STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF FRANKLIN COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2601

)

STANLEY McINTYRE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on December 1, 1986, in Apalachicola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Van Russell, Esquire

WATKINS & RUSSELL

41 Commerce Street Apalachicola, Florida 32320

For Respondent: Paolo G. Annino, Esquire

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

This matter arose upon the Petitioner's initial decision to terminate the Respondent from his employment with the Franklin County School Board. The School Board suspended the Respondent without pay from his position as a custodian at Apalachicola High School on August 9, 1984. The Respondent requested a hearing contesting the bases for his dismissal before the Board, which hearing was held on October 11, 1984. The cause ultimately went to Final Order by the School Board wherein the School Board adhered to its initial decision to dismiss the Respondent. The Respondent appealed that Final Order to the First District Court of Appeals, which reversed it in McIntyre vs. Tucker,

490 So.2d 1012 (Fla. App. 1st District 1986). The Court in that case determined that McIntyre had been denied a fair hearing on his termination because the School Board attorney acted both as prosecutor representing the interests of his client, the School Board, as well as the Board's legal advisor during its deliberation as the "Hearing Officer" hearing the case. The cause was remanded back to the School Board for further proceedings whereupon the Board transmitted the matter to the Division of Administrative Hearings and the undersigned Hearing Officer. Subsequently thereto the hearing was held as noticed on December 1, 1986, in Apalachicola, Florida.

The Petitioner presented the testimony of Philip Michael Fox, the school principal at times pertinent hereto; Mrs. Vernell Martina and Ms. Diane Abel. The Respondent presented the testimony of the Respondent, Stanley McIntyre, as

well as the testimony of Mr. Benjamin Jefferson and Mr. Steve Jones. The Petitioner also presented Mrs. Martina's testimony and that of Ms. Abel and Mr. Fox in rebuttal. The Petitioner offered and had admitted its Exhibit A, and the Respondent offered nine exhibits, all of which were admitted into evidence.

At the conclusion of the proceeding, the parties elected to file Proposed Findings of Fact and Conclusions of Law, which were timely filed. The time constraint of Rule 28-5.402 was waived. Those Proposed Findings of Fact and Conclusions of Law are ruled upon explicitly or implicitly in this Recommended order to the extent relevant and material and are addressed once again in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Respondent failed to perform the duties of his position and whether he was insubordinate toward his immediate supervisor, Mr. Philip M. Fox, and, if that be the case, whether suspension or dismissal and forfeiture of back pay is warranted.

FINDINGS OF FACT

1. The Respondent, Stanley McIntyre, was employed by the Petitioner as a custodian at Apalachicola High School in July 1984. Mr. Philip Michael Fox was the principal at Apalachicola High School at that time. Petitioner is a governmental agency charged with providing public educational instruction to students in the school district of Franklin County, and enforcing State laws embodied in Chapters 230 and 231, Florida Statutes, and Chapter 6B-4, Florida Administrative Code, which pertain as pertinent hereto, to the hiring, termination or suspension of non-instructional employees such as Mr. McIntyre.

   
   

2. Mr. McIntyre's duties as custodian included opening the front office of the school every morning, cleaning that front office daily, as well as cutting the grass on the school lawn. Mr. McIntyre was to work on a regular schedule for grass cutting such that the grass was supposed to be cut each Monday.

   
   

3. On the morning of July 3, 1984, Mr. Fox approached Mr. McIntyre on his way into the school building in the morning and mentioned to him that the grass in front of the school needed to be cut. Mr. Fox stated that the grass was approaching knee length. Mr. McIntyre explained to him that he was letting the grass grow higher because of the summer heat and that it was harmful to the grass and its roots if the grass was cut too short during hot, dry weather. Mr. Fox indicated to Mr. McIntyre that he understood that reason, but still required the grass to be cut lower. In fact, the Superintendent and School Board members had complained to Mr. Fox about the unkempt appearance of the lawn.

   
   

4. Shortly before July 3, 1984, an incident had occurred at the high school office involving the safe being left open and some money being stolen. The Respondent and two other custodians had evidently been questioned about the incident, taken to the local police station and finger printed. Mr. McIntyre was sensitive and upset about the incident, evidently believing that others working at the school believed him to be one of the culprits in the incident, especially the secretaries in the front office. Shortly before noon on July 3, 1984, Mr. Fox was departing the school to attend a Rotary Club meeting. The Respondent approached him to discuss this incident concerning which he believed he was under suspicion. Mr. McIntyre related to Mr. Fox that he was tired of being accused of things that went wrong in the front office and did not desire to work there any more. Mr. Fox assured Mr. McIntyre that he was not accused of any wrong-doing and that Mr. Fox had been assured by the school Superintendent that the matter had already been resolved. Mr. Fox assured Mr. McIntyre of this

   and told him that he was not accused of anything and not to worry about it, but that they would discuss it when he returned from lunch.

   
   

5. After Mr. Fox returned to the school that day, Mrs. Martina, an employee in the office, informed him that Mr. McIntyre had put his keys on the front desk and informed her that he was leaving for the rest of the week. The keys Mr. McIntyre left with Mrs. Martina included those: to the front office door. In any event, Mr. McIntyre remained away from work for the remainder of that week, which included the fourth of July holiday. No arrangements had been made with Mr. Fox for Mr. McIntyre to be away from work and Franklin County School Board policies require that non-instructional employees have approval of their immediate supervisor before taking annual leave. There is no question that Mr. McIntyre had sufficient annual leave accrued so that he was not absent without leave for the remainder of that week. Although Mr. McIntyre obtained no approval from Mr. Fox, his immediate supervisor, he did inform Mrs. Martina that he would be on annual leave and such a practice had become customary at the school. In any event, the question of unauthorized absences is not properly at issue in this case since no such charge was made against the Respondent prior to hearing so that he could prepare to defend against it.

   
   

6. On the Monday following the above incident, that is Monday, July 9, 1984, Mr. Fox instructed Mrs. Martina to inform McIntyre to come to his office to see him when he returned to work. Upon Mr. McIntyre's arrival, Mr. Fox questioned him concerning why he left his keys in the office the previous week. Mr. McIntyre again told Mr. Fox that he was tired of being accused of stealing from the front office and did not intend to work there any more. Mr. Fox informed him that it was not his proper place to tell the principal what he would and would not do, (meaning that he was subject to the principal's supervision and not independent of him), and reminded Mr. McIntyre that he had previously changed Mr. McIntyre's work schedule at his own request so that he would be able to work in the front office because of friction he was having with another custodial employee who had been associated with McIntyre because of their identical work schedules. After reminding Mr. McIntyre of this, Mr. Fox requested that he take back the keys to the front office and proceed to perform his job as previously instructed, including opening up the front office and cleaning it. Mr. McIntyre, however, stated several times that he was not going to work in the front office any more. Mr. Fox told him that he needed to simply do his job, whereupon Mr. McIntyre replied that Mr. Fox needed to make the secretaries do their jobs (in other words, to refrain from accusing McIntyre of any wrong-doing). Mr. Fox assured Mr. McIntyre that he would take care of any problem he was having with the secretaries and not to worry about it, but in the meantime to be sure to perform his own job properly. Fox told Mr. McIntyre more than once that his only concern should be proper performance of his own job.

   Mr. McIntyre responded that he was doing his job and so Mr. Fox responded that he needed to do it correctly because the grass in the front of the school needed to be cut.

   
   

7. Mr. McIntyre, at this juncture, reiterated his reason for allowing the grass to grow long and Mr. Fox remonstrated that it was not short enough and he wanted it cut shorter. The grass was quite long, approaching knee length at that time. Mr. McIntyre then became excited and raised his voice at Mr. Fox, stating in effect that he was doing the best he could and that if Mr. Fox did not like the way he was doing his job, then Mr. Fox could fire him. Mr. Fox then asked him to simply go cut the grass and perform his other duties as instructed and that that was all he needed to worry about. Mr. Fox and Mr. McIntyre repeated themselves several times with Fox directing McIntyre to cut the grass and perform his job in the front office as instructed and McIntyre

   stating that he was doing his job and that if Fox did not like it he could fire him if he wished. Finally Mr. McIntyre stated his belief that Mr. Fox was "picking on him" because of an incident in which several black players boycotted the football team and intimating that Mr. Fox had blamed the Respondent for this dissension on the team. At this point Mr. Fox told Mr. McIntyre that the conversation was ended and that he should go to work. Mr. McIntyre persisted in responding to Mr. Fox in the above fashion and in effect challenging Fox to fire him if he was dissatisfied with his performance. After several such repetitions, Mr. Fox obliged him, requested his keys and told him he was fired.

   
   

8. The doors to the office were closed during this conversation but Mrs. Martina overheard Mr. McIntyre shouting at Mr. Fox concerning his belief that he was performing his job adequately and challenging Mr. Fox to fire him. Mrs. Martina was not able to overhear everything stated by Mr. Fox, however. In any event, it has been established that on both July 3 and July 9, 1984, Mr. McIntyre informed Mr. Fox that he would not work any more in the front office.

   
   

9. Mr. McIntyre, in his testimony, attributed his firing to an incident in which the black players quit the football team. Mr. McIntyre had worked as an assistant football coach at the high school at that time, some eight months before his firing. According to Mr. McIntyre, the incidents occurred in September and November 1983. Mr. Fox indicated that the incidents stemmed from a conflict between McIntyre and the head football coach, who were blaming each other for the problems with the recalcitrant black players. Mr. Fox indicated that he received the information from third parties, did not truly know who was responsible and had never blamed anyone for the dissension on the team. Mr. Fox felt that he had always had a good relationship with Mr. McIntyre and after the incident had spoken with him about it. Mr. Fox related that it was in the best interest of the players that they continue to play football, and Mr. McIntyre apparently agreed. The situation apparently resolved itself with the departure of the head football coach from the Franklin County School System. In any event, both McIntyre and Fox apparently discussed the matter at the time with no apparent conflict or animosity. These incidents occurred in September and November 1983, approximately eight months before McIntyre was terminated and thus Mr. McIntyre's contention that Mr. Fox recommended his firing because of the "football incidents" is not convincing.

   
   

10. The Respondent's three witnesses, including Respondent, testified that on July 3, he mowed the grass as requested by Mr. Fox. The Petitioner's witnesses, including Mr. Fox, Mrs. Martina, and Ms. Diane Abel, testified that the grass was not mowed when they observed it on July 3. Mrs. Martina left the building at about 4:30 and Ms. Abel left about 4:00 in the afternoon, after the Respondent had given his keys to Mrs. Martina and taken annual leave. They testified that the grass was not mowed at that time and was quite long. Mrs. Martina testified that the grass at the front of the school had not been mowed at that time. It is possible that some of the school grounds were mowed that day. Be that as it may, whether the grass was mowed or not on July 3 is not material to resolution of the material issues in this case. The fact remains that on both July 3 and July 9, Mr. Fox told the Respondent that he simply needed to do his job and not worry about the alleged accusations, after explaining to Mr. McIntyre that he had not been accused of anything and that the matter had already been resolved. Mr. McIntyre, on both occasions, expressed his refusal to work in the front office, including unlocking the door of the office in the mornings, after Mr. Fox instructed him to continue performing those and his other duties, including cutting the grass.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Section 230.23(5)(f), Florida Statutes, provides that the School Board has the power to suspend or dismiss members of the instructional staff and other school employees. Section 230.33, Florida Statutes, concerning duties and responsibilities of the school district Superintendent provides at Section 230.33(7)(e) that the Superintendent has authority, when authorized by the Board, to recommend employees for dismissal. Section 231.36(1)(a), Florida Statutes, provides that continuing contracts for members of the instructional staff shall contain provisions for dismissal during the term of the contract only for "just cause." "Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty or conviction of a crime involving moral turpitude." Subsection (6)(b) of that Section provides that any member of the district administration or supervisory staff, including any principal, but excluding employees specified in Subsection (4)(continuing contract employees) may be suspended or dismissed for those reasons which were defined in Subsection (1)(a) as, (nonexclusively), constituting "just cause." Rule 6B- 4.09, Florida Administrative Code, then defines the criteria for suspension and dismissal enumerated above for instructional personnel. In that rule, at paragraph (4), the terms "gross insubordination" or "willful neglect of duty" are defined as a constant or continuing, intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

13. The opinions in Smith vs. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981) and Rutan vs. Pasco Countv School Board, 435 So.2d 399 (Fla. 2nd DCA 1983), are instructive regarding an appropriate standard for determining gross insubordination or willful neglect of duty. In the Smith case, the employee, having received a poor performance evaluation from her supervisor, crumbled her evaluation form in her hand and threw it on the supervisor's desk stating, "This is what I think of this and you, too." Smith supra. 405 So.2d at 184. The Court in that case found that that conduct did not amount to gross insubordination as defined in the above rule. Likewise, in the Rutan case, the Court did not find the employee involved guilty of gross insubordination. Although the employee involved in the Smith case was a non-instructional employee, like the Respondent in the case at bar, the Court found it appropriate to use the above Rule which pertains to instructional employees as a guide in its decision since the appellant employee therein had been charged and found guilty by the Board of misconduct in office and gross insubordination or willful neglect of duty. Applying the standard for instructional employees to non- instructional employees, like Mr. McIntyre, the Courts in both these cases concluded that those employees had not violated the above rule because there was no evidence of a refusal to obey an order and because the conduct was not constant or continuous. The Court in Rutan stated, "Like the situation in Smith, the record does not demonstrate that Rutan ever refused to obey any orders from any one." The holding in both these cases indicates that the pivotal consideration is whether the employees involved exhibited a constant or continuous refusal to obey a direct order from one authorized to give orders of a reasonable nature.

    
    

14. Clear and convincing evidence adduced by the Petitioner, as reflected in the above Findings of Fact, establishes that Mr. McIntyre's situation is different from that in the Smith and Rutan cases. It has been established that,

    in the July 3 conversation between Mr. McIntyre and the principal, Mr. Fox, that Mr. McIntyre indicated his refusal to perform his duties in opening up the front office of the school in the morning and maintaining custody of the keys to that office and cleaning up that office. This was a regular part of his duties and work schedule which he clearly had been previously instructed to perform. On this July 3 occasion Mr. Fox again instructed him to perform those duties. Mr. McIntyre, during Mr. Fox's absence that afternoon, and, by his own testimony, still upset over his belief that he was suspected of being involved in the recent theft from the school office (which Mr. Fox had assured him he was not) left the keys to the front office with the secretary and departed the work place. When Mr. McIntyre returned to the school on July 9 and had his conference with Mr. Fox, he again vehemently and repeatedly stated his refusal to work in the front office and open the front office in the mornings with the keys in his custody, as well as his unwillingness to maintain the grounds as directed by mowing the grass according to Mr. Fox's instructions. He challenged Mr. Fox to dismiss him. The record thus establishes that, on these two occasions, Mr. McIntyre repeatedly and continuously refused to obey a direct order by Mr. Fox.

    
    

15. It is undisputed that Mr. Fox was acting in his proper authority in giving such orders concerning maintenance of the school grounds and the other job duties of the Respondent. Section 231.C85, Florida Statutes, authorizes school principals to exercise such authority over personnel employed at the principal's school if such authority is delegated by the Superintendent. There is no dispute that Mr. Fox had such delegated authority in this case.

    
    

16. It has likewise been shown that these orders were reasonable in nature. It is clearly within the principal's authority to give orders or directions such as these to ensure that the school grounds and offices are properly maintained both as to cleanliness and security. This is especially so in the instant situation since Mr. McIntyre had been assigned to his duties involving maintenance and care of the school office at his own request because of friction he had had with another custodial employee at his former work station. The directions to Mr. McIntyre involved herein were clearly reasonable in nature and made by one with authority to promulgate them.

    
    

17. Thus, it has been shown that the situation in the case at bar is unlike that involved in the Smith and Rut an decisions and indeed is one of a repeated and continuous refusal to obey a direct and reasonable order by one with authority to give that order, which is the situation the Courts issuing those decisions opined was one in which charges of willful neglect of duty or gross insubordination would lie.

    
    

18. In summary, the circumstances of this case as established by the evidence of record and delineated in the above Findings of Fact show that the elements required to be proven to establish the offense charged against Mr. McIntyre have been established. Mr. McIntyre repeatedly refused direct orders by Mr. Fox, who as principal of the school had proper authority to render those orders. The assignments given Mr. McIntyre by Mr. Fox that he perform his regularly scheduled duties involving opening the front office and mowing the grass were direct and reasonable in nature, especially since they required no different or additional duties than those he had traditionally performed under his regular work assignments and schedule. Additionally Mr. Fox, as the supervisor of Mr. McIntyre and the other school employees, was charged with the responsibility of seeing that the school plant and grounds were properly maintained and that the school functioned in an orderly and efficient manner. Consequently, Mr. McIntyre's heated and vehement repetitive refusals to perform

    his regularly assigned duties at Mr. Fox's direction left Mr. Fox, as a supervisor, no real alternative but to impose severe disciplinary measures.

    
    

19. The above-cited authority reveals that the Petitioner, at Mr. Fox's recommendation, had two courses of disciplinary action available to it, that of dismissal and that of suspension. The evidence of record reveals that Mr. McIntyre's employment record was satisfactory prior to the incidents discussed herein, which occurred approximately one week apart, with no evidence of record of any past altercation with his employer. The Hearing Officer is constrained to point out that permanent dismissal seems unwarranted under the circumstances of this case. Given the fact that Mr. McIntyre has been unemployed by the Petitioner for a lengthy period of time during the pendency of this proceeding and the related appellate proceeding add given that he has already suffered the loss of pay which he would have earned in the employment position had his suspension and termination not occurred, it seems that the appropriate penalty should be one of suspension without pay rather than outright, permanent dismissal. Since the Respondent has already been bereft of employment and compensation from the School Board for a substantial period of time, it would seem appropriate that he be given the opportunity of reinstatement should a similar position be available in the Petitioner's employ.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the Respondent, Stanley McIntyre, be suspended without pay from his employment with the School Board of Franklin County, with such suspension without pay to terminate upon the Petitioner's entry of a Final Order herein, if on the date of that Final Order a similar and suitable position is available to which he may be reinstated.

DONE and ENTERED this 13th day of March 1987, in Tallahassee, Florida.

P. MICHAEL RUFF 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 13th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2601

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted, but not dispositive of material issues.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted.

17. Accepted.

Respondent's Proposed Findings of Fact:

1. a) Accepted.

   1. Accepted.

   2. Accepted.

   3. Accepted.

   4. Accepted.

   5. Accepted.

2. Accepted.

3. a) Rejected inasmuch as the various charging documents

   1. also notified Respondent that his prosecution involved neglect of his duties.

4. Rejected inasmuch as the various charging documents also notified Respondent that his prosecution involved neglect of his duties.

5. Accepted.

6. Accepted.

7. Accepted as to the issue of unauthorized absence only.

8. Accepted as to the issue of unauthorized absence only.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted.

15. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter.

16. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter.

17. Rejected as subordinate to the findings made by the Hearing Officer on this subject matter.

18. Rejected as a recitation of testimony and not Findings of Fact.

19. Rejected as a recitation of testimony and not Findings of Fact.

20. Accepted, but not dispositive.

21. Rejected as not comporting with the weight of evidence adduced or the lack thereof.

22. Rejected as a discussion of the evidence rather than a Finding of Fact.

23. Rejected as a discussion of the evidence rather than a Finding of Fact.

24. Accepted, but not dispositive of the material issues presented.

25. Accepted, but not dispositive of the material issues presented.

26. Rejected as not being established by the greater weight of the evidence.

27. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

28. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

29. Rejected as discussion of testimony and not a Finding of Fact.

30. Accepted.

31. Accepted.

32. Rejected.

33. Accepted.

34. Accepted, but not dispositive of the material issues presented.

35. Rejected as not in accordance with the clear and convincing evidence adduced.

36. Rejected.

37. Accepted.

38. Rejected as not in accordance with the clear and convincing evidence adduced.

39. Accepted.

40. Accepted, but not in itself dispositive of the material issues presented.

41. Rejected.

42. Accepted, but not in itself dispositive of the material issues presented.

43. Rejected as not consonant with the clear and convincing evidence adduced.

44. Rejected as to its overall import.

45. Rejected as not constituting a Finding of Fact.

46. Rejected as not constituting a Finding of Fact.

47. Rejected as not constituting a Finding of Fact.

48. Rejected as not consonant with the clear and convincing evidence adduced.

COPIES FURNISHED:

Van Russell, Esquire WATKINS RUSSELL

41 Commerce Street Apalachicola, Florida 32320

Paolo G. Annino, Esquire Legal Services of North Florida, Inc.

822 North Monroe Street Tallahassee, Florida 32303

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney McKenzie Department of Education Knott Building

Tallahassee, Florida 32301

Gloria Tucker Superintendent

Franklin County School Board

155 Avenue E

Apalachicola, Florida 32320

Docket for Case No: 86-002601

Orders for Case No: 86-002601