STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHLANDS COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2866

)

MARIAN D. DUNHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Sebring, Florida, on October 20 and 21, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Gavin W. O'Brien

Gavin W. O'Brien, P.A.

1806 Manatee Avenue West Bradenton, Florida 34205

For Respondent: Mark S. Herdman

Kelly, McKee

Post Office Box 75638 Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of absence without leave from her teaching duties, willful neglect of duties, and misconduct in office, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated March 26, 1993, Petitioner advised Respondent that it was terminating her employment because of absence without leave, willful neglect of duty, and misconduct in office.

By letter dated May 19, 1993, Respondent requested a formal hearing.

The above-styled case was consolidated for hearing with Highlands County School Board v. Harold D. Graves, DOAH Case No. 93-2867, in which Petitioner alleges that a teacher at the same school site is guilty of absence without leave and misconduct in office. A separate recommended order will be issued in DOAH Case No. 93-2867.

At the hearing, Petitioner called 11 witnesses and offered into evidence 24 exhibits. Respondent called two witnesses and offered no exhibits into evidence. All exhibits were admitted.

The transcript was filed November 29, 1993. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent is a teacher certified by the State of Florida to teach French and German. Her teaching certificate is endorsed with Gifted education. Gifted education is a special category within Exceptional Student Education (ESE) in which students with superior aptitudes receive academic enrichment.

   
   

2. Respondent has taught for several years in the Highlands County School District. For the 1992-93 school year, she was on continuing contract. She was paid $33,630 annually at a rate of $24.50 hourly during the 1992-93 school year.

   
   

3. On or about April 8, 1993, Petitioner terminated Respondent after determining that she had been absent without leave from her teaching duties and had willfully neglected her duty to teach a physical education class beginning at 3:45 pm daily.

   
   

4. Prior to the 1992-93 school year, Respondent had been an itinerant teacher for several years. For the most part, she had traveled among various elementary and middle schools teaching in the gifted program.

   
   

5. Now a gifted education teacher at an elementary school, Diane Lethbridge was, at all material times, the Program Staffing Specialist for Exceptional Student Development. At the end of the 1991-92 school year, Ms. Lethbridge informed Respondent that her current position as a gifted teacher would not be available for the following school year. Ms. Lethbridge offered Respondent two alternatives. She could exercise her seniority rights to displace another teacher at three elementary and middle schools or she could teach older students at Trout Lake.

   
   

6. Trout Lake is a residential ESE facility operated by Tri-County Addictions, Inc. Consisting of 43 acres, the facility includes residential and school buildings, which are not within sight of each other. It takes about 10 minutes to walk between the residences and school building. Trout Lake serves an average of 18-24 students ranging in age from 13 to 18 years. The students have all been classified as Severely Emotionally Disturbed (SED) and often suffer from drug addiction. In general, the students present difficult management problems.

   
   

7. Petitioner is contractually responsible for educating the Trout Lake students. Toward that end, Petitioner has routinely assigned one or two teachers to teach the students at the school building located on the Trout Lake campus. Immediate responsibility for the teachers rests with the principal at Avon Park High School, which is about five miles from Trout Lake. During the 1991-93 school years, the principal was Barbara Dean. Given the nature of the students, however, considerable responsibility for the success of Petitioner's involvement with the Trout Lake program rests with Petitioner's District ESE staff.

8. After Respondent agreed to take the Trout Lake position, and shortly before the end of the 1991-92 school year, Ms. Dean contacted Respondent and told her that she would need to teach summer school at Trout Lake. Respondent reported to the facility and team-taught a vocational course with another teacher, Harold Graves, who is the respondent in DOAH Case No. 93-2867. During the same summer, Respondent commenced coursework to become certified in SED.

   
   

9. Respondent's schedule at the beginning of the 1992-93 school year required her services from 8:15 am to 3:45 pm. Her duties on Monday, Tuesday, Thursday, and Friday were different from those on Wednesday.

   
   

10. Each weekday morning, the students began the day around 7:15 or 7:30 am with about an hour of peer counselling. Respondent was not involved in this activity, which took place at the residence.

    
    

11. On weekdays except Wednesdays, the students were divided into two groups. One group went to school in the morning while the other group remained at the residence for counselling from the counsellors employed by Trout Lake. In the afternoon, the group that had gone to school went to the residence for counselling, and the group that had remained at the residence went to school.

    
    

12. The students who went to school in the morning typically left the residence for school at about 8:30 am. At about 11:30, after four periods of about 45 minutes each of social studies, science and health, mathematics, and English, the morning students rejoined the others at the residence for lunch. At around 12:30 pm, the afternoon students arrived at the school building and attended the same four courses until about 3:30 pm.

    
    

13. The Wednesday schedule was different. The Trout Lake counsellors needed one weekday during which they could counsel all of the students together. Thus, on Wednesdays, all of the students went to school in the morning and were taught in classes twice as large as normal. From 11:00 am to about 11:30 am, the counsellors met with various groups. Then, lunch took place at the residence from about 11:30 am to about 12:30 pm.

    
    

14. Beginning at about 12:30 pm, the counsellors conducted a staff meeting at which they discussed the students and any problems that they were facing. Respondent typically attended the lunch at the residence each weekday, but she did not attend the Wednesday afternoon staff meeting. Instead, she had the remainder of the afternoon on Wednesdays to plan. This was the only time that she had available all week for planning.

    
    

15. Sometime in late September, 1992, the Bartow Adolescent Facility closed. As a result, Trout Lake received another 10 students for whom it had not planned.

    
    

16. During the first week of October, 1992, Petitioner conducted its district-wide Full Time Equivalency (FTE) count of students. The FTE count has two effects. If a district is not yet at its funding cap in a certain program, a greater FTE count than projected the preceding year may result in the receipt of increased revenues from the State Department of Education. Petitioner was at or near the cap at the time. The second effect is that an increased FTE count results in increased funding for the following year. The FTE count of non- Gifted ESE students, such as the SED students at Trout Lake, is particularly important because the allocated revenues are higher for non-Gifted ESE students than for non-ESE students.

17. Sometime during the first week of October, Ms. Dean, Ms. Lethbridge, and Ms. Furnville, who was the director of Trout Lake, met and discussed the FTE count. They discovered that at least some of the students at Trout Lake were receiving only 1250 minutes weekly of SED classes, rather than the 1500 minutes that they thought that the students had been receiving.

    
    

18. Ms. Dean approached Respondent about teaching a class from 3:45 pm to 4:45 pm, for which Respondent would be paid additional money. At the time, Ms. Dean thought that the additional class would be fine arts and so informed Respondent, who agreed to teach the class. Ms. Dean later discovered a problem preventing the offering of a fine arts class and informed Respondent that she would be teaching physical education during the same time period.

    
    

19. Respondent is more artistically, than athletically, inclined and skilled. Respondent freely admitted her concerns about teaching physical education to Ms. Dean when Ms. Dean informed Respondent of the change in subject matter.

    
    

20. Ms. Dean assured Respondent that she would not have to teach anything. Ms. Dean said that Respondent would merely supervise the activities of Trout Lake counsellors as they continued to conduct what had been a recreation period during the same time period. Ms. Dean told Respondent that she would not be required to have lesson plans for the class, but would only have to watch while the students played games. Respondent agreed to supervise the class for which her duties were essentially taking attendance and assigning grades.

    
    

21. The 3:45 pm physical education class was in no way adapted to the special needs of the SED students, nor was Respondent in any way qualified to adapt the course. In fact, Respondent was capable only of taking attendance; she could not reasonably have been expected to assign grades to the students under the circumstances. These obvious shortcomings in the course and teacher were well known by Ms. Dean, Ms. Lethbridge, Ms. Furnville, Trout Lake employees, Petitioner's District ESE employees, and probably Trout Lake students.

    
    

22. Prior to the creation of the 3:45 pm class, Trout Lake had provided a recreation period at 3:45 pm, during which Trout Lake residents could play softball or other sports while being supervised by counsellors. Petitioner merely overlaid the 3:45 pm class upon the recreational activities already taking place at 3:45 pm.

    
    

23. The decision to create the 3:45 pm course was driven exclusively by financial, not educational, reasons. The 3:45 pm physical education class was not started until October 20, 1992. Despite this fact, IEP's for the students assigned to the new physical education class indicated that the class had begun October 6, which was when the FTE count took place. Respondent signed these forms at the direction of Ms. Lethbridge, who had prepared them.

    
    

24. On October 30, 1992, grades were due for the first grading period. Because she had only seen the 3:45 pm physical education class for about two weeks, Respondent did not turn in any grades to Avon Park High School for the class. She was promptly contacted by an Avon Park High School guidance counsellor, who informed her that she had to give the students grades. So, she tried as best she could to grade them, largely on the basis of having seen them play around the campus at various times.

25. Neither the grades for the first grading period nor any subsequent grades for the 3:45 pm class fairly measured the performance of ESE students in a physical education class. Regardless of Respondent's efforts, the class was by design not a physical education class, Respondent was ill-equipped to teach and grade a real ESE physical education class, and Respondent's participation by design had been reduced to taking attendance and assigning grades.

    
    

26. Understandably, the Trout Lake students and staff treated the 3:45 pm class like it was simply the recreational period; from their perspective, nothing had changed. Presumably as had been the case before Petitioner's paperwork created the 3:45 pm physical education class, the students, who had returned to their residence after the end of their regular classes, did not always reappear for the 3:45 pm class. Sometimes, counsellors would require the students to stay and clean their rooms rather than attend the 3:45 pm physical education class.

    
    

27. When attendance problems first arose, Respondent would go to the residence to find the students and a counsellor. The students were required to be escorted from the residence to the school building by a counsellor. On occasion, Respondent could not find a counsellor. Other times, not finding the students at the residence, Respondent would look for them on the courts or fields where they played, but sometimes could not find them there either.

    
    

28. In January, 1993, Respondent learned from the shop teacher, who taught a 3:45 pm shop class, that Trout Lake had hired an art teacher to offer a 3:45 pm art class. Consequently, attendance at the 3:45 pm physical education further declined, as the students decided each day where they would go--shop, art, or physical education. One time, Respondent, who had gone to the residence looking for the students, waited 30 minutes while they debated where to go;

    they ultimately decided to go to art. These developments merely confirmed the obvious--the creation of the physical education class in October was a change of form, not substance.

    
    

29. Shortly after the attendance problem first arose, Respondent told Ms. Lethbridge that students were not coming to the 3:45 pm class and counsellors were not cooperating. Ms. Lethbridge merely told Respondent to check attendance and asked her how she would grade them. Ms. Lethbridge did not mention the matter to other ESE staff or Ms. Dean.

    
    

30. Evidently feeling that Ms. Lethbridge would take care of the matter, Respondent did not again raise it with Ms. Lethbridge or anyone else apart from Mr. Graves and one or more school aides, except for one time--described below-- with Ms. Dean. One time, Mr. Graves told Ms. Furnville of the attendance problems. The students began to show up for the 3:45 pm class for the next few days, but then quit attending after that.

    
    

31. Respondent understandably felt isolated at Trout Lake. She received no orientation from Ms. Dean or any of the ESE staff when first assigned to Trout Lake. She had to learn the customs from a paraprofessional and Mr. Graves, who himself had been assigned there only one year earlier and worked as the only teacher his first year. In addition, neither Respondent nor Mr. Graves was able or expected to attend faculty meetings at Avon Park High School.

32. Ms. Lethbridge visited the facility once every week to three weeks. However, she visited Ms. Dean only once monthly. Ms. Lethbridge's supervisor, Connie Tzovarras, visited the Trout Lake only one time between September, 1992, and March, 1993. The Avon Park High School Assistant Principal responsible for Respondent's evaluations, Paul Gentz, visited Trout Lake only once in the same period--for Respondent's evaluation.

    
    

33. From September, 1992, through mid-March, 1993, Ms. Dean visited Trout Lake twice. One time, she came when computers had been stolen. On this occasion, Respondent alluded to feelings of guilt over taking money to teach the 3:45 pm physical education class that the students were routinely not attending. Ms. Dean ignored Respondent's remark. The second visit of Ms. Dean was when she evaluated Mr. Graves.

    
    

34. Respondent submitted her gradebook to Ms. Dean, who did not discuss with Respondent the grades for the first grading period of ten days. Petitioner's policy is that the attendance problems at the 3:45 pm class should have been addressed by Ms. Dean. Respondent could reasonably have expected Ms. Lethbridge to share Respondent's concerns with Ms. Dean. However, based on Ms. Dean's failure to respond to Respondent's single comment, Respondent may reasonably have assumed that Ms. Dean was not especially interested in the attendance problems. The other likely source of assistance for Respondent was Petitioner's ESE office, which demonstrated no interest in the matter.

    
    

35. Ultimately, Ms. Dean received a letter of reprimand for her supervision of the Trout Lake teachers. The record is silent as to any discipline administered to Petitioner's District ESE staff.

    
    

36. Petitioner's witnesses testified that Respondent should have contacted Ms. Dean before leaving the Trout Lake school. In general, these witnesses attributed the authority for this practice to courtesy or professionalism. However, no such practice had existed when Respondent traveled from school to school as an itinerant gifted teacher.

    
    

37. In fact, Respondent was at first unsure of how she should handle signing in and out. She initially signed out at lunch. After awhile, she signed in once at 8:15 am and signed out once at 4:45 pm. The completed sign-in and sign-out sheets, which were kept at the school building at Trout Lake, were periodically submitted to the bookkeeper at Avon Park High School, who, as it turns out, was either not reading the sheets or ignoring all discrepancies. In any event, no one at Avon Park objected to the single sign-in and sign-out, and Respondent reasonably assumed that her practice was acceptable.

    
    

38. Respondent began occasionally to leave the school early and sign out at 3:45 pm after it became clear to her around the end of November, 1992, that the 3:45 pm physical education class existed only as a meaningless entry in the students' IEP and Petitioner's FTE count. By this time, the students assigned to the class were no longer reporting to one of the places at which they had played before the creation of the physical education class and where, subsequent to its creation, Respondent was to take attendance and grade the students' "work."

39. Respondent signed out early about nine times, which were all in December, 1992, and January, 1993. Again, no one at Avon Park said anything, probably because, unknown to Respondent, no one noticed the timesheet. However, there was not enough variation in the amounts of her paychecks to credit Respondent's testimony that she assumed that Petitioner might not be paying her for those days when she signed out early.

    
    

40. Eventually, without signing out early, Respondent left school before 4:45 pm when the physical education class was scheduled. But she never failed to appear and perform her minimal duties on any occasion that the assigned students reported to the class.

    
    

41. Respondent testified that she sometimes left the school early on Wednesday afternoons, during her planning time, to perform school-related duties, such as gathering supplies or meeting with school personnel at other locations. Undoubtedly, these are appropriate activities for which Respondent may leave the campus. Given the customs of Trout Lake, Respondent's past experience as an itinerant teacher, and the failure of Ms. Dean or any ESE staff to instruct Respondent differently, there was no requirement that Respondent advise anyone at Avon Park High School or the ESE District office of such departures for school business or that she sign out when leaving the campus on school- related business.

    
    

42. The absence of a requirement of notice to someone at Avon Park High School or at least signing out before leaving campus on school-related business is crucial to Petitioner's case. There is considerable evidence that Respondent was not at the Trout Lake school building on Wednesday afternoons, as well as other weekdays between 3:45 pm and 4:45 pm. But, with one exception, there is no evidence that Respondent was not pursuing school-related matters during such times. Given the remoteness of Trout Lake and its relative lack of on-site resources, Respondent necessarily had to leave the campus to carry out normal planning activities. If Respondent's departures from campus had been accompanied by a violation of some clearly defined policy, it would be reasonable to infer that Respondent was pursuing personal business.

    
    

43. However, Petitioner has proved that one of Respondent's absences had nothing to do with school business. On March 17, 1993, which was a Wednesday, Ms. Dean found no cars in the school parking lot at Trout Lake sometime between 2:00 and 2:30 pm. In fact, Respondent had left Trout Lake at 11:00 am to go volunteer at the annual Sebring Road Race. She appeared at the racetrack at about 1:30 pm where she relieved another volunteer, who was an ESE staffperson with approved leave. Although Respondent had obtained personal leave for the second and third days of the race--March 18 and 19--she had not done so for March 17, probably because she knew that she did not have enough leave left for three days.

    
    

44. By letter dated March 26, 1993, Petitioner advised Respondent that she was charged with misconduct in office, willful neglect of duties, violation of School Board Policy 2.31, and violation of Section 231.45, Florida Statutes.

    The letter also cites a violation of Section 231.44, Florida Statutes, for absence without leave.

    
    

45. The testimony of Dr. John Martin, Petitioner's Deputy Superintendent, explained that the allegation of willful neglect of duties, which is omitted in the case against Mr. Graves, is due to Respondent's failure to teach the 3:45 pm physical education class. The remaining allegations, which are the same as those asserted against Mr. Graves, involve Respondent's absences without leave.

46. The March 26 letter further informs Respondent that the Highlands County School Board, at its next meeting on April 8, 1993, would consider the recommendation of the Superintendent that Respondent's employment be immediately terminated. In the meantime, the letter states that Respondent was suspended with pay.

    
    

47. On April 8, 1993, Petitioner terminated Respondent. By letter dated April 14, 1993, Petitioner advised Respondent that it had determined that she owed the School District $3272.09 for monies paid for which duties were not performed and $343.14 in excessive sick leave taken. Petitioner recovered these sums from Respondent by withholding them from her final paycheck.

    
    

48. By letter dated May 19, 1993, Respondent requested a formal hearing on her termination.

    
    

    CONCLUSIONS OF LAW

    
    

49. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

50. The March 26, 1992, letter from Petitioner to Respondent identifies three grounds for suspension and termination: absence without leave, willful neglect of duty, and misconduct in office.

    
    

51. Section 231.36(4)(c) provides that a teacher on continuing contract may be suspended or dismissed at anytime during the school year for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."

    
    

52. "Misconduct in office" is defined in Rule 6B-4.009(3) as a violation of the Code of Ethics of the Education Profession, as adopted in Rule 6B-1.001, or the Principles of Professional Conduct for the Education Profession, as adopted in Rule 6B- 1.006. Rule 6B-1.001 contains various ethical objectives stated in fairly general terms. In contrast, Rule 6B-1.006 contains 14 specific principles. If Petitioner intended to predicate its termination decision upon any of these general ethical provisions or specific professional principles, then the March 26 letter should have identified the specific provisions or principles involved, especially since none of the provisions or principles appears particularly pertinent to the matters involved in this case.

    
    

53. Petitioner may have mentioned misconduct in office in the March 26 letter merely to incorporate the charge of absence without leave within a statutory requirement. Section 231.44, which addresses absences without leave, was repealed during the time of Respondent's absences. Laws of Florida, 7 and 8, Chapter 92-67.

    
    

54. The remaining charges thus are that Respondent willfully neglected her duties and was absent without leave. As noted above, Section 231.36(4)(c) authorizes the suspension or dismissal of a teacher on continuing contract for willful neglect of duty. Although Section 231.44, which authorizes the forfeiture of compensation and termination of any district school employee who is willfully absent without leave, was repealed at the time, Highlands County School Board Policy 2.31 provides similarly for persons willfully absent without leave. There is no reason that school-board policy, especially over a matter as

    obvious as absence without leave, cannot supply the authority to terminate a school district employee, such as Respondent.

    
    

55. Consistent with the testimony of Dr. Martin, the reason for the charge of willful neglect of duty against Respondent, as compared to the absence of such a charge against the respondent in DOAH Case No. 93-2867, concerns Respondent's alleged failure to teach the 3:45 pm physical education class. Because Petitioner has failed to prove the existence of the duty, Petitioner has failed to prove that Respondent willfully neglected such a duty.

    
    

56. Petitioner has proved that Respondent was willfully absent without leave for six hours on March 17, 1993.

    
    

57. The withholding of excessive sick leave appears to have nothing to do with the present case. Clearly, though, Petitioner withheld more salary than it proved in this case that it was entitled to withhold. Instead of $3272.09, Petitioner has demonstrated a right to withhold only $147, which represents Respondent's hourly rate of $24.50 multiplied by six hours.

    
    

58. Petitioner has already suspended Respondent without pay for the remaining two months of the 1992-93 school year and the first four months of the present school year. There is no evidence of unsatisfactory work performance, including planning, by Respondent or that Respondent ignored any warnings from Petitioner concerning her attendance at work.

    
    

59. School Board Policy 2.31 authorizes termination for absence without leave and, like the now-reinstated Section 231.44, does not impose a minimum period of absence before termination may be imposed. However, termination for a proved absence of six hours is Draconian and excessive to the point of violative of due process. Given the circumstances, especially the discretion vested in Petitioner and the amount of time that has passed since the termination, the most feasible resolution would be to refund Respondent $3125.09 and reinstate Respondent, without back pay, to a continuing contract at her former rate of pay as of the first day of school after January 1, 1994.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Highlands County School Board enter a final order refunding to Respondent $3125.09 and reinstating Respondent, without back pay, to a continuing contract at her former rate of pay as of the first day of school after January 1, 1994.

ENTERED on December 9, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on December 9, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2866

Treatment Accorded Proposed Findings of Petitioner 1-20: adopted or adopted in substance.

21: rejected as unsupported by the appropriate weight of the evidence. 22-29: adopted or adopted in substance.

30: rejected as unsupported by the appropriate weight of the evidence. 31-33: rejected as irrelevant.

34: rejected as unsupported by the appropriate weight of the evidence. 35: rejected as irrelevant.

36-39: adopted or adopted in substance.

40-41: rejected as recitation of evidence. 42: rejected as irrelevant.

43: rejected as unsupported by the appropriate weight of the evidence and irrelevant in the absence of proof that Respondent was not off-campus pursuing school-related duties.

44: adopted.

45-52: rejected as subordinate and incomplete insofar as Respondent may have been performing school-related duties.

53-57: rejected as subordinate. 58: adopted to a limited extent. 59: rejected as irrelevant.

60-64: adopted or adopted in substance.

Treatment Accorded Proposed Findings of Respondent 1-11: adopted or adopted in substance.

12-13: rejected as irrelevant. 14: adopted.

15, 18-19, and 22: adopted except for the occasions that Respondent was absent without leave.

16: adopted.

17: adopted as to oral instruction. Rejected as to the implication that no other sources of authority exist regarding absence without leave.

20: rejected as recitation of evidence and subordinate. 21: adopted.

23: rejected as recitation of evidence. 24: adopted.

25: adopted in substance.

26: adopted.

27: rejected as unsupported by the appropriate weight of the evidence. 28-31: adopted or adopted in substance.

32: adopted, although Respondent only indirectly alluded to the attendance problems with Ms. Dean when she mentioned that she felt guilty taking the money when she had no class to teach.

33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected that Respondent invariably signed out as unsupported by the appropriate weight of the evidence.

35-36: adopted.

COPIES FURNISHED:

Gavin W. O'Brien

Gavin W. O'Brien, P.A. 1806 Manatee Avenue West Bradenton, Florida 34205

Mark S. Herdman Kelly, McKee

Post Office Box 75638 Tampa, Florida 33675-0638

Superintendent Richard Farmer Highlands County School District

426 School Street

Sebring, Florida 33870-4048

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

SCHOOL BOARD OF HIGHLANDS COUNTY, FLORIDA

HIGHLANDS COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NUMBER: 93-2866

MARIAN D. DUNHAM,

Respondent.

/

FINAL ORDER

THIS CAUSE came on before the School Board of Highlands County, Florida, for the purpose of issuing a final agency order. The hearing officer assigned by the Division of Administrative Hearings (DOAH) in the above styled case submitted a recommended order to the Highlands County School Board (BOARD) a copy of that recommended order is attached hereto.

FINDINGS OF FACT

1. The Board hereby adopts and incorporates by reference the findings of fact set forth in the recommended order except for the following:

   
   

   1. Paragraph 31 is rejected in its entirety. Additional conclusion of law number 2a (below) reflects that teachers hold a position of great trust. Teachers are charged with leadership and are traditionally held to a higher moral standard than other professionals. It is not required that the school district adopt rules setting out every standard for teachers. The teaching profession requires the exercise of independent judgment. The Respondent had been employed as a teacher in Highlands County, Florida for a number of years (T- 147, L-9).

   2. The third sentence of paragraph 34 is rejected. As a professional educator the Respondent is responsible for personally reporting any concerns to her supervisor rather than through any intermediary. See conclusion of law number 2a.

   3. The second and third sentences of paragraph 36 are rejected in their entirety. These findings do not fairly represent the evidence as Dunham was instructed to report to her class and stay there (T-79, L-5); she was told she could leave Trout Lake only if she checked with her direct supervisor (T-112, L-4); the faculty handbook requires her to notify the office if she left

      campus (T-222, L-10); there is no distinction between Trout Lake and Avon Park High School in terms of leaving campus (T-386, L-11); she must obtain permission to leave the workplace (T-387, L-18); and she is paid to be on campus and it is not reasonable for her to leave without notice (T-396, L- 14-22).

   4. Paragraph 38 is rejected in its entirety is an unfair characterization of the evidence. The Respondent began leaving school early but clients (students) did not stop attending class (T-25, L-1); if the teacher was there the students would go to class (T-26, L-2); there was never a time when the students did not go to class (T- 26, L-6); there was never a time when the P.E. class

      did not meet (T-33, L-15); and the Respondent was told to report to class and stay there (T-79, L-5).

   5. The second sentence of paragraph 40 is rejected. For authority see paragraph 1d hereof.

   6. The final sentence of paragraph 41 is rejected as not based upon competent substantial evidence. For authority see paragraphs 1c and 2a hereof.

   7. The first sentence and the final three sentences of paragraph 42 are rejected as not based upon competent substantial evidence. For authority see paragraphs 1c and 2a hereof.

   8. The first sentence of paragraph 47 is rejected as not based upon competent substantial evidence.

   9. The last two sentences of paragraph 14 are rejected as not based upon competent substantial evidence. The Respondent had alternate approximately 45 minute periods during which she had no class to teach therefore she could use this time for planning (T-414, L-15-25). The testimony on page 422 line 23 is stricken as leading.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Board hereby adopts and incorporates by reference the conclusions of law set forth in the recommended order except for the following:

1. Teachers hold a position of great trust. Teachers are charged with leadership and are traditionally held to a higher moral standard than other professionals. It is not required that the school district adopt rules set- ting out every standard for teachers. The teaching pro- fession requires the exercise of independent judgment. Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975); Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981); Forman v. State Board of Accountancy, 243 So.2d 4 (Fla. 3rd DCA 1971). The purpose for which Respondent was absent is irrelevant. Respondent under her contract as a teacher as a matter of law has a duty to be present at school at the class site to supervise her class in the event a student appears even if she does not teach. In so ruling the board has balanced its requirement to super- vise its students, the potential liability, the teacher's common sense and professionalism against the teacher's due process.

2. Petitioner has proved the existence of a duty for the Respondent to be on campus during class time and proved the Respondent has willfully neglected such duty; that the Respondent was willfully absent without leave as described in the charges; that Petitioner has demonstrated a right to withhold the sum of $3,272.09 representing Respondent's hourly rate of $24.50 multiplied by the hours during which she was absent without leave; and that School Board Policy 2.31 authorizes termination for absence without leave without any minimum absence.

3. The final sentence of paragraph 55 and all of paragraphs 56, 57, 58 and 59 are rejected as not consistent with the findings of fact.

PENALTY

The recommendation of the hearing officer is rejected as not in keeping with the findings of fact and conclusions of law. The Respondent is terminated for willful neglect of duty and absence without leave. The sum of $3,272.09 shall be withheld from Respondent's final check.

This order may be appealed by filing Notices of Appeal and a filing fee as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing this order.

HIGHLANDS COUNTY SCHOOL BOARD

BY:

Robert L. Fitzgerald, Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to Mark Herdman, HERDMAN & SAKELLARIDES, P.A., 34650

U.S. Highway 19 North, Suite 308, Palm Harbor, FL 34684, Gavin O'Brien, Esquire, 1806 Manatee Avenue West, Bradenton, FL 34205-5927, Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, Marian Dunham, 1429 Wightman Avenue, Sebring, FL 33870 and Harold D. Graves, 2510 Par Road, Sebring, Florida 33872, this 24th day of March, 1994.

Connie Miller, Clerk

Docket for Case No: 93-002866

Orders for Case No: 93-002866