The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences: Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness. Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences: Absences for illness must be documented by your treating physician and a written medical note presented to this principal upon your return to the site. Upon return to the worksite, you must provide an unconditional medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.) These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program. Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows: . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer. The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows: Involvement with the recommended program of therapy is to be monitored by district's referral agency. Acceptable attendance at the worksite must be maintained. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented. Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination." Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite: Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave. The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal." The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave. Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows: 3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . . Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract. DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.
The Issue Is Respondent guilty of immorality which impairs his effectiveness in the community sufficiently to justify his dismissal from employment with the Polk County School Board?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary and adult education in Polk County, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent Stephen Osthoff has been employed in the Polk County School District for 23 years. Respondent holds a continuing contract of employment with the Polk County School District. Mary Holland Park, located in Bartow, Polk County, Florida, is a city- owned facility with a playground, several picnic pavilions and a soccer field, ponds, and fishing areas, and is well used by the citizens of Bartow. Detective Stephen Peacock of the Bartow Police Department was conducting an undercover investigation in Mary Holland Park on January 19, 1996, in conjunction with the Polk County Sheriff's Department in response to reports made to the City of Bartow about certain activity in the park. On January 19, 1996, Detective William T. Young, was employed by the Polk County Sheriff's Department and assigned to the Vice Unit. On this date, Detective Young was conducting an undercover investigation in conjunction with the Bartow Police Department in response to reports made to the City of Bartow about certain activity at the park. On January 19, 1996, Respondent drove into Mary Holland Park in Bartow, Florida. Respondent exited his car and walked towards an area referred to as a nature trail. As the Respondent made his way to the nature trail he made eye contact with Detective Young. Based on Respondent's actions, Detective Young believed Respondent was implying that Young join him on the nature trail. As Respondent proceeded down the trail he stopped and sat down upon a limb that had fallen in the trail. Young stopped within inches of Respondent with Young's genital area level with Respondent's face. After engaging in small talk, Respondent asked Young what the chances were of Respondent "seeing it". Young clarified with Respondent that he wanted to see Young's "cock". Young responded, "Well I don't think so, not right here". Either Young or Respondent (Young was not sure which) suggested that they go around the corner which was the area where Young's car was parked. Young and Respondent walked up to Young's car where Young identified himself to Respondent as a police officer. Young arrested Respondent and charged him with soliciting another to commit a lewd act. During the book-in procedure at the City of Bartow Police Department, after being given his Miranda warning, Respondent stated that he recognized that he had a problem and would seek counseling. There is no evidence in the record of what became of Respondent in the criminal process after his arrest. From all accounts, Respondent is an excellent teacher. David Lauer, Principal at George Jenkins High School where Respondent taught until this incident, testified that Respondent was an excellent teacher in the classroom, a team player, the kind of teacher administrators like to have and was good for the kids. David Lauer opined that this incident would be detrimental to Respondent's effectiveness as a teacher at George Jenkins High School. Lauer's opinion is based on Respondent's arrest being reported in the Lakeland Ledger, a newspaper which is circulated in the community of George Jenkins High School, and that some twenty copies of the Lakeland Ledger are delivered to the George Jenkins High School for use by the teachers and students. There is no evidence that any copies of the Lakeland Ledger which carried the story of Respondent's arrest were delivered to the George Jenkins High School. Lauer's opinion was not supported by testimony from any teacher, student or other member of the George Jenkins High School community, to the effect that as a result of this incident Respondent's effectiveness as a teacher had been impaired at George Jenkins High School or any other school in Polk County. In fact, the testimony of the only teacher from George Jenkins High School to testify at the hearing, contradicted Lauer's testimony concerning impaired effectiveness. After an investigation was completed by Dale McDonald, the report was submitted to the Administrative Review Team which, after reviewing the reports of the incident, recommended to the Superintendent that Respondent's employment be terminated because the evidence indicated that Respondent's effectiveness as a teacher in Polk County had been impaired. There is nothing in the record to indicate that at the time the Review Team made its recommendation that the Team had any evidence from members of the community to support its recommendation that Respondent's effectiveness as a teacher in the community had been impaired. Apparently, the recommendation was based on the fact that the incident was reported in the Lakeland Ledger. The article appearing in the Tampa Tribune did not appear until February 15, 1996, which was after the Team made its recommendation to the Superintendent and after the Board terminated Respondent's employment. Furthermore, there was no evidence that the Tribune article was widely circulated in the community of George Jenkins High School or generally in Polk County. Based on the Review Team's recommendation, the Superintendent concluded that Respondent's actions had impaired his ability to effectively serve the community of Polk County and recommended to the Board that Respondent's employment be terminated. The Board accepted the Superintendent's recommendation and on February 13, 1996, voted to terminate Respondent's employment. There is no evidence in the record from any member of the community unrelated to Petitioner to support the Petitioner's conclusion that Respondent's effectiveness as a teacher in the community has been impaired. On the other hand, several members of the community, mostly fellow teachers, believe that Respondent was an excellent teacher up until the incident and would continue to be an excellent teacher if reinstated. Furthermore, these members of the community believe that Respondent's effectiveness as a teacher in the community has not been impaired, and if reinstated he would continue to be an asset to the school system and to the community Respondent's conduct was not sufficiently notorious so as to bring the Respondent or the education profession into public disgrace or disrespect, and thereby impair the Respondent's service in the community of Polk County, notwithstanding the testimony of David Lauer and Dennis Dunn to the contrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay. RECOMMENDED this 17th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1996. COPIES FURNISHED: Honorable John A. Stewart Superintendent of Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dabney L. Conner, Esquire 150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
The Issue As to Case 12-2570TTS, whether the Broward County School Board (School Board) has good cause to suspend the employment of Sarena Stewart (Respondent), a classroom teacher, for three days as alleged in the Administrative Complaint filed by the School Board on July 30, 2012. As to Case 12-4137TTS, whether the School Board has good cause to terminate Respondent's employment, as alleged in the Administrative Complaint filed by the School Board on December 21, 2012.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. New River is a public school in Broward County, Florida. During the 2011-2012 school year, Respondent was employed as a math teacher at New River pursuant to a professional service contract. Prior to the 2011-2012 school year, Respondent was assigned to teach math at McArthur High School (McArthur). Respondent has been employed by the School Board since 2006. Respondent received satisfactory performance evaluations for each school year of her employment prior to the 2011-2012 school year. During the 2011-2012 school year, Melinda Wessinger was the principal of New River, and Taina Sierra was an assistant principal. Ms. Sierra's administrative responsibilities included oversight of the math department. The 2011-2012 school year was Ms. Wessinger's first year at New River. Ms. Sierra has been at New River for six school years. CASE 12-2570TTS For the 2011-2012 school year, August 22, 2011, was the first day of school for students. Teachers were required to report to work on August 15, 2011, for a week of preplanning. During the preplanning week, teachers attended faculty meetings and readied their classrooms for the coming school year. On August 15, 2011, the work hours for the preplanning week and for the upcoming school year were discussed at a faculty meeting. Also discussed was the sign-in and sign-out requirements for the preplanning week. Teachers were required to sign-in when they arrived at school and sign-out when they left the facility for any reason. On August 16, 2011, Respondent asked for and received permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve certain materials she had left at her former school. Respondent did not follow the sign-out procedure when she left New River. On either August 16 or 17, 2011, Respondent again asked for, and received, permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve other materials. Respondent did not follow the sign-out procedure when she left New River. One day during the preplanning week, Respondent was tardy arriving to school. On August 19, 2011, the last day of preplanning, Ms. Sierra had a conference with Respondent during which Ms. Sierra told Respondent to adhere to the sign-in and sign-out procedures and to arrive at work on time. Ms. Sierra did not consider that conference to be disciplinary. After this conference, Respondent knew, or should have known, New River's leave policies and its sign-out policy. Respondent had ready access to the faculty handbook through a link on the CAB (Communication Across Broward) system. When school started on August 22, 2011, teachers did not have to sign-in when they arrived at school. However, they were required to sign-out if they left school early. The New River faculty handbook contained the following as to signing out before the end of the school day: All personnel must get permission from the grade level assistant principal before leaving campus for any reason. This includes school related in-service, county meetings, school visits, etc. To leave campus for any personal reason, permission must be obtained from an assistant principal in advance. An emergency sign in/out sheet will be available at Office Manager's desk. If you are leaving during the day for personal reasons/doctor's appointments, it is your responsibility to obtain coverage for your classes. Please notify your administrator in the front office, via CBA, the teacher(s) who will cover your classes. The time you take off will be deducted from your accumulated personal sick or personal leave time. On September 16, 2011, Ms. Sierra met with Respondent to discuss complaints from parents and students. Ms. Sierra directed Respondent to cease and desist any inappropriate behavior toward students as a violation of the code of ethics and that she was to treat students with respect at all times. On October 28, 2011, Ms. Sierra had a pre-disciplinary conference with Respondent based on Respondent's continued failure to follow directives, including directives to comply with all processes and procedures regarding class coverage, absences, and embarrassing and/or disparaging students. As a result of that meeting, Ms. Sierra recommended that Respondent be suspended for one day without pay. That recommendation was approved by the School Board on December 6, 2011. Respondent served that one-day suspension without requesting a formal administrative hearing to challenge that action. Article 23 of the CBA pertains to “Leaves,” including sick leave and personal leave. Section A.2 of Article 23 provides that employees shall be granted up to six days each school year for personal reasons. That provision also provides that personal reasons leave shall not be granted on the day preceding or following a holiday. On November 30, 2011, Respondent put in for personal leave beginning on December 14 through 16, 2011. These dates immediately preceded a school holiday (school winter break was December 19 through 30). Ms. Sierra and Ms. Wessinger explained the CBA provision to Respondent and told her that she could not have personal leave. Respondent then explained that she was having a medical procedure performed.1/ They told her to change her leave from personal leave to medical leave. Ms. Sierra and Ms. Wessinger also told her that they needed a doctor's note excusing the absence. There was no particular form required for the doctor's note. On January 3, 2012, Ms. Sierra sent a follow-up email to Respondent informing her that she had not changed the leave request from personal leave to sick leave as she had been directed. Respondent responded that she had changed the leave request and stated that the change could be verified through the School Board's “smartfind” computer program. Respondent's representation to Ms. Sierra was false. Respondent had not changed her leave request.2/ In addition to her planned absences from December 14 through 16, 2011, Respondent called in sick on December 12 and 13, 2011.3/ On these two days, Respondent called into the smartfind system at 8:00 a.m. and 8:21 a.m., respectively. Despite having been repeatedly told to comply with policies and procedures relating to absences, these calls were not in compliance with New River's faculty handbook. A teacher who called in sick after 6:00 a.m. was required to call the substitute coordinator's (Nicole Armstrong) direct line, which gives a caller her voicemail should the coordinator not be at the school or at her desk. Respondent's failure to comply with the call-in procedure resulted in Ms. Armstrong’s having to scramble with very little time to find coverage for Respondent's classes on December 12 and 13, 2011. Teachers at New River are required to leave emergency lesson plans with Ms. Armstrong in case of unplanned absences. Respondent had provided emergency plans earlier in the year, but as of December 12 and 13, 2011, those emergency plans had been used and not replaced. Consequently, there were no emergency plans for December 12 and 13. Moreover, Respondent did not comply with the procedures for leaving lesson plans for planned absences for her absences on December 14 through 16. Prior to January 5, 2012, Respondent had brought in two notes addressing her need to be absent December 12-16, 2011, for medical reasons. Both notes were vague. On January 5, Ms. Wessinger and Ms. Sierrra met with Respondent to discuss with her the need for a clear doctor's note. During this meeting, they repeated that Respondent was to follow all policies, procedures, and directives given by the New River administration. Later that day, Respondent left New River before the end of the school day without following the sign-out policy. Respondent left early to get an acceptable note from her doctor, which she brought in the next day. Notwithstanding her need to obtain a doctor's note, Respondent failed to comply with the directives given her by Ms. Wessinger and Ms. Sierra earlier that day. Thereafter, Ms. Sierra recommended that Respondent be suspended without pay for three days for gross insubordination. That recommendation underpins Case No. 12-2570TTS. CASE 12-4137TTS On January 23, 2012, Respondent confiscated a cell phone from N.D., a male student, during her fifth-period class. Respondent placed the cell phone in her desk drawer with the intention of turning the cell phone in to the office after class. At the end of that class, N.D. removed the cell phone from Respondent’s desk without permission and reported to his sixth-period language arts class taught by Tommy Moore. After the start of sixth period, Respondent realized that the cell phone had been removed from her desk drawer. Respondent went to Mr. Moore’s class. There is a conflict in the evidence as to what occurred next. The greater weight of the credible evidence established that Respondent knocked on the door to Mr. Moore’s classroom. Mr. Moore opened the door for Respondent. Respondent entered the classroom where she remained by the doorway. Respondent tried to get N.D. to come to her, but he refused to do so. Respondent asked N.D. in a loud voice to give her the cell phone. A loud argument broke out between Respondent and N.D. Another male student joined in the argument. Respondent and the students engaged in name calling with the terms “bitch” and “bum” being used. Petitioner failed to establish that Respondent used either term. Respondent retrieved the cell phone and left Mr. Moore’s classroom. The argument lasted at least ten minutes and completely disrupted Mr. Moore’s class. Mr. Moore was unable to regain control of his class and was unable to complete the lesson he had started before Respondent came to his classroom. Mr. Moore did not try to stop the argument between Respondent and the two students. N.D. did not appear to be embarrassed or upset because of the argument he had with Respondent. None of the students appeared to be frightened or upset during the argument. After leaving Mr. Moore’s class, Respondent went to a math department meeting chaired by Ms. Stephanie Tegreeny. Ms. Tegreeny had completed her presentation to the other math teachers by the time Respondent arrived. Ms. Tegreeny repeated her presentation for Respondent. After that meeting, Respondent took N.D.’s cell phone to the office. Prior to the start of school on the morning of January 24, 2012, Robin Terrill, a school volunteer, and Mr. Moore were in the media center making copies. Respondent came into the media center and in a loud, rude, and vulgar fashion criticized the school administration. Respondent described the school administration in profane terms, including the “f” word. There was a conflict in the evidence as to whether students overheard Respondent’s rant. The greater weight of the credible evidence established that students were present in an area that they could have overheard Respondent. Later in the morning of January 24, 2012, Mr. Moore contacted Ms. Sierra to inform her of Respondent’s conduct in his classroom the day before. Later that day Ms. Sierra asked Respondent about her conduct in Mr. Moore’s classroom, and she discussed with Respondent what had been reported to her. Prior to the start of school on January 25, 2012, Mr. Moore was walking down the stairs from his classroom to the main level with a student he had been tutoring. Respondent confronted Mr. Moore about his report to the administration of the incident in his classroom on January 23. This confrontation was clearly unwelcomed by Mr. Moore, who testified that he felt “agitated,” “stressed,” and “uncomfortable.” After that meeting on the stairs, Respondent stopped Mr. Moore again to ask what he knew about the administration’s investigation into the incident in his classroom. Mr. Moore thereafter altered his schedule to avoid Respondent. The School Board and the teacher’s union have entered into a CBA applicable to this proceeding. Sections A.1.a. and of Article 18 of the CBA provides for progressive discipline, in part, as follows: Progressive Discipline: Any discipline of an employee shall be for just cause. The parties agree that the concept of just cause embodies the principles of progressive discipline under the circumstances. Disciplinary procedures may include but are not limited to: verbal/written reprimand, suspension, demotion and termination. . . . The School Board’s Policy 4.9 provides certain “Disciplinary Guidelines” and is part of the record of this proceeding as Respondent’s Exhibit 2. Those guidelines are hereby incorporated in this Recommended Order by reference. The School Board’s Policy 5.9 prohibits bullying, which is defined by the policy as follows: “Bullying” means systematically and chronically inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as: unwanted purposeful written, verbal, nonverbal, or physical behavior, including but not limited to any threatening, insulting, or dehumanizing gesture, by an adult or student, that has the potential to create an intimidating, hostile, or offensive educational environment or cause long term damage; cause discomfort or humiliation; or unreasonably interfere with the individual’s school performance or participation, is carried out repeatedly and is often characterized by an imbalance of power. Bullying may involve, but is not limited to: unwanted teasing threatening intimidating stalking cyberstalking cyberbullying physical violence theft sexual, religious, or racial harassment public humiliation destruction of school or personal property social exclusion, including incitement and/or coercion rumor or spreading of falsehoods
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: As to Case 12-2570TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of three school days. As to Case 12-4137TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of 30 school days. DONE AND ENTERED this 8th day of August, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of August, 2013.
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
The Issue By this Petition, the School Administration of Lee County, Florida, seeks to expel Ronald Dale Slayback on charges that on November 4, 1975, while a student at Riverdale High School, he engaged in throwing chairs at other students. Although the witness who observed Slayback throw chairs did not appear and testify inasmuch as his presence was required at the school at the time of the hearing, the principal of the school, James Middlebrooks, Jr., testified that at the preliminary hearing Slayback acknowledged that he had thrown chairs during the incident on November 4, 1975. The chairs involved in these incidents were chairs with metal legs and backs, and hard plastic seats and backs. They could cause serious injury to anyone hit by them. At the time of the incident some 400 to 600 students were passing through the common area inside the building during a class change, and, but for the prompt and effective action of school officials, a race riot could have resulted. Ronald Slayback testified in his own behalf. As Slayback was walking across the common area he was hit in the back with a chair. He also stated he was hit a second time as he ran toward Assistant Principal Hadley. When the chair was thrown at him he reacted by throwing another chair at his assailant, Ronald Tape. He indicated that part of his chair throwing was in self defense and the other part was in retribution for having been hit with a chair. Slayback has caused few disciplinary problems at Riverside. The only other problem involved his overreaction the year before when his brother was arrested. The brother was found not guilty of the offense for which he was arrested. In view of Ronald Slayback's prior disciplinary record, or lack thereof, expulsion in this case does not appear warranted. From the foregoing it is concluded that Ronald Slayback is guilty of throwing chairs at other students as alleged. This is a serious offense and can cause injury to pupils in the school. All students were advised that chair throwing would not be tolerated and, if committed, would result in expulsion. It is therefore, RECOMMENDED that Ronald Slayback be suspended for 30 days. DONE and ORDERED this 23rd day of December, 1975 in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1975. COPIES FURNISHED: Harry Blair, Esquire Post Office Box 1467 Ft. Myers, Florida 33902 Ronald Slayback Route 4, Carta Hana Avenue Ft. Myers, Florida 33904
