive Director of the Division of Personnel Control of the Dade County School Board, a recommendation that dismissal proceedings be initiated against the Respondent.
Respondent testified that the only reason she never reported to Pine Villa Elementary was because she had not received a letter or writing assigning her to Pine Villa.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter to this action.
Florida Statute 231.36(4)(c)(1982), provides in relevant part:
Any member of the district administra- tive or supervisory staff and any member of the instructional staff, including any prin- cipal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be-based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a 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.
Pursuant to the above section, the Dade County School Board suspended and now seeks to dismiss the Respondent as a teacher in the Dade County School System. Specifically, Respondent is charged with incompetence and willful neglect of duty. The evidence did not specifically address or establish the Respondent's incompetency as a teacher. However, the evidence does establish willful neglect of duty on the part of Respondent.
Beginning in September, 1981, Respondent began accumulating absences which by November 20, 1981, totaled 20 absences. This is ten (10) in excess of
the ten (10) days leave the Respondent was entitled to for the entire school year. The excess absences were neither requested as leave by Respondent or approved by her principal or other superior. The absences had a substantial adverse affect on her class. The Respondent was counseled regarding these absences on November 20, 1981. In spite of the counseling, Respondent continued to absent herself without leave and accumulated fifteen (15) more days of absence between November 20, 1981, and December 17, 1981. Although it is unfortunate that Respondent's mother was seriously ill during this time period, that illness does not excuse the Respondent's failure to either fulfill her responsibilities as a teacher or to request and obtain authorization for leave without pay. Not until January, 1982, did Respondent request such leave.
The Respondent, after two written requests from the School Board, notified the personnel office that she would return to active teaching status for the 1982-83 school year. Respondent received written notice to report to her previous school, Riverside Elementary. When she reported, she was informed that she had been surplused and assigned to pine Villa Elementary. The Respondent was informed by her former principal at Riverside Elementary, the principal of Pine Villa, the area director, and a line director on at least five different occasions between August 25, 1982, and September 20, 1982, that she was assigned to Pine Villa Elementary and should report there. Even after a conference with the Supervisor of the Division of Personnel Control on November 3, 1982, she did not report to Pine Villa Elementary.
Respondent's sole reason given for not reporting to Pine Villa Elementary was that she had not been given notice in writing to report to Pine Villa. Such an explanation holds little merit in light of the fact that it only took one phone call for her to report to Caloosa Elementary. The evidence is consistent with the statement made by Respondent to Dr. Wright, the Principal of Pine Villa Elementary, and that is that Respondent just did not personally want to report to or teach at Pine Villa Elementary. There could have been no question after receiving the memorandum of the November 3, 1982, meeting that the Dade County School Board expected her to report to Pine Villa. Even after receiving that written memorandum, Respondent made no effort to report to Pine Villa Elementary.
Respondent contended that under Article XII, Section 9(2) of the contract between the Dade County Public Schools and the United Teachers of Dade, the Petitioner was required to give her written notice of her assignment to Pine Villa Elementary. Respondent argued that without such written notice, Respondent was not required to report to Pine Villa Elementary. That provisions provides:
In the event that the employee is surplused, when the employee is absent from active duty in the school system, the employee shall be promptly notified in writing.
Respondent's contention is without merit for several reasons. First of all, Respondent's leave terminated on June 18, 1982, and once she returned to Riverside Elementary on August 25, 1982, she was no longer "absent from active duty." After her return to active duty, she received notice from several persons in positions of authority over her to report to Pine Villa Elementary. She refused. Once she returned to "active duty", no written notice was required.
Secondly, there is no question that the Respondent received actual notice of her assignment to Pine Villa. The purpose of Article XII, Section (2)(c) is to ensure notice to the employee. That purpose was clearly met in the instant case.
Lastly, even if some type of writing had been required, the memorandum of the November 3, 1982, conference clearly established in writing that Respondent was assigned to Pine Villa Elementary. That memorandum was sent to and received by Respondent by certified mail. Even after receiving that memorandum, the Respondent refused to report to Pine Villa Elementary.
The evidence establishes an intentional and unjustified failure on the part of Respondent to report to her assigned school. After numerous attempts by the officials of the School Board to gain her cooperation and to have her report to her assignment, she continually refused to report. Such actions coupled with her absences in September through December of 1981, clearly establish willful neglect of duty.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter an order dismissing the
Respondent and denying her request for back pay.
DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1983.
William DuFresne, Esquire Ellen L. Leesfield, Esquire DuFresne & Bradley
Dr. Leonard Britton Superintendent of Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
