STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SEMINOLE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 99-1159

)

HELENA CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Sanford, Florida, on July 13, 1999. The following appearances were entered:

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board Education Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent's alleged repeated absences without receiving prior approval from her supervisor in December 1998, and January and February 1999, alleged insubordination and conduct unbecoming a school board employee, constitute just cause for termination/discipline.

PRELIMINARY STATEMENT

This matter arose when Respondent was notified by letter, dated February 5, 1999, from the Superintendent that he would recommend to the School Board of Seminole County (School Board) that Respondent be terminated for insubordination, misconduct in office, and other violations of work rules. Petitioner subsequently filed a Petition for Termination. Respondent requested an administrative hearing on the Superintendent's recommendation on February 18, 1999. This matter was referred to the Division of Administrative Hearings on March 9, 1999. Both parties responded separately to the Initial Order scheduled to be held on July 13, 1999. The formal hearing was set for July 13, 1999, at 1:00 p.m., at the School Board offices in Sanford, Florida. Proper notice of the hearing was given to Respondent at her correct mailing address and from the evidence, it appears that Respondent was aware of the fact of the hearing. Respondent did not appear at the scheduled time. After a reasonable period of time, a diligent search and inquiry was made into her whereabouts. However, she could not be located. At approximately 1:40 p.m., the hearing was convened. At the hearing, Petitioner called one witness to testify and offered

13 exhibits in evidence. No evidence was offered on behalf of Respondent.

On July 27, 1999, a person who identified herself as Respondent contacted the secretary to the undersigned and made

inquiry in regard to the hearing process and procedure. In an effort to ensure that Respondent had received proper notice of the hearing, counsel for Petitioner was directed to set up a telephone conference call with the Respondent. Constructive notice of the hearing was given to the Respondent of the time, date and telephone number for the hearing. At the appointed time, counsel for Petitioner placed a telephone call to Respondent's residence and a male resident advised that Respondent was not present and he did not know where she was or how she could be located. Subsequent calls to the same number resulted in reaching the voice mail of Respondent only.

Therefore, after diligent search and inquiry, Respondent could not be located and the conference call was ended. Petitioner filed its Proposed Recommended Order on July 23, 1999. No proposals have been filed on behalf of Respondent. Petitioner's proposals have been given careful consideration and are adopted where appropriate.

FINDINGS OF FACT

1. The employment relationship between the School Board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the School Board and the Seminole Educational Clerical Association, Inc. (SECA).

2. The Respondent, Helena Clark, is currently employed by the Petitioner, School Board, as a Finance Cashier assigned to

   the Human Resources Department. Her direct supervisor is John Reichert, Director.

3. The Superintendent of Public Schools of Seminole County, Florida, is authorized to recommend the suspension and termination of non-instructional employees to the School Board.

4. The School Board is authorized to suspend and terminate non-instructional employees upon the recommendation of the Superintendent of Public Schools, provided that just cause for suspension and termination is present.

5. The Respondent is currently under suspension without pay pending the outcome of the administrative hearing process.

6. Prior to being employed in the Human Resource Department, Respondent was employed for several years as a finance clerk in the school district's finance department. In settlement of disciplinary proceedings for misconduct, Respondent was given a two-day suspension without pay. In addition, Respondent was transferred from the Finance Department to the Human Resources Department on February 5, 1997. At that time, Respondent was instructed that she should perform her duties in a professional and courteous manner.

7. Respondent complied with the directive to conduct herself in a professional and courteous manner for about the first six months of her tenure in the Human Resources Department.

8. Thereafter, Respondent began engaging in unprofessional and discourteous conduct directed to other employees on a regular

   basis, including: "Shooting them a bird;" spraying one fellow employee with Lysol spray; and making threatening gestures to two employees in a manner that reasonably caused them to believe that their physical safety was in danger.

9. Additionally, Respondent failed to follow procedures for notifying her supervisor that she required personal leave with pay for December 23, 1998; vacation leave for January 12 and 13, 1999; and personal leave without pay for December 18, 1998. Because the leave requests were submitted after the fact, in violation of the Petitioner's published policies and the terms and conditions of the collective bargaining agreement, they were denied. Respondent was deemed to have been "absent without leave" on each of the respective days.

10. Initially, Respondent's supervisor, John Reichert, intended to recommend a five-day suspension without pay for the "absent without leave" infractions. However, following her meeting with Reichert, Respondent engaged in unprofessional, threatening, and discourteous conduct directed to Barbara Williams, Mary Kristeff, and Barbara Thayer. He then determined to recommend that she be terminated.

11. Prior to being transferred to Human Resources Department pursuant to the agreement of February 5, 1997, Respondent had an extensive disciplinary record involving unprofessional and discourteous conduct while assigned to the Finance Department.

12. Respondent's conduct had a negative effect upon the day-to-day operation of the Human Resources Department.

13. Respondent's conduct in December, January, and early February 1999 was insubordinate and conduct unbecoming a School Board employee.

14. Just cause for the termination of Respondent has been shown.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1) and 120.569, Florida Statutes.

16. The burden of proof is on the Petitioner to establish by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo vs. School Board of Dade County,

    569 So. 2d 883 (Fla. 3rd DCA 1990); Allen vs. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); and McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996).

17. Respondent may be terminated or otherwise disciplined for absence without approved leave, conduct unbecoming a school board employee or insubordination, provided that just cause is present. Article VII, Sections 5 and 11, Collective Bargaining Agreement Between The School Board of Seminole County and the Seminole Educational Clerical Association, Inc.

18. Just cause for discipline is a reason which is rationally and logically related to an employee's conduct in the

    performance of the employee's job duties and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling or misconduct. State ex rel Hathaway vs. Smith, 35 So. 2d 650 (Fla. 1948); In re: Grievance of Towle, 665 A. 2d 55 (Vt. 1995).

19. Just cause for termination/discipline regarding a

    
    

    non-administrative non-instructional employee of the School Board is not limited by the exemplar list of offensive conduct set forth in Article VII, Section 5 of the collective bargaining agreement. Dietz vs. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994).

20. Insubordination is a lower level of misconduct than "gross insubordination." Muldrow vs. Board of Instruction of Duval County, Florida, 189 So. 2d 414 (Fla. 1st DCA 1966).

21. Insubordination may be shown by a single act of disrespect on the part of a non-instructional employee for the authority of supervisors or managerial employees employed by a School Board. Jacker vs. School Board of Dade County, Florida,

    426 So. 2d 1149 (Fla. 3rd DCA 1983), Muldrow, supra, and Ford vs. Southeast Atlantic Corporation, 588 So. 2d 1039 (Fla. 1st DCA 1991). Insubordination may be as simple as an act which constitutes a violation of a previously given order to refrain from identified conduct. Johnson vs. School Board of Dade County, Florida, 578 So. 2d 387 (Fla. 3rd DCA 1991).

22. Conduct unbecoming a public employee is conduct which falls below that level of conduct which a public agency has the right to expect from its employees. Conduct unbecoming a public employee constitutes a ground for termination or other discipline. Seminole County Board of County Commissioners vs. Long, 422 So. 2d 938 (Fla. 5th DCA 1982).

23. Respondent was absent without approved leave on December 18, 1998; December 23, 1998; and January 12 and 13, 1999.

24. Respondent's unprofessional, discourteous, and sometimes threatening conduct directed toward fellow employees over a period of months constituted insubordination and conduct unbecoming a public employee. Respondent's conduct was not isolated incidents of poor judgment on Respondent's part. It evidenced a lack of respect for her supervisors and fellow employees and were not the result of provocation. Suluki vs. Unemployment Appeals Commission, 502 So. 2d 78 (Fla. 3d DCA 1987).

25. Respondent's prior acts of misconduct may be considered in determining the existence of just cause for termination/discipline. C.F. Industries, Inc. vs. Long, 364 So. 2d 864 (Fla. 2nd DCA 1978); and Johnson vs. School Board of Dade County, Florida, supra.

26. The focus of a just cause analysis is the employee's misconduct and whether the employee had notice that such conduct would be grounds for discharge. In Re Grievance of Towle, supra.

27. Respondent was notified verbally and in writing that repetition of her prior misconduct would be grounds for discharge.

28. The failure of Respondent to appear for the hearing notwithstanding, Petitioner is required to present a prima facie case for termination.

29. Petitioner has presented a prima facie case for the termination of Respondent.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Seminole County School Board find that Respondent's actions constitute absence without approved leave, insubordination and conduct unbecoming a school board employee; and that Respondent's conduct constitutes just cause for termination.

DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999.

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Seminole County Public Schools Educational Support Center

400 East Lake Boulevard Sanford, Florida 32773

Dr. Paul J. Hagerty, Superintendent School Board of Seminole County Educational Support Center

400 East Lake Boulevard Sanford, Florida 32773

Helena Clark

1114 West 8th Street Sanford, Florida 32771

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-001159

Orders for Case No: 99-001159