vs.
Respondent.
) Case No. 03-1958
Pursuant to notice, a final hearing was held in this case on September 24, 2003, in Sarasota, Florida, before William R. Pfeiffer, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Petitioner: Robert K. Robinson, Esquire
Bowman, George, Scheb, Toale & Robinson, P.A.
Brown, Clark, Christopher & Demay Sarasota City Center, Suite 1100 1819 Main Street
The issues in this case are whether Petitioner provided reasonable notice to Respondent of its intent to suspend without pay and terminate Respondent's employment, and whether
Respondent could unilaterally resign to retire while the Superintendent's pending recommendation to terminate Respondent was before Petitioner.
Petitioner contractually employed Respondent as a teacher and elementary school principal for 29 years. On May 2, 2003, Respondent was found guilty of two counts of Sexual Battery upon a Child by a jury in Sarasota, Florida, and was immediately taken into custody.
On May 5, 2003, Petitioner's Superintendent sent Respondent a letter to his home address attempting to notify him that she intended to recommend suspension without pay and eventual termination of his employment based upon his recent criminal conviction involving moral turpitude. Petitioner's letter further sought to advise Respondent that he had a right to contest the proposed termination.
On May 7, 2003, Respondent's wife, the holder of Respondent's power of attorney, signed the acknowledgement of receipt for Petitioner's letter. On May 9, 2003, Respondent's wife tendered Respondent's written resignation and retirement from employment. Petitioner refused to accept his resignation and declined to pay him $60,000 in sick leave.
On May 19, 2003, Respondent filed a petition to challenge Petitioner's action to terminate and requested a hearing.
Petitioner forwarded the request to DOAH to assign an Administrative Law Judge.
At the final hearing, Petitioner presented the testimony of one witness, and introduced Exhibits 3 through 9 and 13
through 15, all of which were admitted into evidence. Respondent presented the testimony of one witness, and introduced Exhibits 1 through 5 and 7 through 11, which were admitted into evidence.
The transcript of the hearing was not filed. Both parties timely filed their Proposed Recommended Orders, which have been
duly considered.
Petitioner, the Sarasota County School Board, employed Respondent as a teacher and principal of Garden Elementary School in Venice, Florida, for 29 years.
Respondent was employed under an annual contract throughout each year of employment, the last of which began July 1, 2002, scheduled to end June 30, 2003.
In February 2002, Respondent was arrested and charged with seven counts of Sexual Battery by a Person over Eighteen
(18) Years of Age upon a Child Eleven (11) Years or Younger.
On March 5, 2002, Respondent was suspended with pay by Petitioner. While suspended with pay, Respondent's annual contract expired on June 30, 2002, and was renewed by Petitioner
for the 2002-2003 school year. Respondent remained suspended with pay and did not perform any services for Petitioner during the 2002-2003 school year.
On or about April 28, 2003, Respondent completed, but did not file, an application to retire from the Florida State Retirement System and executed a Durable Family Power of Attorney to his wife, Mrs. Cook. The power of attorney empowered Mrs. Cook to make decisions on behalf of Respondent for all personal, legal, and financial matters.
On May 2, 2003, Respondent was found guilty of two counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger by a jury in the Circuit Court for the Twelfth Judicial Circuit, in and for Sarasota County, Florida. Respondent was immediately taken into custody and placed in the Sarasota County Jail.
Three days later, on May 5, 2003, notwithstanding Respondent's incarceration in the Sarasota County Jail, Superintendent Hamilton misdirected a certified letter to Respondent's home address, attempting to advise him of her intent to recommend to Petitioner on the following day, May 6, 2003, that Respondent be suspended without pay. Hamilton's letter further sought to notify Respondent that she intended to recommend that he be terminated from his employment at the
School Board meeting scheduled for May 20, 2003, due to his recent conviction.
pay.
On May 6, 2003, Petitioner suspended Respondent without
On the following day, May 7, 2003, Mrs. Cook received
Superintendent Hamilton's certified letter dated May 5, 2003, but did not open it nor become fully aware of its contents until a later time. Respondent was and remains incarcerated. There is no evidence that he ever received actual notice of the Superintendent's certified letter of May 5, 2003.
In addition to the untimely and misdirected notice, the Superintendent's certified letter failed to advise Respondent that he could contest the proposed suspension without pay. Respondent's wife credibly testified that if she had received notice of Petitioner's intent prior to the School Board's meeting of May 6, 2003, she would have attended the meeting and attempted to submit Respondent's resignation.
On May 7, 2003, Petitioner mailed a follow-up letter to Respondent's home address, via standard U.S. mail, attempting to notify him that the Board had suspended him without pay. Respondent remained incarcerated and did not receive this letter. It is unknown whether Mrs. Cook ever received the letter or when she became aware of its contents.
On May 9, 2003, Mrs. Cook invoked her power of attorney on behalf of Respondent and submitted his resignation from employment to Petitioner, effective immediately, in order to retire. On that day, Mrs. Cook attempted to hand-deliver Respondent's retirement/resignation letter to Petitioner's personnel office, along with Respondent's previously executed retirement papers, however, the personnel office staff refused to accept the paperwork. Instead, Mrs. Cook was immediately directed to speak with Allen Wilson, Executive Director of Human Resources and Labor Relations for Petitioner, but he was unavailable.
Later that same day, Mrs. Cook met with Mr. John Zoretich, Petitioner's Director of Instruction/Curriculum. Mr. Zoretich agreed to receive Respondent's letter of resignation/retirement from Mrs. Cook, but instructed her to deliver Respondent's executed retirement papers to the payroll department. Mrs. Cook complied, but again, payroll staff refused to accept the retirement papers and instructed her to
contact Mr. Wilson. Mrs. Cook's repeated efforts to communicate with Mr. Wilson were unsuccessful.
Petitioner's personnel and payroll departments refused to accept Respondent's executed retirement papers due to Petitioner's pending consideration of Superintendent Hamilton's termination recommendation.
The parties agree that the amount of terminal pay at issue, based upon Respondent's effective daily rate of pay, is approximately $60,000.00.
On May 12, 2003, Mrs. Cook forwarded Respondent's previously executed retirement application by facsimile and U.S. Mail to the Florida Retirement System. The Florida Retirement System acknowledged its receipt in correspondence dated June 18, 2003, indicating a date of receipt of May 13, 2003, an employment termination date of May 3, 2003, and a retirement date of June 2003.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (2003).1
Petitioner, pursuant to Section 1012.23(1), Florida Statutes, has the authority, except as provided by law or the State Constitution, to adopt rules governing personnel matters.
Discharge of Employment
Pursuant to Section 1012.33(6)(b), Florida Statutes, any member of the district administrative staff may be suspended or dismissed at any time during the term of the contract for the "conviction of any crime involving moral turpitude." The
evidence demonstrates that Respondent's conviction sufficiently and horrifically serves as just cause for his termination.
Notice of Intent to Suspend Without Pay and Terminate
Pursuant to Section 6.37 of the Sarasota School Board Rules, a suspended employee is entitled to a hearing if the suspension is without pay. In the case of a dismissal action, the employee "shall be entitled to a hearing on the merits of the case in accordance with the provisions of Chapter 120, Administrative Procedures Act." Id.
In both instances, the School Board shall provide the affected employee with reasonable notice and further advise the employee "that in the event that a written request for a hearing is not received by the Superintendent within ten (10) days after receipt of said notice, that the employee waives his/her right to a hearing." Id. In addition, in the event reasonable notice is not provided by the Superintendent, "the employee shall be deemed to have requested a hearing." Id.
A county school board is a state agency falling within the Administrative Procedure Act for purposes of quasi-judicial administrative orders. Sections 120.50 and 120.57, Florida Statutes. Where an employee can only be suspended or terminated for cause, they are deemed to have a contractual property interest in their job. See Sublett v. District School Board of Sumpter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
Section 6.37 of Petitioner's Rules specifically provides Respondent the right to a procedural hearing before he can be suspended without pay or terminated and has attached a protected property interest and a right to due process in such an event. Accordingly, there must be adherence to established procedures to effectuate a change of status of a contract holder under terms of a continuing contract as a school board employee. Burns v. School Board of Palm Beach County, 283 So. 2d 873, 874 (Fla. 4th DCA 1973).
Petitioner was obligated to provide Respondent with reasonable notice of its intended suspension without pay and termination, the basis for its action, his right to a hearing on the recommended action, and a reasonable time frame in which to prepare.
The evidence establishes that Petitioner's notification was plagued with irregularities and failed to provide Respondent with reasonable notice of its intention to suspend him without pay. First, Petitioner's notice of the suspension without pay action was untimely. Respondent's wife received notice of Petitioner's intent to suspend one day after Petitioner had already acted. Respondent was denied the opportunity to address Petitioner and formally contest the Superintendent's suspension recommendation.
Second, Petitioner's notice relating to suspension was inadequate in that it failed to fully inform Respondent of his rights to request a hearing on the Superintendent's recommendation to suspend him without pay and the respective time frame. In other words, Respondent was not provided a "clear point of entry into the administrative process." See
Steinman v. The Florida State University Board of Regents, 414 So. 2d 1102, 1104 (Fla. 1st DCA 1982)(actual notice of agency action which does not inform petitioner of his right to request a hearing and the time limits for doing so is inadequate to trigger commencement of the administrative process).
Finally, the evidence demonstrates that Petitioner's notice to suspend was misdirected. Petitioner's notice was incorrectly sent to Respondent's home address and not to the location of his incarceration. There is no evidence that Respondent actually received the written notice. Petitioner's mistake does not relieve it from its responsibility to provide proper service and reasonable notice. See Brooks v. Department
of Professional Regulation, 578 So. 2d 381 (Fla. App. 1st Dist. (1991))(Department of Professional Regulation failed to give adequate notice prior to revoking licenses of a nurse who indicated a desire to attend and present evidence on her own behalf; nurse was imprisoned at time of hearing and there was no evidence she was provided any notice prior to the meeting).
While Respondent ultimately became aware of the notice and timely requested a hearing to contest his termination, he was denied that same right to contest his suspension without pay due to Petitioner's mistake. Petitioner's suggestion at hearing that Respondent could have, after the fact, appealed his suspension without pay within 30 days of that action is not persuasive.
Terminal Pay
Pursuant to Section 6.912 of the Sarasota County School Board Rules, "The Board will provide terminal pay to an employee at early or normal retirement or to his/her beneficiary if service is terminated at death." Terminal pay shall include "one hundred percent (100%) of the employee's accumulated leave days, not to exceed 180 days . . ." Furthermore, the "employee must leave the employment of the School Board directly into the Florida Retirement System in either early or normal retirement status."
The Tendered Resignation
Petitioner's right to terminate its employee and Respondent's right to resign to retire employment are at issue in this case.
Respondent argues that he cannot be terminated since he timely and properly resigned to retire from his employment before being notified of Petitioner's intent to terminate him
and is therefore entitled to his terminal pay. Petitioner, on the other hand, contends that any flawed notice is immaterial since Respondent's resignation was not approved by the Board, is ineffective, violates his employment contract, and is tantamount to abandoning his job. Petitioner argues that Respondent is not entitled to his terminal pay.
Pursuant to Section 6.52 of the Sarasota County School Board Rules, "Any administrative or instructional staff member who wishes to resign shall submit his/her resignation in writing addressed to the School Board. The letter of resignation shall state the reasons for the resignation and the desired effective date." A resignation for the existing school year "may be accepted during the contractual period of service; provided that an acceptable reason is given and a qualified and satisfactory replacement is available." Id. A resignation for the ensuing school year "shall be accepted without question if submitted prior to June 20 of the current school year." Id.
While Petitioner's policy on retirement does not specify the precise method or manner in which employees must execute their retirement, Section 6.62 makes a clear distinction between the Board's acceptance of an immediate resignation and an ensuing resignation.
In addition, the parties' employment contract specifically provides:
3. The Employee agrees to perform the obligations attaching to the position for which employed as prescribed by the School Board for the full period of service for which this contract is made, in no event to be absent from duty without leave or to leave his/her position without first being released from this contract by the School board, to observe and to enforce faithfully the laws, rules, regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules regulations, and policies are applicable to the position held by him.
Respondent tendered his resignation on May 9, 2003, during the contractual period of service, stating:
I, Mark Cook, hereby retire from my employment with the School Board of Sarasota County effective immediately. I am no longer at liberty to perform my duties as a school administrator.
Pursuant to Section 6.52 of Petitioner's Rules and the parties' contractual obligations, Respondent's resignation required Board action and approval to be effective. In fact, courts have generally held that an employee, under contract, having tendered a written resignation to his principal or superintendent, may regard it as ineffective or at least avoidable until it is acted upon by the school board. See Hart v. School Board of Wakulla County, 340 So. 2d 121 (Fla. 1st DCA 1976).
Similarly, the Sarasota County School Board may regard Respondent's resignation as ineffective until it acts upon it.
Respondent's tendered resignation for the existing school year constituted an offer to resign and required Petitioner's action. Petitioner possessed the contractual right to accept or deny Respondent's offer whether or not Respondent's reason for resignation was acceptable and there was a satisfactory replacement, and it was required to take formal action.
In sum, Respondent was arrested and charged with multiple counts of sexual battery upon a minor. For an entire year, Respondent was suspended with pay. Eventually, Respondent was tried, convicted, and imprisoned. Upon his conviction, Respondent was unable to complete the terms of his employment contract so he attempted to resign and collect $60,000 worth of sick pay. Petitioner refused to accept Respondent's resignation and sought termination.
Accordingly, Petitioner scheduled consideration of Respondent's termination and resignation tender for the May 20, 2003 public meeting agenda for action. Notwithstanding the misdirected notice relating to termination, Respondent timely requested and was provided an administrative hearing on the issue.
Petitioner has clearly demonstrated just cause to terminate Respondent's employment. Respondent's acts were depraved. His conviction involved moral turpitude and he materially violated the terms of his employment contract.
Petitioner is not obligated to accept, nor has it accepted Respondent's resignation. Accordingly, it is ineffective and
without force.
DONE AND ENTERED this 7th day of January, 2004, in Tallahassee, Leon County, Florida.
WILLIAM R. PFEIFFER
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2004.
1/ All citations are to Florida Statutes (2003) unless otherwise indicated.
Brown, Clark, Christopher & Demay Sarasota City Center, Suite 1100 1819 Main Street
Robert K. Robinson, Esquire Bowman, George, Scheb, Toale
& Robinson, P.A.
Daniel J. Woodring, General Counsel Department of Education
325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
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.
