STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM ) BEACH COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4044

)

BILLIE M. BUNCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on January 25, 1988, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

For Respondent: Hyman Borax, Qualified Representative

International Brotherhood of Firemen and Oilers

Post Office Box 449

Boynton Beach, Florida 33435 PRELIMINARY STATEMENT

At issue in this proceeding is whether Respondent is guilty of misconduct in office, willful absence from duty without leave, gross insubordination, and incompetency and, if so, whether he should be dismissed from his employment with Petitioner.

At hearing, Petitioner presented the testimony of Levie McGrady, Robert Collins, David Karlman, Kevin Meehan, Patricia Young, Barbara Jones, Marilyn E. Johnson, Walter H. Burkhart, and Mary B. Smith. Petitioner's exhibits 1a-b, 2, 3, 4a-d, 5a-c, and 6-14 were received into evidence. Respondent testified on his own behalf, and Respondent's exhibits 1-7 were received into evidence.

The transcript of hearing was filed February 15, 1988, and the parties were granted leave until March 1, 1988, within which to file proposed findings of fact. Respondent filed proposed findings of fact in a timely manner, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year.

   
   

2. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years.

   
   

3. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties.

   
   

4. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters.

   The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs.

   
   

5. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair.

   
   

6. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided:

   
   

   There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant.

   
   

   The team recommended:

   1. that the administration immediately take what ever action is necessary

      to insure that routine maintenance and daily housekeeping be done on a constant basis.

   2. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction.

      * * *

      4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner.

      
      

7. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter.

   
   

8. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school.

   
   

9. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied.

   
   

10. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter.

    
    

11. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows.

    
    

12. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/

    
    

13. On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease.

    
    

14. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian.

    
    

15. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to

    attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/

    
    

16. On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible.

    
    

17. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity.

    
    

18. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine.

    
    

19. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987.

    
    

20. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal.

    
    

21. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

23. Pertinent to this case, Administrative Directive 3.27(3) of the School Board of Palm Beach County provides for the suspension and termination of an employee when that employee's conduct falls within one or more of the following categories:

    
    

    (b) Willful absence from duty without leave in violation of Section 231.44, Florida Statutes (1983);

    * * *

    (d) Gross insubordination, which is defined as a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and

    given by and with proper authority;

    * * *

    (f) Incompetence to perform regular work duties. Incompetency is defined as incapacity to perform due to lack of emotional stability or physical ability; or lack of adequate command of the designated area of work.

    Employees are also incompetent when they repeatedly fail to perform duties prescribed by law and by this district...

    
    

24. Section 231.44, Florida Statutes (1983), Provides:

    
    

    ... any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.

    
    

25. The proof demonstrates that respondent violated the Provisions of Administrative Directive 3.27(3) of the School Board of Palm Beach County. Significantly, respondent's failure to perform his prescribed duties has been protracted as well as repeated.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order

sustaining the suspension of respondent and dismissing him from employment.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988.

WILLIAM J. KENDRICK

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 7th day of March, 1988.

ENDNOTES

1/ Respondent contended that he was unable to attend to his cleaning duties because he was constantly doing favors for teachers, i.e.: baby-sitting, electrical work, plumbing, gardening work, and changing flat tires. Respondent offered no corroborative proof of his contention and such contention is not credible. The school staff, as would be appropriate for a small school, was small. It consisted of 13 regular classroom teachers, a speech therapist, and three part-time teachers (music, physical education and art). Respondent's assertion that he spent all his time doing favors for these teachers is inherently improbable and unworthy of belief.

2/ Mr. Robinson's annual evaluations of respondent's performance for the 1983-

84 through the 1986-87 school years are generally satisfactory. They are, however, at odds with the overwhelming proof that respondent's Performance was

substandard. What Mr. Robinson's motivation to write such reports may have been is not known, however they are contrary to the proof and not credited.

3/ This was the first workshop respondent attended over the term of his employment as a foreperson. It is at these training sessions that new equipment, techniques, and supplies are discussed and explained. Respondent's failure to attend such sessions would aptly explain his lack of knowledge concerning equipment usage and cleaning techniques.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4044

Respondent's proposed findings of fact are addressed as follows:

The requested finding at page 3 of respondent's submittal is rejected as not pertinent. It is the misappropriation of the funds that is pertinent. The requested finding at page 5 of respondent's submittal is rejected as not supported by the proof or argument. The requested finding of fact at page 8 of respondent's submittal is rejected as not supported by the proof. The remainder of respondent's submittal is rejected as argument or recitation of witnesses' testimony and not a finding of fact.

COPIES FURNISHED:

Abbey G. Hairston, Esquire 3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

Hyman Borax

International Brotherhood of Firemen and Oilers

Post Office Box 449

Boynton Beach, Florida 33435

Thomas J. Mills Hon. Betty Castor

Superintendent of Schools Commissioner of Education

The School Board of Palm The Capitol

Beach County, Florida Tallahassee, Florida 32399 Post Office Box 24690

West Palm Beach, Florida 33416-4690

Docket for Case No: 87-004044

Orders for Case No: 87-004044