The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment, as a Microsystems Technician, with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. In November 2001, Mr. Li was employed with the School Board as a Microsystems Technician. No dispute exists that, as a Microsystems Technician, Mr. Li is an educational support employee, and his employment is governed by the collective bargaining agreement between the School Board and AFSCME, hereinafter the AFSCME Contract. In April 2004, Mr. Li was assigned to two worksites, Cypress Creek Elementary School, hereinafter Cypress Creek, and Blue Lakes Elementary School, hereinafter Blue Lakes. At both schools, his responsibilities included installing computers, running the network, maintaining the software for the computers, and training students and teachers on how to use the software. At Cypress Creek, Mr. Li was assigned to work ten (10) days per month. He experienced problems with his attendance immediately at Cypress Creek, resulting in the principal, Faye Haynes, issuing an “Absence From Worksite Directive,” hereinafter AWS Directive, on May 27, 2004, to Mr. Li. The AWS Directive included, among other things, in detail his leave without pay, authorized (LWOA), and leave without pay, unauthorized (LWOU). Further, the AWS Directive advised Mr. Li, among other things, that his absence from his duties adversely impacted the educational and work environment; and directed him, among other things, to be in regular attendance at the school and on time, to report his intent to be absent directly to the principal or assistant principal, and to provide to the principal or assistant principal written documentation, by way of a written medical note from the treating physician, of absences for illness. Additionally, Mr. Li was advised that future absences would be considered LWOU unless and until the documentation was provided. Mr. Li signed the AWS Directive. However, his attendance failed to improve. A second AWS Directive was issued by Principal Haynes to Mr. Li on September 7, 2004, as a result of his being absent on September 2, 2004. Mr. Li signed the second AWS Directive on the same date. The second AWS Directive included the same matters of which he was previously advised and the same directives. Moreover, Mr. Li was advised that his non- compliance with the directives would be considered a violation of professional responsibilities or insubordination. Mr. Li’s absences failed to improve, and his absences adversely affected the worksite at Cypress Creek. Both teachers and students were suffering from the lack of timely computer- associated activities that were dependent upon Mr. Li timely performing his responsibilities. Mr. Li’s attendance was complicated even more on October 26, 2006. He was arrested for burglary, involving a vehicle, and battery. At the time of his arrest, Principal Haynes was not aware that the reason for Mr. Li’s immediate absence was that he was in jail; she was only aware that he had not reported to work at Cypress Creek. Mr. Li testified at hearing that, while he was in jail, he was given one (1) telephone call and that he called his wife. He explained to his wife what had happened and requested her to call Cypress Creek. Further, Mr. Li testified that his wife called Cypress Creek and indicated that he had been arrested. No testimony was presented contradicting the testimony that Mr. Li’s wife had contacted Cypress Creek. His testimony is found to be credible. On November 1, 2006, Principal Haynes issued and mailed to Mr. Li an Employment Intention Memorandum, hereinafter EI Memorandum. The EI Memorandum indicated, among other things, the dates of Mr. Li’s absences; that the absences were unauthorized and warranted dismissal on the grounds of job abandonment; that several options were available (indicating the options); and that an immediate response was requested to any of the options. Principal Haynes was concerned that Mr. Li was in danger of losing his job due to the number of unauthorized absences and, as a result, she included, as one of the options, a form requesting a leave of absence without pay. Mr. Li testified that he did not doubt that Principal Haynes was attempting to help him. On November 3, 2006, after serving ten (10) days, Mr. Li was released from jail. He had missed seven (7) consecutive workdays. Mr. Li reported to work at Blue Lakes, where he was also the Microsystems Technician. However, he was informed by the principal at Blue Lakes that he was required to report to Regional Center V, as an alternate location, a consequence of his arrest. Being at Regional Center V, Mr. Li was not able to perform any duties and responsibilities at either Cypress Creek or Blue Lakes. Regarding the EI Memorandum, Mr. Li testified at hearing that he received the EI Memorandum after he was released from jail, but did not complete the form requesting a leave of absence without pay because he was unsure as to whether he should complete and return it. He was not sure as to whether completing the form would benefit or harm him, so he did not complete it. His testimony is found to be credible. The evidence is clear and convincing that Mr. Li intentionally did not complete the form requesting a leave of absence without pay. Not having the services of Mr. Li adversely impacted Cypress Creek. Principal Haynes needed the computer services for her school, and, to provide the needed services, she was forced to hire another school employee, a Microsystems Technician, on an hourly basis to work in the evenings to perform Mr. Li’s responsibilities. In order to pay for the needed services being provided by another Microsystems Technician, Principal Haynes had to redirect funds from other programs. As a condition of his alternate placement, on November 3, 2006, Mr. Li executed a Terms and Conditions of Administrative Placement at Alternate Location, hereinafter Terms and Conditions, form. Included in the Terms and Conditions was a requirement that he report to his work assignment during his regular duty hours, which were 8:00 a.m. to 4:00 p.m. Monday through Friday; that he report his attendance by signing-in as directed; that, if he was to take leave due to illness or personal reasons, he must notify the person to whom he reports his attendance in the mornings, who was the administrative director, Melanie Fox, Ph.D., or, according to Dr. Fox, to an administrative secretary; and that he must complete and return work assignments in a timely manner. Mr. Li had attendance problems immediately at Regional Center V, and Dr. Fox advised and reminded him that he was able to apply for leave for a medical condition, if he had such a situation. Due to Mr. Li’s absences, while he was assigned to the Regional Center, on January 19, 2007, Dr. Fox issued him a second EI Memorandum, which was his second EI Memorandum in less than three months. The EI Memorandum indicated that Mr. Li was absent from his worksite 34 times, beginning with September 15, 2006, and ending with January 18, 2007. Furthermore, Dr. Fox indicated, among other things, in the EI Memorandum that the absences were unauthorized and warranted dismissal on grounds of abandonment; that he had four options to which she requested his immediate reply, including notifying her of his need for leave and his intended date of return, requesting leave or resigning, using the forms provided; that he had three days in which to reply; that his absences were considered unauthorized until he communicated directly with her; and that his failure to respond would result in termination due to abandonment. Included with the EI Memorandum, per the School Board’s policy, was a Request for Leave for Absence Without Pay form and a Letter of Resignation form, as options for Mr. Li. He did not complete either form. To determine whether Mr. Li’s absences were authorized or unauthorized, Dr. Fox was guided by the terms of the AFSCME Contract. No dispute exists that the AFSCME Contract was applicable and controlling. Dr. Fox determined that, according to the AFSCME Contract, after the covered employee’s sick leave is expended, any subsequent absence becomes unauthorized unless the employee provides a note from an attending physician. As a result, Mr. Li had expended his sick leave and, therefore, his absences were leave without pay, unauthorized, but, when he provided notes from an attending physician, the absences were changed in the payroll reporting system to leave without pay, authorized. Mr. Li returned to work. However, his absences did not cease. As to Mr. Li’s arrest for burglary, involving a vehicle, and battery, on March 6, 2007, he pled nolo contendere to battery; adjudication was withheld; and his sentence included one-year probation, performing community service, and participating in an anger management program. Mr. Li testified at hearing that no burglary was involved, only a fight. His testimony is found to be credible. On May 16, 2007, a conference-for-the-record, hereinafter CFR, was held to address Mr. Li’s attendance problems; violation of School Board Rule 6Gx13-4E1.01, Absences and Leaves; abandonment of position; insubordination; a review of his record; and his future employment status with the School Board. He did not attend the CFR due to being ill, i.e., passing kidney stones and experiencing great pain. A written Summary of the CFR was prepared, and Mr. Li was provided a copy of it. He does not deny that he received a copy of the Summary of the CFR. Included in the Summary of the CFR were Mr. Li’s absences for the 2005-2006 school year and from July 1, 2006 through May 3, 2007. For the 2005-2006 school year, he was absent six (6) sick days, six (6) personal days, nine (9) days LWOA, and one (1) day LWOU, totaling 22 days, excluding vacation days. From July 1, 2006 through May 3, 2007, he was absent two (2) sick days, three (3) personal days, 68 days LWOU, and 37 days LWOA, totaling 110 days, excluding vacation days. A copy of School Board Rules 6Gx13-4E1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties, were attached to the Summary of the CFR. Also, included in the Summary of the CFR were directives to Mr. Li concerning his absences, which was his third time he was being issued directives. The directives included being in regular attendance and on time at the worksite; communicating directly with Dr. Fox when he intended to be absent; documenting absences for illness through a written medical note from his treating physicians presented to Dr. Fox upon his return to the worksite, with a failure to do so resulting in the absences being recorded as LWOU; and adhering to School Board rules, in particular 6Gx13-4E-1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties. Furthermore, in the Summary of the CFR, Mr. Li was advised, among other things, that the number of absences were deemed excessive; that his absence from work had adversely impacted the educational program and the effective operation of the work unit; that, if he had attended, he would have been provided an opportunity to respond with reasons for his excessive unauthorized absences and insubordination; that noncompliance with the directives would necessitate a review by the Office of Professional Standards, hereinafter OPS; and that a legal review by the School Board attorneys might result in recommended action or disciplinary measures, including dismissal. Even after receiving the Summary of the CFR, Mr. Li’s problem with absences continued. As of June 13, 2007, he accumulated an additional 29 unauthorized absences. Subsequent to the CFR, Principal Haynes recommended the termination of Mr. Li because she determined that she could not depend upon him and that she needed a dependable Microsystems Technician at Cypress Creek. The Regional Superintendent for Region Center V concurred in her recommendation. OPS concurred in the recommendation because it considered Mr. Li’s conduct to violate the AFSCME Contract and the School Board’s rules regarding Responsibilities and Duties, Code of Ethics, and Absences and Leaves. As to the unauthorized absences, Mr. Li’s deposition was taken by the School Board, and, during the deposition, he presented documents purporting to excuse some of the unauthorized absences. Further, at hearing, he presented additional such documents. Mr. Li testified that his personnel file should have contained all of the documents that he had presented; that he requested his physicians to provide the documents to Cypress Creek; that his physicians informed him that they were not required to indicate the specific nature of the illness for which they were treating him but required only to indicate that they were treating him on the dates indicated; and that his physicians forwarded the documents to Cypress Creek, some by fax. The School Board agreed to accept the documents as demonstrating that the absences indicated on the documents should be excused and changed to authorized absences. Even with the changing of the documented absences from unauthorized to authorized, the School Board asserts that the total number of unauthorized absences is 74. The 74 unauthorized absences include 12 days that Mr. Li was in jail and appeared in court, which were brought to the attention of the School Board by Mr. Li. No dispute exists that Mr. Li had exhausted all of his sick and personal leave. Mr. Li does not contest that the total number of unauthorized absences is 74. The evidence demonstrates that Mr. Li had 74 unauthorized absences. However, at hearing, Mr. Li testified that he wants the reason known as to the medical reason for his absence from the worksite. He testified that the reason for the unauthorized absences, excluding the aforementioned 12 days, was that he was suffering from depression, which caused his immune system to weaken, which lead to other health problems, such as being susceptible to viruses and infections. Also, he testified that he was being seen by a psychiatrist. Furthermore, Mr. Li testified that, prior to his arrest, he was participating in the Employee Assistance Program, hereinafter EAP, due to his depression, and was being seen by a counselor; and that he continued in the EAP until his termination. Additionally, Mr. Li testified that he failed to complete the Request for Leave of Absence Without Pay form provided by Dr. Fox on January 19, 2007, because he was unsure as what might happen if he completed it since Dr. Fox had indicated to him that she did not believe that he was ill. Moreover, Mr. Li testified that he was not attempting to dispute the 74 unauthorized absences and to have the unauthorized absences changed to authorized absences, but that he was attempting to demonstrate that he was not a “bad person,” that he was not faking his illness, that the absences were not on purpose, and that he was not insubordinate. The undersigned finds Mr. Li’s testimony to be credible. The undersigned provided Mr. Li with the opportunity to continue the hearing in order for him to have his psychiatrist and counselor testify in this matter; however, Mr. Li decided not to take advantage of a continuance but to proceed with the hearing without the psychiatrist and counselor as witnesses. Even though the undersigned finds Mr. Li’s testimony regarding his depression credible, in particular, as to the effect of his depression on his physical well-being, and even though depression undoubtedly affects one’s mental well- being, including one’s thinking process, no testimony was presented as to what extent Mr. Li’s depression affected his thinking process. The evidence demonstrates that Mr. Li was physically ill during the absences, except for the 12 absences he was in jail and appeared in court. The evidence demonstrates that Mr. Li was not in regular attendance and on time at his worksite. As to the unauthorized absences, the evidence demonstrates that Mr. Li failed to provide documentation, regarding his illness, through the production of written medical notes from his treating physicians. The evidence demonstrates that Mr. Li failed to communicate his unauthorized absences to Principal Hayes or Dr. Fox and that he intentionally failed to communicate his unauthorized absences to them. The evidence fails to demonstrate that Mr. Li refused to request a leave of absence. The evidence demonstrates that he did not request a leave of absence because he was unsure as to whether such a request would benefit or harm him, especially when Dr. Fox informed him that she did not believe that he was ill, but at the same time, providing him with the request. An inference is drawn and a finding of fact is made that Mr. Li’s failure to request a leave of absence was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending and dismissing Jorge Li from employment with it. DONE AND ENTERED this 15th day of January 2008, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 15th day of January, 2008. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Jorge Li 11458 Southwest 109th Road, Apt. X Miami, Florida 33176 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether just cause exists for Petitioner, Polk County School Board (School Board), to terminate Respondent's employment as a classroom teacher.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise public schools in Polk County. This includes the power to discipline classroom teachers. See §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). The record does not disclose whether Respondent holds a professional service contract or has an annual contract with the School Board. In any event, he has been employed with the School Board as a classroom teacher since September 2016. Before moving to Florida in 2016, Respondent taught motion picture television arts in Ohio for four and one-half years. Before that, he worked in the motion picture industry for 27 years. From September 2016 until he was suspended in January 2018, Respondent taught Television (TV) Production at Haines City High School and supervised the school's TV news program. In the program, students film events on campus before and after school, learn how to edit the film, and then prepare videos for school use. Mr. Lane is the school principal. Based on an allegation that he was observed sleeping in class on November 29, 2017, coupled with a three-day suspension, without pay, that he served a month earlier, the School Board seeks to terminate Respondent's employment. Specifically, the termination letter alleges that on November 29, 2017, Respondent "was found sleeping at [his] classroom desk," "students [were] unsupervised and scattered about [the] classroom," and this conduct constitutes "serious misconduct." Sch. Bd. Ex. 4. To terminate Respondent, the School Board relies upon the fourth step in the four-step progressive discipline process found in the Teacher Collective Bargaining Agreement (CBA), which governs the employment of instructional personnel. Article 4-4.1 provides that, "except in cases where the course of conduct or the severity of the offense justifies otherwise," a teacher may be terminated only after progressive discipline has been administered in Steps I, II, and III. Sch. Bd. Ex. 8. On October 24, 2017, Respondent received a three-day suspension without pay for making inappropriate comments during a discussion with students in his class. Due to the serious nature of the incident, the School Board accepted the principal's recommendation that it bypass the first two steps of progressive discipline and invoke discipline under Step III. Respondent did not contest or grieve that action. Therefore, Respondent has not been given progressive discipline under Step I (a verbal warning in a conference with the teacher) or Step II (a dated written reprimand following a conference). In the fall of school year 2017-2018, Respondent taught TV Production-Editing during fourth period. The TV Production area encompassed a large suite of rooms, including a main classroom, a TV news room, a control room, and two hallways with lockers for equipment. Typically, there were between 25 and 30 students in the class. Respondent wears contact lenses, but because of chronically dry eyes, he must use artificial tears four to eight times per day in order to avoid swelling of the eyelids. To properly hydrate his eyes, after using the artificial tears, Respondent tilts his head back, closes his eyes, and rolls his eyes for a few minutes to allow the eyes to absorb the solution. Midway through his fourth-period class on November 29, 2017, Ms. Young, the assistant principal, entered Respondent's classroom to do an unannounced walk-through. She observed the lights off and Respondent sitting at his desk with his eyes closed and "leaned back" in his chair with his mouth open. Ms. Young assumed he was asleep so she cleared her throat, then waved her hand, and finally knocked on his desk twice, but he did not open his eyes. She then knocked louder on the desk and called his name. This appeared to startle Respondent and he sat up and looked around the class. After she informed him that she was performing a walk-through in his class, Respondent replied "okay," and said he was aware she was there. Ms. Young was in Mr. Smith's classroom area approximately five minutes. After getting his attention, she walked through the entire suite of rooms and observed "some" students on their phones, "some" on the computer, and "some" walking in the back of the room. Even though Mr. Smith testified at hearing that his students were "absolutely malicious" and "they'll do anything," Ms. Young did not report seeing any unusual or unsafe conditions that might result in placing any student's safety in jeopardy. Mr. Smith denies that he was asleep. He testified that just before the assistant principal did her walk-through, he had put drops in his eyes, cocked his head back, closed his eyes, and was in the process of rolling his eyes to rehydrate them. A few minutes earlier, he had given permission for a student to use the restroom. When Ms. Young entered the classroom, he knew someone had entered the room but assumed it was the student returning from the restroom. When he opened his eyes, he greeted Ms. Young, who replied that she was "walking through [his] classroom." According to Ms. Young, it was "very evident" that he was asleep, "100 percent," and it was not possible that he just had his eyes closed. Ms. Young's testimony concerning her observations is the most persuasive and has been credited. The incident was reported to Mr. Lane the same day. After the incident was reported to Mr. Lane, he recommended that Respondent be terminated for serious misconduct. Sch. Bd. Ex. 4. Mr. Lane explained that this action was justified because of concerns over the "safety of the children" in Respondent's class, given the large suite of rooms under his supervision. He also testified that the incident brought into question Respondent's effectiveness as a teacher. The School Board's attempted reliance at the hearing on a few other times when Respondent allegedly was sleeping in class has been disregarded for two reasons: they are based mainly on hearsay testimony, which does not supplement or corroborate other competent evidence; and, more importantly, they are not included as charges in the termination letter or parties' Pre-hearing Stipulation. Pilla v. Sch. Bd. of Miami-Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995) (the teacher must have fair notice and an opportunity to be heard on each of the charges brought against him). On December 13, 2017, the School Board's human resource services department informed Respondent by letter that he was suspended, with pay, pursuant to Article 4-4.1 of the CBA pending the School Board's consideration of a recommendation that he be terminated, effective January 24, 2018. Sch. Bd. Ex. 5. According to the termination letter, the School Board determined that Respondent's actions "constitute serious misconduct" for which "just cause" for termination exists, and "[t]ermination constitutes Step IV of Progressive Discipline as outlined in Article 4-4.1 of the [CBA]." Sch. Bd. Ex. 5.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order issuing a verbal warning (Step I) or a dated written reprimand (Step II) to Respondent for being observed sleeping in class on November 29, 2017. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2019.
The Issue Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board. Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services. On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early. Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation. Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check." There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early." Miss Towle immediately reported the statement to Principal Wright. Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry. Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their 10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000. Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate. Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine. Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent. Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you." Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities. Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment. Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct. Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it." The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001. The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement. Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct. Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said. There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK 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 20th day of April, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773
The Issue The issue is whether, in violation of Section 231.36(1)(a) and (6), Florida Statutes, Respondent committed misconduct in office when he pawned a school laptop computer and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 33 years old. His father has served Petitioner as a principal, and his mother has served Petitioner as a primary specialist; combined, Respondent's parents have 64 years' service in Petitioner's school system. Respondent attended high school locally, where he achieved prominence as a football player, and continued his football career in college. Petitioner hired Respondent in an instructional position on July 1, 1992, shortly after he obtained his bachelor's degree. Respondent began work as a pool substitute. At the time, he was also pursuing a master's degree in guidance. When a guidance job became available, Petitioner hired Respondent as a guidance counselor. After four years as a guidance counselor, Respondent became an assistant principal in March 2001 at a middle school. Three assistant principals help the principal at this middle school. Respondent's duties include supervision of discipline, safety, and maintenance of the school. On July 19, 2001, Respondent's principal assigned to Respondent an Apple G-4 Titanium laptop computer. Respondent understood that he was to use the computer for school-related job duties, such as staff development and classroom use. On August 25, 2001, Respondent took the computer to Richie's Pawn Shop in Tamarac to pawn the computer. Respondent disclosed to the pawn shop owner that the computer was owned by Petitioner, not Respondent. However, the pawn shop owner, who had known Respondent nearly 20 years earlier, when he had purchased items from the shop, nevertheless allowed Respondent to pawn the computer. Respondent signed a document that represented that he owned the computer. Pursuant to the agreement, the pawn shop owner gave Respondent $350. The agreement provided that Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $52.50. According to the agreement, at the conclusion of the first 30 days, Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $105. After 60 days, Respondent would lose the right to redeem the computer. Respondent used the money for expenses on a trip that he was taking that weekend to retrieve his four-year-old daughter, who was visiting Respondent's parents in Ocala. The following Monday, August 27, Respondent was back at work as an assistant principal. Respondent did not return to the pawn shop to redeem the computer for a little over two weeks. On September 12, Respondent returned to the pawn shop and attempted to redeem the computer. The prior day, though, a Broward County Sheriff's Officer, on a routine check of the pawn shop, had run the registration number of the computer that Respondent had pawned and learned that it was the property of Petitioner. The officer had informed one of Petitioner's investigators of the presence of the computer in the pawn shop. One of the law enforcement officers then ordered the pawn shop owner to hold the computer and not allow anyone to remove it. Pursuant to the order that he had received, the pawn shop owner informed one of Petitioner's investigators when Respondent tried to redeem the computer. Contrary to the allegation of the Administrative Complaint, Respondent went to the pawn shop to redeem the computer not knowing that Petitioner or law enforcement had discovered the wrongful pawning. Petitioner recovered the computer, undamaged. Petitioner's investigator correctly concluded that Respondent had not attempted or intended to deprive Petitioner of the computer permanently. He also correctly concluded that Respondent had not intended to deprive Petitioner permanently of the computer. Among the witnesses attesting to Respondent's value as an employee of Petitioner was Petitioner's Executive Director of Professional Standards and Special Investigation Unit. The Executive Director has served Petitioner for 28 years, including four years as a principal. While a principal, the Executive Director hired Respondent and found him a valuable employee. When the Professional Standards Committee recommended termination of Respondent, the Executive Director suggested to the Superintendent that he recommend a ten-day suspension and three-year demotion, which the Superintendent adopted as his recommendation to the School Board. Other witnesses with considerable knowledge of Petitioner testified to his enthusiasm, talent, energy, and competence as an employee of Petitioner. In particular, Respondent's principal, who has served Petitioner for 33 years, testified that Respondent showed considerable initiative and exceeded all expectations. Although unaware of the reason for Respondent's absence, the students and parents all missed Respondent. The principal testified that even the teachers were unaware of the reason for Respondent's absence. Describing Respondent as a "tremendous asset" to the school system, the principal testified that the incident did not diminish Respondent's effectiveness as an employee of Petitioner. The temporary loss of possession of the computer did not prevent Respondent from completing any of his work assignments, nor did it deprive anyone else from the use of a computer, as the school has dozens of extra computers. Respondent has not previously received discipline as an employee of Petitioner. Petitioner's Employee Disciplinary Guidelines provides in part: DISCIPLINARY GUIDELINES It is the intent of the School Board to treat all employees on a fair and equitable basis in the administration of disciplinary measures. Discipline is a corrective rather than a punitive measure. In dealing with deficiencies in employee work performance or conduct, progressive discipline shall be administered, except in situations where immediate steps must be taken to ensure student/staff safety. Progressive discipline may include, but is not limited to: informal discussion, oral warning, written warning, written reprimand, enrollment in professional skills enhancement programs, suspension without pay, demotion, change in contract status or termination of employment. There are certain categories of misconduct, however, which are so offensive as to render an employee no longer employable. The only appropriate disciplinary measure in these cases (See Section II, Category A) is the termination of the employment relationship with the Broward County School System (F.S., 231.28) The severity of the misconduct in each case, together with relevant circumstances (III (c)), will determine what step in the range of progressive discipline is followed. A more severe discipline measure will be used when it is in the best interest of the students of the community we serve. It is the intent that employees who have similar deficiencies in work performance or misconduct, will be treated similarly and compliant with the principle of just cause. * * * DISCIPLINARY ACTION (CATEGORY A) OFFENSE PENALTY Inappropriate sexual Dismissal conduct including, but not limited to, sexual battery, possession or sale of pornography involving minors, sexual relations with a student or the attempt thereof Sale/distribution of a Dismissal controlled substance Reckless display, Dismissal threatening with guns or weapons on School Board property or at School Board events (CATEGORY B) OFFENSE PENALTY (a) Committing a Suspension/Dismissal criminal act--felony * * * Unlawful possession, Suspension/Dismissal use or being under the influence of a controlled substance Driving Under the Suspension/Dismissal Influence under the scope of employment * * * (i) Possession of guns or Reprimand/Dismissal weapons on School Board property * * * (m) Any violation of The Reprimand/Dismissal Code of Ethics of the Education Profession in the State of Florida--State Board of Education, Administrative Rule 6B-1.001 * * * Misappropriation of Suspension/Dismissal Funds Insubordination, Reprimand/Dismissal which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature and given by and with proper authority Unauthorized use of Reprimand/Dismissal School Board property * * * Section III of the Employee Disciplinary Guidelines reserves to the Superintendent and School Board considerable discretion in imposing discipline, including termination, for any just cause. This section identifies a wide range of aggravating or mitigating factors, including the severity of the offense, degree of student involvement, impact on the school and community, number of repetitions of the offense, length of time since the misconduct, employment history, actual damage, deterrent effect of discipline, actual knowledge of the employee about the misconduct, related misconduct by the employee, pecuniary benefit by the employee, mental or physical harm to persons in school or community, length of employment, employee's evaluation, and employee's adherence to self-reporting policy. Although the actions of Respondent in this case may also constitute misuse of institutional privileges, they are best defined as misconduct in office. The record fails to establish that these actions rise to the level of immorality. The unlawful pawning of a school computer reduces an employee's effectiveness as an employee of the school system, even if, as here, few administrators, teachers, students, or parents know of the misconduct. Unlawfully pawning a school computer is a betrayal of trust that, once detected, is necessarily known by at least some superiors of Respondent, and their knowledge of this misconduct reduces the trust they can place in Respondent and must be able to place in each employee, especially administrators. Numerous mitigating factors apply in this case. The offense is not especially severe, especially given Respondent's intent to redeem the computer prior to the maturity date of the pawn. Nothing in the record suggests that Respondent or any other of Petitioner's employees was prevented or impeded from performing his or her duties due to the pawning of the computer for less than three weeks. The incident does not involve students. It is an isolated incident, and Respondent has not previously been the subject of discipline during his ten-year tenure with Petitioner. Respondent has been an outstanding employee. Another mitigating factor is Respondent's relative youth. Obviously, aggravating factors are that the incident involves pecuniary gain on Respondent's part, although a relatively modest amount, and Respondent did not self-report. Another aggravating factor is the deterrent effect of discipline in this case. Petitioner is justifiably concerned with safeguarding its computers. Obviously, the most applicable provision from the disciplinary guidelines is unauthorized use of school property, for which the penalty ranges from reprimand to dismissal. In some respects, the pawning of the computer is a minor instance of the unauthorized use of school property because Respondent was without the computer for less than three weeks, did not need the computer during that time to perform his school work, did not consume the property or shorten its useful life during its unauthorized use, and never intended to permanently deprive Petitioner of the computer. Also, others at his school did not go without computers while Respondent's computer was in the pawn shop. In one respect, the pawning of the computer is a serious instance of the unauthorized use of school property because it is an expensive asset of the school. The disciplinary guidelines also require the imposition of progressive discipline. The range for the unauthorized use of school property is reprimand to dismissal. Petitioner has imposed demotion and suspension, which more closely approach dismissal than reprimand. Petitioner's selection of discipline in this case is driven mostly by a desire to achieve deterrence and fairness. Petitioner must discourage its many employees from pawning school computers and other expensive, portable electronic equipment, even in situations, as here, where they do not intend to deprive Petitioner permanently of the asset. Deterrence is a listed aggravating factor, and, given the potential for a problem with this kind of behavior, deterrence is the most important aggravating factor. The fairness issue is more problematic for Petitioner. Petitioner is commendably trying to treat Respondent as it has treated two other, nonadministrative employees who were caught misusing computers. In one case, an employee broke into a secure area, stole a computer, and pawned it. In the other case, an employee with authorized possession of a computer pawned it, possibly with the intent of permanently depriving Petitioner of its property. Otherwise, the facts concerning aggravating and mitigating factors in these two cases are not developed in this record. The three cases are the same in that employees pawned school computers, but, based on this record, the resemblances end there. Respondent is a relatively young person, who admittedly exercised poor judgment, but his employment record with Petitioner has been outstanding and this misconduct constitutes an isolated incident. An important part of this case is the testimony of experienced, mature coworkers and superiors, who are informed about the incident and have known Respondent for many years. Supporting Respondent in his effort at least to reduce the punishment, these employees provide a balanced view of the competing factors in finding the appropriate discipline. They weigh the importance of deterring employees from misusing expensive school equipment against the importance of, as provided by Petitioner's disciplinary guidelines, treating discipline not as punitive, but as corrective--in recognition of the fallibility of the human element and its preeminence among Petitioner's assets. The Administrative Complaint seeks a 10-day suspension and demotion under one factual misunderstanding--that Respondent did not redeem the computer until after he knew that Petitioner had uncovered the misconduct. Under all of the circumstances, including Petitioner's use of progressive, corrective discipline, the most serious discipline authorized by the disciplinary guidelines is a 10-day suspension without pay.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order finding Respondent guilty of misconduct in office and imposing a ten-day suspension without pay. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of July, 2002. COPIES FURNISHED: Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez, Esquire Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 David T. Alvarez, Esquire Alvarez & Martinez, L.L.P. One East Broward Boulevard, Suite 604 Fort Lauderdale, Florida 33301
The Issue Whether or not Respondent is incompetent to teach as defined in Rule 6B-4.009(1)(a), Florida Administrative Code; and whether or not Respondent's alleged incompetency to teach and perform his duties constitutes just cause to terminate his employment and to terminate his continuing contract pursuant to Subsection 1012.33(4)(c), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Brevard County, Florida. It has entered into individual and collective agreements with the teachers it employs and has published bylaws and policies that control the activities of its teaching professionals. Respondent is a teacher who was employed by Petitioner from 1976 until his termination in April 2003. He had taught at Palm Bay Elementary from 1984 until 2003. Respondent has a degree in health and physical education. Early in his teaching career he was a classroom teacher; he has taught physical education since 1984. Petitioner conducts annual and interim evaluations of its instructional personnel using a formal Instructional Personnel Performance Appraisal System. The system delineates specific areas of evaluation, the basis for evaluation, and overall performance scores. The system evaluates nine "performance areas": planning, instructional organization and development, presentation of subject matter, instructional communication, knowledge of subject matter, responsibilities, relationships, management of student conduct, and student evaluation. In addition, there is an overall evaluation. Administrative personnel, in the instant case, the principal and assistant principal, are trained to perform the instructional personnel evaluations. Teachers receive one of three ratings in each performance area: unsatisfactory, needs improvement, or effective. Typically, evaluations are done annually. During his teaching career, Respondent served under five principals. In 1998, Joan Holliday became principal of Palm Bay Elementary. An analysis of the performance evaluations of Respondent's first 22 years of teaching reflects that he was an "effective" and "exemplary" teacher (high ratings during the particular rating periods). The same evaluations reflect recurring, but not consistent, shortcomings in the areas of planning and related responsibilities. In Respondent's 1997-1998 annual evaluation, Principal Joseph F. Padula, Jr., who had evaluated Respondent from 1984 to 1998, rated him as unsatisfactory in "planning." Comments by Principal Padula describe Respondent's failure to meet the requirements of the Sunshine State Standards and show evidence of "maintaining pace with new curriculum requirements." Principal Joan Holliday's first opportunity to provide an annual evaluation of Respondent was in the 1998-1999 school year. Her assessment reflects Respondent as a teacher who effectively teaches physical education, but could improve in planning, organization, and "could benefit from newer philosophies in physical education." Respondent responded to his 1998-1999 evaluation by letter dated February 25, 1999. The letter is defensive and reflects his opinion that he is making attempts to improve but that he believes that he is an effective physical education teacher. Respondent's 1999-2000 evaluations (there were two interim evaluations during the 1999-2000 school year) reflect that he was responding positively to the previous critical assessments although he continued to struggle with his lesson plans. The evaluations indicate that he was continuing to effectively teach and interact with students. A 2000-2001 interim evaluation, dated December 11, 2000, contains an unsatisfactory rating. This occurs in the "relationships" assessment area and reflects an apparent problem Respondent has related to "kidding" students which was sometimes not well-received and resulted in sporadic complaints from parents. This rating appears to be incongruous with the effective rating he received in "management of student conduct" in the same evaluation. He continued to receive effective ratings in "presentation of subject matter" and "instructional communication." According to Petitioner's Instructional Personnel Performance Appraisal System, an effective rating describes performance of "high quality" and is the highest rating achievable. The annual evaluation for the 2000-2001 school year rates Respondent unsatisfactory in the "relationships" category. Respondent's "kidding" of students, which caused parental complaints that evoked evaluator's concern and was the apparent basis for the unsatisfactory rating in "relationships" in the 2000-2001 interim and annual evaluations, was clearly subject to interpretation. Testimony did not reveal any "kidding" which would have caused the undersigned to believe Respondent warranted an unsatisfactory rating as defined in the Performance Appraisal System's rating scale definitions. In addition, negative references to Respondent's interaction with "classroom teachers" is not borne out by the testimony. Respondent received five unsatisfactory ratings in his 2001-2002 school year evaluation. He is rated unsatisfactory in "planning," even though it is indicated that Respondent "does turn in his weekly lesson plans," and there is criticism of his failure "to integrate reading, mathematics and writing into [physical education] curricula." At the final hearing, Principal Holliday testified that Respondent's lesson plans for 2001-2002 and 2002-2003 were "adequate." He also is rated unsatisfactory in "responsibilities" and "relationships"; these ratings are supported by comments indicating perceived communications and cooperation problems with other faculty. These perceived communications and cooperation problems were not borne out by the testimony of faculty members. On March 11, 2003, immediately prior to his termination, Respondent received six unsatisfactory ratings on an interim appraisal. This interim appraisal is the only evaluation Respondent received during the 2002-2003 school year. The evaluator observes that Respondent continued to fail to indicate in lesson plans how he was integrating writing, reading, and mathematics into his physical education curriculum and that "developmentally appropriate activities should be planned and taught at each class." Respondent was rated unsatisfactory in "instructional communication"; during Principal Holliday's tenure, Respondent had been rated effective (the highest rating) in this area on five occasions. Comments in this category indicate that Respondent "addresses students in a loud, threatening voice." He was rated unsatisfactory in the "responsibilities" category. "Communication with classroom teachers" is referenced in the comments to this category. The unsatisfactory in "relationships" is referenced by a need to continue to "work on his written and oral communication skills with students, parents, and peers." Principal Holliday had determined late in the 2001- 2002 school year that she was going to recommend Respondent for termination by reason of incompetency. As a result, the evidentiary value of this last assessment is questionable. Principal Holliday acknowledges that most of her concerns with Respondent relate to "lesson planning and communication." If Respondent, in fact, had inappropriate communication with students, such communication reflects teacher misconduct, not incompetence. Her testimony reflects that she formally observed Respondent teaching his class infrequently and that when she formally observed, "he did everything he was supposed to do in a correct manner." Principal Holliday's opinions of Respondent's teaching abilities and utilization of new methodology are largely drawn from her review of his lesson plans, not observing Respondent teaching physical education to students. She is critical of Respondent's failure to implement new (sometimes controversial) physical education methodology; however, she acknowledges that none of these new educational theories are mandated. Respondent's lesson plans for his final teaching years were "adequate." As far as Principal Holliday knows all of Respondent's students met the Sunshine State Standards for physical education; the Sunshine State Standards were all noted in his plan book during the final years she evaluated Respondent. The ultimate goal of a teacher is to teach children, not to write lesson plans. During the period of their relationship as principal- teacher, Principal Holliday wrote 29 letters of reprimand to Respondent. There are 58 faculty members at Palm Bay Elementary; during the five years she was principal, Principal Holliday issued four letters of reprimand to other faculty members. Most of the letters of reprimand concern subjects that appear in Respondent's interim and annual evaluations. Six Palm Bay faculty members testified as witnesses for Respondent. They represent 115 cumulative years of teaching experience; each of their teaching careers at Palm Bay Elementary overlap Respondent's, giving each a familiarity with Respondent. While they did not assess Respondent's lesson plans, record and document production, and other administrative details solely in the cognizance of administration, they had ample opportunity to observe Respondent teaching his physical education classes, his interaction with students, his interaction with faculty, his attention to his faculty responsibilities, and other areas formally assessed by the Instructional Personnel Performance Appraisal System. These informal evaluators collectively report Respondent as "very dependable," having "good rapport with the faculty," appearing to have "well-planned classes," and responsive to suggestions [made by other faculty members] for physical education for younger children, "very helpful." One witness advised, "he jokes with the kids; talks with them in a way they understand." One witness offered the unsolicited comment, "we really consider him to be an asset to the school because of his rapport with some of the older children. It's really nice to have him there." A witness who had early morning bus duty with Respondent reported that he was punctual and dependable. Nothing reported by any of these teacher/witnesses suggests a lack of teaching competency; in fact, their testimony suggests that Respondent was a good teacher. The evidence presented by Respondent's teaching contemporaries, admittedly not trained evaluators, presents a dramatically different assessment of Respondent's teaching performance than does that offered by Petitioner. The testimony of Respondent's teaching peers is credible. The assistant principal, who authored critical interim evaluations, testified that she did not witness Respondent interact with any student in an inappropriate way, except that he spoke loudly on occasion; that when she observed him teaching, the children appeared to be learning; that he conducted class in an appropriate and effective way; and that, recently, he appeared to be complying with Sunshine State Standards in terms of developing students' physical skills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, enter a final order finding that Respondent should not have been terminated and reinstating his continuing employment contract effective the date of his termination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of October, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Alan S. Diamond, Esquire Amari & Theriac, P.A. 96 Willard Street, Suite 302 Cocoa, Florida 32922 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699
The Issue Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, Florida Statutes, for alleged sale of marijuana, as set forth in Petition, dated May 11, 1979. The parties stipulated to the expected testimony of Petitioner's witnesses, and Respondent did not call any witnesses at the hearing. The parties further stipulated to the admission of Petitioner's Exhibits 1-5 and to Respondent's Composite Exhibit 1. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on an allegation the Respondent sold marijuana to a police officer on September 1, 1978. The matter was reported by the Superintendent, Polk County Public Schools, to Petitioner by letter of February 21, 1979. (Petitioner's Exhibit 3) The Petition herein was thereafter filed pursuant to directions of the State Commissioner of Education who on May 11, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by Answer, dated May 22, 1979. Respondent filed a prehearing Motion to Strike the Petition on the grounds that the Polk County Superintendent improperly referred the matter to Petitioner on the basis of Respondent's nolo contendere plea in a criminal proceeding, and had suspended her from employment without an evidentiary hearing. The motion further alleged that Petitioner based its probable cause finding upon hearsay evidence and that it has no authority to make a finding of criminal guilt without a judicial adjudication of the same. Respondent's Motion is denied. Petitioner's Rule 6A-4.37, Florida Administrative Code, prescribes procedures for revoking or suspending certificates. It provides, inter alia, that when a superintendent has "cause to believe" that a certificate holder is "guilty of any offense" for which the penalty is revocation or suspension, it is his duty to file a "signed report" with any supporting documentation with Petitioner. Such a report merely triggers an investigation by Petitioner's staff for consideration by its Executive Committee and ultimate finding of probable cause by the Commissioner of Education. All of these procedures are preliminary in nature. No definitive action can be taken against a certificate holder and no final adverse action may be taken without an opportunity for an adversary hearing. The cases cited by Respondent in support of the notion deal with evidentiary standards for the issuance of final orders and do not relate to such preliminary matters. Petitioner observed the requirements of its rules procedurally in this case.
Findings Of Fact Respondent Judy A. Cain holds Florida Teaching Certificate No. 339186, Post Graduate Rank II, valid through June 30, 1983, covering the areas of English and junior college. She was employed in the public schools of Polk County at Wahneta Elementary School as a teacher in September, 1978. (Stipulation) During the evening of September 1, 1978, a police officer of the City of Dundee, Florida, who was working in an undercover capacity, had a conversation with a woman later identified as Respondent and another woman named "Candy" at Walker's Bar in Dundee. They told the officer that they were going to buy a "bag" and get "high." The officer asked if they knew where he could pick up a "bag," and Respondent told him that she would have to have money to get it herself. The officer gave Respondent $20.00 and the two women left the establishment. They returned a short time later, and the woman known as Candy took a plastic bag containing a brownish vegetable matter from her purse and both women stated that it was "dynamite dope." Thereafter, laboratory tests established that the bag contained 18 grams of marijuana. (Stipulated testimony of Castro, Petitioner's Exhibit 1) On October 17, 1978, Respondent was arrested for the offense of sale of marijuana. On February 8, 1979, upon Respondent's plea of nolo contendere to sale and possession of a controlled substance, in the Polk County Circuit Court, an order was issued by the Court withholding adjudication of guilt and placing the Respondent on probation for a period of three years. Respondent was dismissed from employment by the School Board of Polk County on May 21, 1979, for immorality based on the sale of marijuana. Evidence concerning the foregoing disposition of judicial and school board proceedings was received at the hearing upon stipulation of the parties, but will not be considered herein for purposes of determining grounds for disciplinary action under Section 231.28, F.S. (Stipulated testimony of Castro, Wilson, Petitioner's Exhibits 1- 2, 5) In the opinion of Respondent's former principal, the Polk County School Board Director of Employee Relations, the Chairman of the School Board, and several parents, a teacher who commits the offense of sale of marijuana would thereby set an improper example for students and seriously reduce the teacher's effectiveness as an employee of the school system. (Stipulated testimony of Miles, S. Wilson, Qualls, D. Wilson, Aggelis, supplemented by Petitioner's Exhibit 4) During the school year 1975-76 in the Polk County School System, Respondent received a "satisfactory" rating on her annual teacher assessment report. She received the highest rating of "good" during the 1976-77 school year, and a "satisfactory" rating for the 1977-78 year. (Respondent's Composite Exhibit 1)
Recommendation That Respondent's teaching certificate be revoked for a period of two years. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1980. COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Wallace L. Storey Post Office Box 796 Bartow, Florida 33830 Hugh Ingram, Administrator Professional Practices Council 319 West Madison Street Tallahassee, Florida 32301
Findings Of Fact During the 1991/1992 school year, the Respondent, Patricia Albritton, was teaching in the Pinellas County Public School System under an annual Professional Service Contract, renewable from year to year as determined by the School Board. She was an "itinerant teacher," meaning she had classroom assignments at various schools. Her base school was Azalea Middle School, where she taught a strings orchestra class at 1:30 p.m., and then had a teacher planning period before end of the school day dismissal. On March 18, 1992, shortly after the bell rang for the beginning of the strings class at Azalea Middle School, the Respondent entered the class and, in preparation for the class, requested that the pupils rearrange the chairs in semi-circles to simulate the seating arrangement for an upcoming concert. The class was noisy, and many of the pupils either did not hear or ignored her instructions despite her having raised her voice to get their attention. Frustrated and angry, the Respondent picked up a wooden chair to almost face level and slammed it to the floor. In the process, she lost her grip on the chair, and it slammed to the floor with enough force for one leg of the chair to crack. She then asked the class a question to the effect of, "do I have to do cartwheels to get your attention?" As she turned away from the class, perhaps in response to a pupil's question as to why the class was being required to give a concert performance, the Respondent also mumbled to herself, but in a voice loud enough for some of the pupils to hear: "I'm getting so tired of this damn class." After this incident, the Respondent either set the chair to the side or put it in the adjoining supply room where the Respondent generally stored music stands. One or more of the pupils who tended to be the class troublemakers, or clowns, retrieved the broken chair, and one of them purposely sat on it and appeared to fake falling to the floor. The fall did not appear to be of the kind likely to have injured the pupil in any serious way. Nonetheless, the pupil complained that his head hurt and asked for permission to go to the clinic. The Respondent, who had observed the apparent fakery and knew the propensities of the pupil involved, declined permission, believing it was yet another in a series of ploys to get out of class. She said something to the effect of, "you were stupid to sit on the broken chair." When the pupil persisted in saying his head hurt, the Respondent mocked him, saying words to the effect, "oh, you poor baby." After the incident, the parents of the pupil who tried to fake falling in the broken chair became upset with the Respondent and took their son out of the Respondent's strings class. Two other parents expressed concern, primarily about the Respondent's angry outburst and throwing the chair. Otherwise, there was no evidence that the Respondent's effectiveness as an employee of the School Board was impaired as a result of the incident. She had no difficulties at any of the other schools where she taught. The Respondent has been a teacher in the Pinellas County School System for ten years. Aside from some criticism for being tardy in 1986, the Respondent generally was not seriously criticized for deficiencies in her teaching ability or other aspects of her work in the earlier years of her teaching career. On November 10 and December 4, 1989, the Respondent received written reprimands for poor judgment. The former reprimand included criticism for using inappropriate language loud enough for her pupils to hear her. Her performance evaluation for the 1990/1991 school year included criticism in the areas of judgment and interpersonal relationships with parents and children, and it expressed the need for improvement in those areas. At the beginning of the 1991/1992 school year, the Respondent was put on an annual comprehensive evaluation cycle. An October 23, 1991, appraisal of her instructional performance in a pre-arranged visit to her class by the assistant principal reflected that the Respondent was satisfactory in all areas. In mid-January, 1992, the Respondent grabbed a pupil at Azalea Middle School (the same boy who later faked falling in the broken chair) by the shoulders and shook him to get his attention. As a result, the Respondent's assistant principal cautioned the Respondent to exercise better judgment and, in keeping with School Board policy, to keep her hands off pupils she is reprimanding. A March 5, 1992, appraisal of her performance in non-instructional areas reflected improvement in that her judgment was rated satisfactory. After the March 18, 1992, incident, her rating for management of student conduct again was lowered to "needs improvement."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order that, notwithstanding evidence of poor judgment, as set above, the Respondent, Patricia Albritton, not be suspended for three days without pay. RECOMMENDED this 4th day of November, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1992.
The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
The Issue Whether the Respondent should be disciplined as alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent, Willie Vance, was employed as a lead custodian at Ponce de Leon Middle School in Dade County, Florida. Over the course of several years, starting as early as 1986, Respondent was counseled regarding the personnel rules and employment requirements for continued employment with the School Board. More specifically, Respondent was advised that absenteeism presented a hardship in the workplace and that he would not be permitted to adversely affect the normal operation of the school. In this regard, Respondent was referred to the Petitioner's Employee Assistance Program on at least two occasions. In May 1990, Respondent was cited for excessive absenteeism and reminded of the collective bargaining agreement provisions which outline when absences may be grounds for termination. In the years that followed, Respondent continued to have difficulty complying with the regulations regarding absences. He was cited for failing to adhere to the procedures for reporting absences. As lead custodian Respondent was responsible for opening the school at the beginning of each school day. On several occasions, school staff were left to wait for Respondent to arrive to open the school or turn off security alarm systems. Respondent's attendance problem increased and in 1995 he received verbal and written directives regarding his attendance and work performance. By January 1996, Respondent's conduct had not improved. Instead, his continued failure to abide by the directives regarding attendance and work performance led to an incident wherein Respondent used profane and vulgar language and threatened a member of the school staff with bodily harm. These acts occurred in the presence of students and staff members. On February 9, 1996, Respondent was directed to refrain from threatening and/or verbally abusing other staff members. More important, Respondent was advised that continued behavior would result in further disciplinary action. On February 29, 1996, Respondent was absent from work, failed to timely alert school staff that he would not be at work, and, as a result, the school did not open on time. On March 18, 1996, Respondent was absent from work without prior authorization and did not report his absence to school administrators. On March 19, 1996, Respondent failed to sign out on the payroll sheet as all employees had been directed. On March 20, 1996, Respondent failed to report to work without prior authorization from the school principal. On March 26, 1996, Respondent was issued a written warning that his continued failure to perform his assigned duties and repeated indifference to the directives regarding attendance would result in further disciplinary measures. On April 2, 1996, Respondent was advised that continued failure to follow directives would be considered insubordination. On April 11, 1996, Respondent failed to report for work, failed to give notice of his absence, and failed to open the school timely. Since no one knew Respondent would be absent, no administrator could cover for Respondent. As a result, on this date the school mail was not delivered (including employees' paychecks). On April 24, 1996, Respondent was notified that if his performance did not improve by the end of the 1995-96 school year, that a recommendation for disciplinary action would be made to the School Board by the principal. In May 1996, the principal was notified that Respondent had failed to follow through with the Employee Assistance Program's recommendations. Subsequently, Respondent's conduct deteriorated. On May 31, 1996, he made a threat to another staff member; on June 4, 1996, he had a verbal altercation with another custodian; on June 7, 1996, he was absent without prior approval; on July 9, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 17, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 22, 1996, he was absent from work without prior authorization; and on July 23, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time. On July 24, 1996, Respondent was issued a written warning again advising him that his continued failure to comply with procedures could not be tolerated. He was advised that his performance was unacceptable, that it was having a detrimental effect on his co-workers, and that continued failure would be considered neglect of duty and gross insubordination. On September 11, 1996, in the presence of students, Respondent was verbally abusive and threatening to an assistant principal. On September 25, 1996, Respondent had another altercation with a co-worker. Respondent threatened the employee by holding a gasoline container and suggesting he would pour gasoline over the worker and light a match. Despite additional warnings and conferences with Respondent, Respondent failed to abide by the directives from school administrators. The directives were reasonable in nature and related to the offensive and inappropriate behavior exhibited by Respondent. Nevertheless, Respondent did not improve. From October 1996 through January 6, 1997, Respondent continued to exhibit an indifference to the directives from school personnel. He continued to fail to report to work and, on January 6, 1997, did not report his absence. On February 5, 1997, the School Board took action to suspend Respondent from his employment with the school district and to initiate dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a Final Order sustaining the suspension without pay previously entered, and dismissing Respondent from his employment with the School Board. DONE AND ENTERED this 31st day of March, 1998, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998. COPIES FURNISHED: Dr. Roger C. Cuevas Superintendent Dade County Public Schools 1450 Northeast Second Avenue Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Willie Vance, pro se 3682 Grand Avenue, No. 3 Miami, Florida 33133
