Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on December 4, 1996, by video-conference. The parties, their counsel and witnesses and the court reporter participated from the video-conference center in West Palm Beach, Florida; the judge presided from Tallahassee, Florida.
School Board of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard
For Respondent: Thomas L. Johnson, Esquire
Law Offices of John J. Chamblee, Jr.
A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
In response to the July 2, 1996 notice, Respondent requested a formal administrative hearing and the case was referred to the Division of Administrative Hearings, where it was assigned and scheduled as described above.
At the hearing, Petitioner presented testimony of Dr. Walter Pierce, Jane Terwillegar, Vernon A. Pickup-Crawford, Ernie Camerino, Brenda Pullum, Jonathan Leahy and W. Paul LaChance.
Petitioner’s eight exhibits were received into evidence.
Respondent testified in his own behalf and presented testimony of Dr. Brian Soroka and Clarence Gunn. Respondent’s five exhibits, including the collective bargaining agreement, were received in evidence.
The hearing transcript was filed and, after an extension was granted, the parties filed their proposed recommended orders on January 13, 1997. Respondent’s motion to strike paragraphs four and five of Petitioner’s proposed conclusions of law is DENIED;
however, as discussed below, the only charge at issue is the charge of “neglect of duty”.
Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties)
Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties)
The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff.
In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any
disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995.
Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records.
When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal
of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended.
Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances.
From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent.
On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996:
Dear Mr. Auerbach:
Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence.
Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association.
(Respondent’s exhibit 1)
Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his
supervisor, so that he could work out the appropriate leave based on the doctor’s determination.
In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating:
This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none.
(Petitioner’s exhibit 1)
Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine.
Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief:
“I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer.
Between April 16 and June 14, 1996, Respondent was absent forty-two work days.
Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent:
Dear Mr. Auerbach:
Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work
release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent.
At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996.
(Petitioner’s exhibit 3)
There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996:
Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms.
(Respondent’s exhibit 3)
On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick
leave without approved leave and his failure to return to duty after being released by his doctor.
There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”.
Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences.
Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work.
Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was
the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain.
Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days.
The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period.
Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A).
When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining
agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D)
Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence.
The collective bargaining agreement describes procedures for discipline of employees, including this:
Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.
The collective bargaining agreement also requires progressive discipline (reprimand through dismissal)
...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
(Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.57(1), Florida Statutes.
An employee of the district under continuing contract such as Respondent may be suspended or dismissed only if the charges are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Section 231.36(4)(c), Florida Statutes.
In this case, Respondent has been charged with willful neglect of duty. This term is defined in rule 6B-4.009, Florida Administrative Code:
(4) 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.
Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. See, for example, Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986). However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence. The text of the agreement
does not support the district’s contention that this standard of proof in the collective bargain agreement applies only when an employee appeals through the grievance procedure. By agreement, in collective bargaining, a school district may limit or abridge its authority to discipline continuing contract teachers. School Board of Seminole County v. Morgan, 582 So.2d 787 (Fla. 5th DCA 1991).
The district in this case met its burden of proof. In April, and again in May 1996, Respondent was given clear notice of his obligation to justify his continuing absences. He failed to comply with the directions in these notices and refused to return to duty. Progressive discipline as described in the collective bargaining agreement was unnecessary in Respondent’s circumstances; a suspension would have provided no disciplinary consequence, as he had long since depleted his paid leave. By April 1996, when he received this first letter from Mr. Crawford, he had ample notice that his absences were a problem that would subject him to discipline. Respondent’s refusal to either return to work or to provide a medical basis for his continued absences was flagrant and purposeful.
RECOMMENDED: that the School District of Palm Beach County enter a final order terminating the employment contract of Respondent, Walter Auerbach.
DONE and ENTERED this 20th day of February 1997 in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February 1997.
School Board of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard
Thomas L. Johnson, Esquire
Law Offices of John J. Chamblee, Jr.
Dr. Joan Kowal
Frank T. Brogan Commissioner of Education The Capitol
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
