STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF GULF COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4471

)

AUDRY MONETTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on February 23, 1987, in Port St. Joe, Florida. The issue for determination is whether Respondent is guilty of the charges alleged in Petitioner's Specific Notice of Charges and thereby subject to the penalties imposed pursuant to Section 231.36(4)(c), Florida Statutes.

APPEARANCES

For Petitioner: Cecil G. Costin, Jr., Esquire

Post Office Box 98

Port St. Joe, Florida 32456

For Respondent: Philip J. Padovano

Post Office Box 873 Tallahassee, Florida 32302

BACKGROUND

By letter dated and hand delivered on September 29, 1986, Walter Wilder (Wilder), Superintendent, Gulf County School District, suspended Respondent, Audrey Monette, from her position with the Gulf County School District. Then by letter dated October 7, 1986, with a Notice of Suspension attached, Wilder notified Respondent that her suspension would be with pay through October 27, 1986, the day of a scheduled meeting of the Gulf County School Board (Board) wherein the board was to hear Wilder's request for Respondent's permanent termination. The Notice of Suspension set out the facts upon which Wilder based his charge of gross insubordination. By letter dated October 14, 1986, Wilder amended the Notice of Suspension by adding other facts upon which Wilder based his charge of willful neglect of duties. On October 27, 1956, the Board suspended Respondent without pay, effective at noon, October 27, 1986. This matter was referred to Division of Administrative Hearings on November 12, 1986, and this hearing ensued.

In support of its charges, the Petitioner presented the testimony of Helen Ramsey, Edwin G. Williams, Ellie Padgett, Juanita Powell and Walter Wilder.

Petitioner's exhibits numbers 1-3 were received into evidence. Respondent

testified on her own behalf and presented the testimony of Edwin G. Williams and Christine White. Respondent's exhibits 1 and 2 were received into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent was employed as a classroom teacher by Petitioner under a continuing contract.

   
   

2. Respondent has been a classroom teacher for nineteen (19) years, and has been employed by Petitioner for the last eighteen (18) years. Petitioner taught primarily at elementary school level but, at various times, she has also taught at the high school level.

   
   

3. Respondent was awarded a continuing contract of employment by Petitioner in 1973.

   
   

4. Respondent has never been, other than this proceeding, the subject of any formal disciplinary proceeding during the time she has been employed by the Petitioner.

   
   

5. On September 25, 1957, Respondent brought three (3) students to Helen Ramsey, Assistant Principal, Port St. Joe High School, for discipline due to their alleged misbehavior in the Respondent's classroom.

   
   

6. The more credible evidence shows that Respondent insisted that Ramsey discipline the students in her presence. The reason for Respondent's insistence was that students previously sent by Respondent for discipline had bragged to other students that no punishment had been administered and this created further disciplinary problems in her classroom.

   
   

7. Ramsey requested that Respondent leave and let her "handle the situation." Due to Respondent's insistence, Ramsey discussed the matter with Respondent alone in Ramsey's office. After this discussion, Ramsey agreed to question the students. Two (2) students admitted misbehaving in the classroom and were paddled. The third student denied misbehaving in the classroom and Ramsey refused to proceed any further until she had questioned the student without Respondent being present. After further discussion, and with Ramsey refusing to proceed any further, Respondent left. There is insufficient evidence to show that Ramsey ever gave Respondent a direct order to leave her office or the reception area but only requested that Respondent leave and allow Ramsey "to handle the situation" which Respondent did, after a lengthy and heated discussion with Ramsey.

   
   

8. Ramsey had not experienced a problem, such as this, with Respondent before and, although Ramsey saw no apparent reason for Respondent's "unusual" attitude, Ramsey did not question Respondent at any time concerning her attitude.

   
   

9. The entire incident between Ramsey and Respondent lasted about thirty

   (30) minutes, including the five (5) to ten (10) minutes Respondent spent with

   Ramsey without the students in the beginning and the ten (10) to fifteen (15) minutes Respondent was in Ramsey's office while Ramsey discussed the matter with students and paddled two (2) of them.

   
   

10. On September 25, 1986, Edwin Williams, (Williams) Principal, Port St. Joe High School, was away from school, and therefore Ramsey reported the incident to Superintendent Walter Wilder (Wilder). When Williams returned on September 26, 1987, Ramsey reported the incident to him.

    
    

11. On September 26, 1987, when Williams, became aware of the incident, he sent an aide, Ellie Padgett (Padgett) to Respondent's room to ask Respondent to report to Williams' office and for Padgett to stay with Respondent's class.

    Upon receiving the message from Padgett, despondent advised Padgett that she would go to Williams' office the next period which was her free period.

    
    

12. While Padgett was in Respondent's room, Juanita Powell (Powell), Williams' Secretary, paged Respondent on the intercom and there was credible evidence that Respondent informed Powell that she would come to Williams' office shortly.

    
    

13. After Padgett returned to Williams' office, Powell went to Respondent's room to inform Respondent that Williams wanted to see her. Respondent told Powell that she had planned on giving treats to her students at the end of the period and would come when she finished.

    
    

14. After Powell returned to Williams' office, Williams went to Respondent's room and told her he wanted to see her in his office. There was credible evidence that Williams was angry with Respondent and expressed his anger when he demanded that she come to his office right away. Respondent went to Williams' office in about five (5) minutes after he demanded that she come. This gave Williams time to return to his office and "cool-off."

    
    

15. No one advised Respondent what Williams wanted to speak to her about or that the matter needed immediate attention.

    
    

16. Upon arrival at William's office, Williams confronted Respondent with the report of the incident regarding the students given to him by Ramsey. A heated discussion ensued and Williams told Respondent to leave his office and the school, and then Williams proceeded to Wilder's office. After Williams left, Respondent went to her classroom to gather up her personal things. While gathering up her personal things, Respondent was advised by Mr. Osborne, a school employee, to report back to Williams' office.

    
    

17. Respondent reported to William's office and shortly thereafter Williams and Wilder arrived. Wilder advised Respondent that they were dealing with "what was potentially a serious disciplinary problem." At this juncture, Wilder directed Respondent to respond to a series of questions concerning the Ramsey incident which Respondent declined to answer, but addressed her remarks to Williams concerning what Respondent felt was Williams' unfair treatment of her during this incident. Respondent continued to discuss the matter with Williams even after he again directed her to leave the school premises. However, Respondent did leave the school in about ten (10) to fifteen (15) minutes.

    
    

18. Respondent was not offered an opportunity to have another teacher present to witness the conversation during this meeting with Williams and Wilder.

19. Respondent did comply, although belatedly, with: (a) the request from Ramsey to leave her office; (b) Williams' request to leave his office and the school premises and, (c) Williams' request to report to his office.

    
    

20. There was credible evidence that Respondent's failure to notify the school secretary of her absence from duty on September 12, 1983, was due to Respondent's belief that her husband, Clarence Monette, had advised the secretary of her absence.

    
    

21. There was credible evidence to show that Respondent was dividing her time between Highland Elementary School and Port St. Joe High School on May 22, 1986, and that Respondent's reason for not reporting to Highlands on May 22, 1986, was due to her staying at the high school to attend an art festival with the children.

    
    

22. There was credible evidence that on September 23, 1986, Respondent was absent but made arrangements to have her lesson plan delivered to the school secretary and for a substitute teacher; however, Respondent failed to notify school authorities that she had engaged a substitute teacher which resulted in the school engaging a substitute teacher also.

    
    

23. Respondent has had an annual formal evaluation for each of the eighteen (18) years she has taught in the Gulf County School district and, during that entire time, no school administrator has ever indicated that she was guilty of insubordination or that she had willfully neglected her duties.

    
    

24. There was insufficient evidence to show that Respondent intended to violate school policies or to disobey an order of her superiors.

    
    

25. There was insufficient evidence to show that Respondent's material acts and omissions were willful.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The alleged misconduct of which Respondent is accused purportedly violates Section 231.36(4)(c), Florida Statutes, and in pertinent part is quoted below:

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, 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 gross insubordination, willful neglect of duty . . . 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. . . .

28. Gross insubordination and willful neglect are defined in Rule 6B- 4.009(4), Florida Administrative Code, which states as follows:

    
    

    Gross insubordination or 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.

    
    

29. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So.32d 778 (2 DCA Fla. 1981). Petitioner has failed to meet its burden of proof that Respondent was guilty of gross insubordination or willful neglect of duties in violation of Section 231.36(4)(c), Florida Statutes

    
    

30. First, Respondent's failure to respond to questions by Wilder concerning the Ramsey incident cannot sustain the charge of gross insubordination or willful neglect of duties. While Wilder, as Superintendent of the Gulf County Schools, is empowered to direct Respondent to perform duties that are within the scope of Respondent's employment and inquire into her performance of such duties, Respondent's failure to respond to questions dealing with possible misconduct cannot be termed gross insubordination.

    
    

31. For Respondent's acts or omissions to be construed as gross insubordination or willful neglect of duties, thereby subjecting Respondent to the penalties imposed under Section 230.36(4)(c), Florida Statutes, there must be a showing that Respondent intentionally refused to obey a direct order that was reasonable in nature and given by proper authority, and that such refusal was constant or continuous. While there may be a question as to whether Ramsey gave Respondent a direct order to leave, there is sufficient evidence to show that on that occasion and the occasions with Williams, Respondent responded to the orders given in reasonable manner considering the circumstances under which the orders were given. There is insufficient evidence to prove that Respondent's acts or omissions were intentional or that Respondent purposely violated a direct order given by and with proper authority. However, assuming arguendo that Respondent's acts or omissions could be construed as intentionally disobeying a direct order, those acts or omissions would not support a finding that Respondent's conduct was constant or continuous. Rutan v. Pasco County School Board, 435 So.2d 399 (2 DCA Fla. 1953).

RECOMMENDATION

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

RECOMMENDED that the Petitioner, School Board of Gulf County, enter a Final Order dismissing all charges filed against the Respondent, Audrey Monette and that Respondent be restored to her position as a continuing contract employee of the Gulf County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges.

Respectfully submitted and entered this 2nd day of July 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 2nd day of July 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4471

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in substance in Findings of Fact 5, 6, 7, 8 and 9.

3. First and second sentence adopted in substance in Findings of Fact 12 and 13 except for that part of second sentence regarding Respondent ignoring Williams' orders which is rejected as not supported by substantial competent evidence in the record. The balance of paragraph 3 adopted in substance in Findings of Fact 14 and 16 except for that part of the fifth sentence concerning Respondent calling Williams an "Uncle Tom" and that part of sixth sentence concerning Respondent charging Williams with believing Ramsey in preference to her which I reject as immaterial and irrelevant.

4. Reject that portion of paragraph 4 concerning Respondent's refusal to leave Williams' office as not supported by substantial competent evidence in the record. The balance of paragraph 4 is adopted in substance in Finding of Fact 17.

5-6. Covered in background material.

7-8. Rejected as immaterial and irrelevant.

Rulings on Proposed Findings of Fact Submitted by the Respondent 1-2. Adopted in Finding of Fact 2.

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 4.

3. Adopted in Findings of Fact 5, 6 and 7.

4. Adopted in Finding of Fact 6.

5. Not stated as a finding of fact but as recitation of testimony. However, it is covered in Finding of Fact 6.

6. Adopted in substance in Finding of Fact 7.

7. Not stated as a finding of fact but as a recitation of testimony. However, it is covered in Finding of Fact 6.

10-11. Adopted in Finding of Fact 8.

1. Adopted in Finding of Fact 9.

2. Adopted in Finding of Fact 10.

14-15. Adopted in Finding of Fact 11. 16-17. Adopted in Finding of Fact 12. 18-19. Adopted in Finding of Fact 13. 20-22. Adopted in Finding of Fact 14.

1. Adopted in Findings of Fact 14 and 15.

2. Adopted in Findings of Fact 14 and 19.

3. Adopted in Finding of Fact 15.

4. Adopted in Finding of Fact 2. 27. Adopted in Findings of Fact 16 and

17.

1. Adopted in Finding of Fact 18.

2. Not stated as a finding of fact but a recitation of testimony but

   covered in Finding of Fact 17.

3. Adopted in substance in Finding of Fact 17.

31-32. Adopted in substance in Finding of Fact 20.

1. Adopted in substance in Finding of Fact 21.

2. Adopted in substance in Finding of Fact 22.

3. Adopted in substance in Finding of Fact 23.

4. Adopted in substance in Finding of Fact 24.

5. Adopted in substance in Finding of Fact 25.

COPIES FURNISHED:

Cecil G. Costin, Jr., Esquire Post Office Box 98

Port St. Joe, Florida 32456

Philip J. Padovano Post Office Box 873

Tallahassee, Florida 32302

B. Walter Wilder, Superintendent Gulf County School Board

Port St. Joe, Florida 32456

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 86-004471

Orders for Case No: 86-004471