STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SUWANNEE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-606

)

SANDRA SPICER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Live Oak, Florida, on April 20, 1983, before Thomas C. Oldham, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William R. Slaughter, II, Esquire

Suwannee County School Board Post Office Box 906

Live Oak, Florida 32060

For Respondent: Steven A. Been, Esquire

Assistant General Counsel FEA United

208 West Pensacola Street Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Respondent should be dismissed from employment with the School Board of Suwannee County pursuant to Section 231.36(6), F.S., for willful neglect of duty, as set forth in Petition for Dismissal, dated February 2, 1983.

Petitioner presented the testimony of Charles F. Blalock, Jr., Principal of the Suwannee Elementary School East, Live Oak, Florida, and submitted five exhibits in evidence. Respondent testified in her own behalf and presented the testimony of Mary Miller, an instructor and President, United Teachers of Suwannee, and Dr. Gail Lesesne.

Posthearing submissions of the parties in the form of proposed recommended orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in law or fact.

FINDINGS OF FACT

1. Respondent Sandra Spicer is employed by Petitioner School Board of Suwannee County, Florida, as a classroom teacher/speech therapist at Suwannee

   Elementary East School, Live Oak, Florida. She has been so employed on a continuing contract since 1981. (Testimony of Petitioner, Blalock, Petitioner's Exhibits 4-5)

   
   

2. During the past school year, Respondent's schedule provides for lunch during the period 11:30 A.M. to 12:15 P.M., and instruction of four second grade students in speech therapy during the period 12:15 P.M. to 12:45 P.M.

   (Testimony of Respondent, Blalock, Petitioner's Exhibit 3)

   
   

3. On January 6, 1983, while eating lunch in the school lounge, Respondent became ill with a headache and her "heart was just racing," and she feared that she was going to have a heart attack. Respondent has the medical problem of high blood pressure and hypertension and has used the diuretic medication Diazide intermittently since 1981 when it was first prescribed by a physician. The symptoms that Respondent experienced on January 6 were a result of elevated blood pressure. In such instances, it is urgent for the individual to see a physician or take appropriate medicine as soon as possible. (Testimony of Respondent, Lesesne)

   
   

4. At the time Respondent experienced the symptoms related above, she determined that it was necessary to take medication which was at her home. She testified at the hearing that she believed it was unnecessary to obtain permission to leave the school grounds during her lunch period, as long as she signed out at the school office. She had been orally counseled by her Principal, Charles F. Blalock, Jr., in April, 1982, concerning unauthorized absence from her classroom. However, the circumstances that prompted the conference were not disclosed at the hearing. Respondent conceded that she had gone to another school on duty at one time in the past without signing out and that an assistant principal advised her to always obtain permission before she left when she was supposed to be on duty. In October, 1982, her Principal, Charles F. Blalock, Jr., had a conference with her concerning a number of matters, including a reminder of "the incident" that had occurred in the previous school year, and summarized the conference in a letter, dated October 15, 1982, in which he noted that there had been a problem with Respondent's "negligence in signing the Sign In and Out Roster," and "being more accurate in signing in and out and securing permission to leave." (Testimony of Respondent, Blalock, Petitioner's Exhibit 1)

   
   

5. Respondent went to her classroom from the lounge to obtain her purse, signed out at the school office at 12:10 P.M. and drove to her home to obtain her medicine. Since it only ordinarily took about 3 1/2 minutes to drive to her home, she believed that the round-trip would only take about 8 minutes, and that she would be back at school in time to meet her class. She was not "thinking clearly" at the time. She further testified that ordinarily the students were tardy in arriving at the 12:15 P.M. class, and usually were not there until about 12:20 or 12:25 P.M. She did not return to the school premises until 12:35

   P.M. and proceeded directly to her classroom where she found another teacher standing at the door and the students in the room. (Testimony of Respondent)

   
   

6. About 12:20 or 12:25 P.M., Principal Blalock heard excessive noise in the hall and observed children running in and out of Respondent's classroom. He asked the students where their teacher was and they did not know. He supervised them for 10 or 15 minutes and then sought to discover Respondent's whereabouts without success. At about 12:40 P.M., he saw Respondent walk up to her classroom and asked her where she had been. She informed him that she was "coming from home." He asked who gave her permission and she said she didn't know that she needed permission and proceeded to enter the classroom. There is

   a conflict in the testimony as to whether Respondent told Principal Blalock at that time whether she had gone home to obtain medicine for her high blood pressure condition. Respondent testified that she had given him that information at the time she saw him at the classroom. It is found that Respondent did inform him concerning her reason for leaving at that time. After talking to Principal Blalock, Respondent went to the office at 12:40 P.M. and signed in as of that time. (Testimony of Respondent, Blalock, Petitioner's Exhibit 2)

   
   

7. Later that day, Principal Blalock informed Respondent that he was going to call a meeting the next day concerning her absence. On January 7, 1983, in the presence of other school officials and a union representative, the principal informed Respondent that she had been negligent in leaving the school premises. At this time, she again informed him that she had left to obtain her medicine. (Testimony of Blalock, Respondent, Miller)

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner School Board of Suwannee County seeks to dismiss Respondent for willful neglect of duty, pursuant to Section 231.36, Florida Statutes.

   
   

9. Department of Education Rule 6B-4.09, Florida Administrative Code, sets forth the basis for charges regarding dismissal in the following pertinent manner:

   
   

   6B-4.09 Criteria for suspension and dismissal The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

   (4). . .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.

   
   

10. The evidence in this case is insufficient to reach the level of a "constant or continuing intentional refusal to obey a direct order." It is true that Respondent was aware of the school's requirement that she obtain advance permission to be absent from required duties. However, the circumstances surrounding her brief absence of some twenty minutes from her duties, which commenced while she was on her lunch period, show that it was prompted by her sudden onset of illness. Her lack of judgment in not realizing that she could not return by the time her class was scheduled to begin was obviously brought on by her distraught state of mind. There was no competent evidence presented to establish prior specific incidents of unauthorized absence, but only references to Respondent's need to become "more accurate" in signing in and out and "securing permission to leave." This isolated incident of poor judgment does not establish a continuing defiant course of conduct which is necessary to support a charge of willful neglect of duty. (See Smith v. Leon County School Board, 405 So.2d 183 (Fla. 1st DCA 1981))

    
    

11. In view of the foregoing, it is considered that Respondent should be reinstated with payment of back salary from the date of her suspension. However, Respondent's claim that interest should be paid on the amount is not supported by specific authority, and it is considered that Brooks v. School

Board of Brevard County, 419 So.2d 659 (Fla. 5th DCA 1982), is inapplicable to the instant situation.

RECOMMENDATION

That Respondent Sandra Spicer be reinstated as a member of the instructional staff of Suwannee Elementary East School and that her back salary be paid from the date of suspension.

DONE and ENTERED this 24 day of May, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 24 day of May, 1983.

COPIES FURNISHED:

William B. Slaughter, II, Esquire Suwannee County School Board

Post Office Box 906

Live Oak, Florida 32060

Steven A. Been, Esquire Assistant General Counsel

FEA United-208 West Pensacola Street Tallahassee, Florida 32301

School Board of Suwannee County Superintendent Frank R. Stankunas

224 West Parshley Street Live Oak, Florida 32060

Docket for Case No: 83-000606

Orders for Case No: 83-000606