The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue Should Petitioner discipline Respondent for violation of its School Board Policy File GBEB: Drug-Free Workplace? In particular, should Respondent be disciplined for his conduct that allegedly occurred on or about June 26, 1997, in which the Respondent was said to be in possession of alcohol he was serving to students on school board property?
Findings Of Fact Petitioner is a school board as defined in Fla. Const. art. IX, Section 4, and Section 230.01, Florida Statutes. At times relevant to this case, Respondent was employed by Petitioner as an instructor in the Culinary Arts Department in the St. Augustine Technical Center, a post-secondary vocational center located in St. Johns County, Florida. In particular, Petitioner taught a class entitled Regional Italian Cooking at the school. Respondent was aware of Petitioner's Drug-Free Workplace Policy, as that policy prohibited the use, or possession of alcohol on the property where the St. Augustine Technical Center is located. Respondent was also aware that alcohol could not be used as part of any school activity. Respondent was aware that a violation of these strict prohibitions could subject Respondent to disciplinary sanctions, including discharge from his employment. The exception to the prohibition against the use or possession of alcohol on school property, was that alcohol could be used in preparing food, in contrast to the use of alcoholic beverages for consumption in the ordinary sense. On June 26, 1997, Respondent taught the Regional Italian Cooking class at the St. Augustine Technical Center. On that evening he allowed the brother of one of the class members to bring a bottle of red and a bottle of white wine into the class. Both bottles of wine contained alcohol. The brother was affiliated with the Sans Sebastian Winery, a local winery in St. Augustine. Respondent opened and used some of the red wine in preparing a meat course as part of the class activities. The use of the wine in the preparation of that dish was in keeping with the policy to allow the use of alcoholic beverages in food preparation. Inconsistent with that policy, Respondent placed the remaining contents of the bottle of red wine, and the white wine, on the dinner table where Respondent and class members were dining as part of class activities. Respondent then poured wine that had been brought to the class by the guest from Sans Sebastian Winery. Respondent personally consumed the wine and allowed class members to consume the wine. The class members were persons under twenty-one (21) years of age.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner enter a Final Order finding that Respondent committed misconduct in office by violating Petitioner's Drug-Free Workplace Policy, and discharging Respondent from his employment with Petitioner. DONE AND ENTERED this 27th day of February, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of February, 1998. COPIES FURNISHED: Robert Lloyd, Esquire 150 Magnolia Avenue Daytona Beach, Florida 32115-2491 David Brooks Kundin, Esquire Post Office Box 430 Tallahassee, Florida 32302 Clayton Wilcox Director of Personnel St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084-3833 Hugh Balboni Superintendent of Schools St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084-3833
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Respondent, Richard P. Rost, was employed by the Board as the principal at Rock Lake Middle School. During the week of October 7 through 11, 1991, the Seminole County School District was to perform an FTE survey in accordance with state-mandated guidelines. The purpose of the survey was to perform a head count of the students enrolled in the public school system and to designate an FTE value according to the type of student. The results of the survey were utilized by the state to appropriately distribute funding among the school districts. Students enrolled in special classes receive a higher weighted FTE than those enrolled in regular classes. Teachers are required to execute rolls and to certify the names of the students enrolled in their classes for each period of the surveyed school day. The pertinent survey date for Rock Lake Middle School (Rock Lake) was October 11, 1991. On that date teachers at Rock Lake filled out FTE forms that listed the students enrolled in their classes for each period of the school day. On the morning of October 11, 1991, Respondent administratively reassigned thirteen students from their regular class assignments to the in- school suspension program at Rock Lake. None of the students so assigned met the criteria for placement into the in-school suspension program. Respondent placed the students into the in-school suspension program so that when the FTE survey was performed, the records would show that thirteen students were enrolled in that section. The FTE weight for a student enrolled in an in-school suspension program is greater than the FTE weight for physical education. Several of the students assigned to the in-school suspension program on October 11, 1991, were pulled from their regular physical education classes. Respondent has admitted that he made the class changes on the survey date but maintains he was authorized to do so since the students would receive an educational benefit from the placement, and since the placement might be considered a resource period for the students. Further, Respondent maintains that Willie Holt, the director of middle school education, had indicated that it was mandatory for Rock Lake to have fifteen students in its tutorial program and thirteen students in the dropout prevention program. In order to be placed in the in-school suspension program, a student must have a referral for misconduct that would normally warrant an out-of-school suspension. Additionally, upon completion of the referral form, the student and his parents must complete an in-school suspension contract acknowledging and accepting the placement. No paperwork was completed for the students administratively assigned by Respondent on October 11, 1991. Because students were erroneously placed in the in-school suspension program, they were surveyed based upon the FTE weighted rate of 1.707. Accordingly, unless caught by the state through an audit, or voluntarily disclosed through an amended FTE report, Seminole County Schools would receive a higher level of funding than it was entitled. While Respondent could not personally gain from the FTE report and increased funding, his actions placed the Board in a position of liability for the improper survey results. More critical to this case, however, is the fact that Respondent has never conceded that he made a mistake in placing the students in the in-school suspension program. Respondent directed his staff to respond to the inquiries about the placements even though he knew, or should have known, that the students placed in the in-school suspension program did not meet the criteria for same. Specifically, Ms. Schalls, the guidance director, wrote a letter explaining the assignments for Respondent's signature as a result of the inquiries related to the placements. Because Respondent directed him to accept the students into the class, Mr. Deyling, the in-school suspension teacher, incorrectly completed the FTE forms on the survey date. Because Respondent directed her to pull students from classes to send them to the in-school suspension class, Ms. Shalls, the guidance department director, executed passes for the thirteen students. To her credit, when questioned regarding the appropriate paperwork to support the assignment, Ms. Shalls would not complete the forms. The guidance staff had never, prior to this incident, placed students in the in-school suspension class. Respondent did not direct any school personnel to falsify school records. There was no drop out prevention program in effect at Rock Lake on October 11, 1991, which would have allowed Respondent to administratively assign the students to in-school suspension. The Respondent disregarded the rights of students by placing them in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent failed to exercise good judgment in placing the students in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent's effectiveness has been seriously impaired by the acts described above. Such acts constitute misconduct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Seminole County, Florida enter a final order finding the Respondent guilty of misconduct in office and terminating his employment as a principal at Rock Lake. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. APPENDIX TO CASE NO. 92-1353 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 10, 12 through 17, 20, 22, 23, 25, 27, 28, 30 through 33, 35, 40, 41, and 44 are accepted. Paragraph 11 is accepted but is irrelevant. Paragraph 18 is rejected as contrary to the weight of the evidence. The first sentence of paragraph 19 is accepted; the remainder is rejected as contrary to the record. Rost maintained he had the authority to make the placements complained of; in truth, he knew or should have known such placements were inappropriate. Paragraph 21 is rejected as argument. Paragraph 24 is rejected as irrelevant. Paragraph 26 is rejected as hearsay or irrelevant. Paragraph 29 is rejected as argument. With regard to paragraphs 34, 36, and 37, it is accepted that Respondent placed the students in the program inappropriately; otherwise rejected as repetitive, unnecessary or irrelevant. Paragraphs 38 and 39 are rejected as contrary to the weight of the evidence. Respondent requested that an explanation be drafted, he did not request any employee to falsify records or misrepresent what had occurred. Paragraphs 42 and 43 are rejected as contrary to the weight of the- evidence in that Respondent did not direct employees to violate the law. He directed the guidance team to choose students who might benefit from the decisions film to be placed in the class. That such action constituted error is based upon Respondent's indifference to the criteria for in school suspension and his goal of achieving a number in that program for FTE purposes. With the addition of the phrase "or should have known" after the word "knew" paragraph 45 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1, 24, 25, 41, 70, 71, 74, and 80 are accepted. Paragraphs 2 through 10 are rejected as argument, contrary to the weight of credible evidence, or irrelevant. With regard to paragraph 11, it is accepted that Respondent would not financially gain personally from the FTE survey; however, that he would seek to file a false survey suggests that he perceived some benefit from doing so. Otherwise, when questioned initially about the matter he would have confessed error and acted to correct the problem. Paragraphs 12 and 13 are rejected as contrary to the weight of the credible evidence except as to the statement that Mr. Evans was absent on the survey date. Paragraph 14 is rejected as recitation of testimony not accepted as an ultimate fact of this case. Paragraphs 15 through 18 are rejected as contrary to the weight of the evidence. Paragraphs 19 through 23 are accepted only to the extent that they suggest Respondent did not direct employees to after-the-fact fabricate records to justify the placement of the students; otherwise, rejected as recitation of testimony, irrelevant, argument or contrary to the weight of the credible evidence. Paragraphs 26 through 38 are rejected as irrelevant, contrary to the weight of credible evidence, repetitive, or argument. The first sentence of paragraph 39 is accepted; otherwise rejected as irrelevant or recitation of testimony. Paragraphs 42 through 69 are rejected as irrelevant, recitation of testimony not accepted as ultimate fact, contrary to the weight of credible evidence, argument, or unnecessary to the resolution of the issues of this case. Respondent had, prior to the incident complained of, enjoyed a good reputation in the school community and Rock Lake had had no major problems. Had Respondent acted differently in this instance, these proceedings would not have been required as his judgment would not have been made suspect. Paragraphs 72 and 73 are rejected as contrary to the weight of credible evidence. Paragraphs 75 through 79 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 81 through 90 are rejected as contrary to the weight of the credible evidence or argument. COPIES FURNISHED TO: Ned N. Julian, Jr. STENSTROM, McINTOSH, JULIAN, COLBERT, WHIGHAM & SIMMONS, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Joseph A. Rosier P.O. Box 95017 Lake Mary, Florida 32795 Dr. Paul Hagerty Superintendent of Schools Seminole County School Board 1211 Mellonville Avenue Sanford, Florida 32771
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 Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue The issues in this case are whether just cause exists to discipline Respondent based on allegations that he used inappropriate language when talking to students, in violation of the Principles of Professional Conduct, and, if so, what discipline should be imposed.
Findings Of Fact Woodard has worked in the Duval County public school system since 2002. There was no evidence presented of any prior incidents of inappropriate behavior, or of discipline being imposed upon Woodard by the School Board. During the 2014-2015 school year, Woodard was employed by Petitioner as an In-School Suspension (“ISSP”) teacher at Northwestern. The ISSP teacher is an instructional and leadership position, and the ISSP teacher is supposed to set an example for students and help them modify their behavior. The ISSP class was created to allow students who engage in disciplinary misconduct to remain in school rather than being removed from the classroom environment. The referral of students to ISSP can come from administrators, teachers, or any other employee who observes student misconduct. Although Woodard taught the ISSP class, he did not discipline students or assign them to ISSP, and he did not give students grades. During the 2014-2015 school year at Northwestern, Woodard was assigned to the gym in the mornings, where sixth- graders were directed to go after eating breakfast in the cafeteria, to wait for their teachers to pick them up and take them to class. On January 23, 2014, the Duval County School District’s (“District”) Office of Professional Standards opened an investigation of allegations that Woodard used inappropriate communications with and/or in the presence of students. The investigation, which was conducted by Investigator Reginald Johnson in the District’s Office of Professional Standards, sustained the allegations. On September 29, 2015, Woodard received a Step III Progressive Discipline – Reprimand and Suspension Without Pay (Revised 9/29/15) for conduct the District alleged violated the Florida Code of Ethics, rules 6A-10.080(2) and 6A-10.080(3) and the Principles of Professional Conduct, rule 6A-10.081(3)(a). The Step III Progressive Discipline alleged that Woodard used the term D.A.N. or DAN when talking to or referring to students at Northwestern, which the District alleged was an acronym for “dumb ass niggers.” In his defense, Woodard testified that in mentoring students, he shared stories from his childhood and his own life in order to be more relatable to students. According to Woodard, he used the story of his childhood friend Dan to impress upon students that it is not where you start, it is where you end up. Woodard’s friend Dan used to skip school, get to school late, fight, and disrespect authority, and Woodard urged his students not to be a Dan. As discussed below, Woodard’s testimony in this regard is not credible. Student D.M. testified that Woodard called students D.A.N.s in the gym and in ISSP class when the students were either acting up or in trouble. D.M. also testified Woodard wrote the word D.A.N. on the board in ISSP class with periods in the word, and the word stayed on the board in ISSP class. D.M. never heard Woodard tell a story about a friend named Dan. Student H.N.J. was in ISSP class with about seven other students when Woodard told them that D.A.N. meant “dumb ass niggers.” H.N.J. said Woodard called students D.A.N.s when they were acting up and disrespectful, and that Woodard gave two meanings of the word D.A.N.-–“dumb and nobody” and “dumb ass niggers.” H.N.J. does not remember Woodard relating a story about a friend named Dan. Woodard’s use of the word D.A.N. toward students made H.N.J. feel put down and “sad and mad at the same time,” and the fact that Woodard was a teacher made this worse. Student B.S. stated Woodard yelled at students and called them D.A.N.s in the gym whenever they were talking loud or would not listen. B.S. does not recall Woodard telling a story about a friend named Dan. B.S. learned that D.A.N. means “dumb ass niggers” from A.W., another student. Woodard’s reference to students as D.A.N.s made B.S. feel “sorry and mad,” and she began crying on the witness stand. Student K.H. testified that Woodard called her a D.A.N. when she stepped out of line in the gym and that he called other students D.A.N.s when they were misbehaving, fighting, or being loud. K.H.’s friend told her that D.A.N. means “dumb ass nigger.” K.H. never heard Woodard tell a story about a friend named Dan. K.H. and her brother, student D.H., complained to their mother about Woodard calling students D.A.N.s. The mother of K.H. and D.H. contacted Northwestern and later the media after the school did not do anything about the complaint. Woodard’s use of the term D.A.N. made K.H. “feel disrespected and low life because it’s not supposed to be used towards children” and because Woodard is a teacher and the same race as K.H. During the 2014-2015 school year, student D.H., was in the seventh grade at Northwestern. D.H. heard his friends in math class calling each other D.A.N.s. So he asked one of his friends what D.A.N. meant. D.H.’s friend (a student named “J”) told D.H. that D.A.N. meant “dumb ass niggers” and that Woodard called kids that word. D.H. was bothered that someone of his own race was calling him that, and also that it came from a teacher. The students’ descriptions of Woodard’s comments and behavior were fairly consistent. The things they reported hearing and observing were very similar to contemporaneously written statements from them and other students. The alleged remarks were similar in nature to one another but not exactly the same, so the comments did not seem rehearsed or planned. The students were very direct and unwavering when testifying at final hearing. The testimony of H.N.J. was particularly persuasive and clearly established that Woodard intended to use the term D.A.N. as a derogatory epithet: either “dumb and nobody”; or “dumb ass niggers.” Significantly, none of the students who appeared at hearing would have had a motive to testify falsely. As noted, Woodard did not assign grades to any of these students or assign them to ISSP, so none would have had an axe to grind with Woodard. The testimony of the students is credible. Teacher Linda Raggins testified that she heard Woodard tell students in the gym “to not act like Dan.” Toward the end of the school year, Raggins asked Woodard “who is Dan?” Woodard gave Raggins two explanations, the first of which she did not recall. The second explanation Woodard gave Raggins was that “some people use Dan to mean dumb ass niggers, but that’s not how I – that’s not what I’m talking about.” Raggins did not recall Woodard providing any other meaning for the word D.A.N. Raggins is a union representative and first agreed to provide a written statement, but then declined to provide a statement on the advice of counsel. Raggins did not tell Investigator Johnson that Woodard told a story about someone named Dan. Former teacher Jason Ludban heard Woodard use the term D.A.N. a handful of times. Ludban said that Woodard used the term D.A.N. “openly and loudly for all to hear,” which made Ludban believe it was acceptable. Ludban learned from a student that D.A.N. meant “dumb ass niggers.” Ludban never heard Woodard tell a story about a friend named Dan. If Ludban believed that Woodard was using the term D.A.N. to mean “dumb ass niggers,” Ludban would have had a duty to report it. Woodard gave Investigator Johnson the names of three additional student witnesses, whom Johnson interviewed. One of the students confirmed that Woodard wrote the word “D.A.N.” with periods on the board in ISSP class. Two of the students told Johnson that Woodard told them the story of a friend named Dan, but this occurred about two weeks prior to the date Johnson interviewed them, after the allegations were reported in the media and when Woodard was already facing discipline. Despite Woodard’s claim that Dan was a real person, Investigator Johnson does not recall Woodard telling him the last name of Dan or giving him any contact information for “Dan.” Johnson would have interviewed Dan if Woodard had provided that information. Woodard also did not provide Investigator Johnson with the names of any adults at Northwestern to whom Woodard told the Dan story. None of the witnesses Investigator Johnson interviewed--students or adults-- stated that Woodard told them a story about a friend named Dan. It is within management’s discretion to skip a step of progressive discipline if the conduct is severe. Assistant Superintendent Sonita Young recommended Step III discipline against Woodard because he was in a position of authority and his role was to provide support to students in terms of behavior modification, but Woodard used derogatory language that was offensive toward students. In deciding whether discipline is warranted, the District looks at the totality of the circumstances, including the number of times an incident occurred, how many witnesses there were to the incident, the severity of the incident, whether harm occurred to the child’s physical or mental well-being, whether the employee has been previously disciplined for the same conduct, and whether the employee acknowledged his behavior and is willing to modify his behavior. According to Assistant Superintendent Young, the factors supporting the Step III discipline were that Woodard said the derogatory word D.A.N. to multiple students, the students were middle school students, the student population was fragile and of very low socioeconomic status, and the conduct was repeated over a period of time rather than a singular incident. The fact that this language was used by a teacher, a person in a position of authority whom students have the right to feel “safe” around, were additional factors supporting the discipline. Young believes that Woodard’s use of the word D.A.N. toward or around students showed poor judgment and was damaging to them. Respondent called various character and fact witnesses (Jasmine Daniels, Tiffany Thomas, Tabitha Johnson, Pastor Fredrick Newbill, Niger Lambey, Ricky Stanford, and Daniel Drayton) who testified that Woodard told the story of his friend Dan at a church youth group, in his sermons, or that they knew the story from growing up with Woodard. However, none of the witnesses testified that they heard Woodard tell the Dan story to District students or in a District classroom. Pastor Newbill testified that in his community, D.A.N. has been used as a racial epithet for “dumb ass niggers” for at least the last 25 years. Dr. Arvin Johnson, the former principal of Northwestern, received a complaint about Woodard from a parent in May 2015, near the end of the 2014-2015 school year. Dr. Johnson, who is a friend of Woodard, heard Woodard use the term D.A.N. with students once or twice, but he never heard Woodard tell students a story about a friend named Dan. Although Dr. Johnson has known or worked with Woodard for approximately 12 years, the first time Woodard told Dr. Johnson the story of a friend named Dan was in connection with the parent’s complaint against Woodard in May 2015. Although Woodard has been employed with the District since 2002, he admitted that he did not tell the Dan story to students during the first 12 years of his employment. Woodard did not begin telling the Dan story to District students until the 2014-2015 school year. After not speaking to Daniel Drayton for several years, Woodard called Drayton in 2015 to remind him of the Dan story. Woodard stated that if he knew there was a negative interpretation of D.A.N. he would not have used the term, but his explanation to Ms. Raggins shows that he knew that a racially derogatory meaning of the word D.A.N. existed. Woodard claims that the students lied about him using D.A.N. as an acronym for “dumb ass niggers,” but he could not offer an explanation as to why students, whom he claims “loved” him, and were excited to attend his class, would lie about him. The greater weight of the evidence supports the contention that Woodard used the term D.A.N. in the presence of his ISSP students as a derogatory racial epithet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, rescinding its suspension of the employment of Ernest Woodard and, instead, issuing a written reprimand. DONE AND ENTERED this 30th day of November, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2016.
Findings Of Fact Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication. These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that, Any further indiscretion, however, such as public drunkeness or drinking while on the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act. May 1980 Absence During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion. April 14, 1981 Arrest During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested. July 21, 1981 Arrest At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers. Spring 1981 Absences According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem. Effectiveness Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism. DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
The Issue The issue is whether Petitioner has just cause to place Respondent, a classroom teacher, on administrative leave without pay from November 20, 2013, through the remainder of the 2013- 2014 school year due to Respondent’s excessive absenteeism, as alleged in the December 19, 2013, Statement of Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at PSLHS, a public school in St. Lucie County, Florida. Respondent has been employed by the District for approximately 20 years. Respondent has a professional services contract pursuant to section 1012.33. As a classroom teacher, Respondent is charged with instructing high school students. Regular attendance is considered by Petitioner to be an essential function of the position of classroom teacher. Pursuant to Board Policy 6.549(1)(a), Respondent was entitled to four days of sick leave as of the first day of employment of each school year and thereafter earned one sick day for each month of employment, for a maximum of ten sick days per school year. 2012-2013 School Year During the 2012-2013 fiscal year, Respondent was assigned to teach intensive math classes to students who struggle to pass required state exams required for graduation. Hargadine, in coordination with Petitioner’s Human Resources Department, directed Assistant Principal April Rogers (Rogers) to meet with Respondent on October 2, 2012, to address Respondent’s pattern of absenteeism and the impact it was having on students, and to explore the possibility of accommodations if his frequent absences were caused by a health condition. At least one student asked to be removed from Respondent’s class due to the frequency of Respondent’s absences. As directed, on October 2, 2012, Rogers met with Respondent and discussed Petitioner’s concerns that Respondent’s absences resulted in his students missing math instruction for 39 percent of their scheduled classes. Respondent was notified that he had already exhausted his available sick leave and he had not properly filled out leave requests in a timely manner. During this meeting, Respondent acknowledged that his absences had a negative impact on students. This conference was memorialized in a Summary of Conference dated October 2, 2012, issued to Respondent from Rogers. After the October 2, 2012, meeting, Respondent was also absent on October 16 through 19, 2012. On October 23, 2012, Rogers issued a Letter of Concern to Respondent detailing his continued excessive absenteeism and failure to timely request leave. The letter advised that Respondent’s absenteeism amounted to 17 of 42 instructional days and equated to 40 percent of lost instructional time for Respondent’s students. This letter reiterated that Respondent’s absences directly affect his students’ educational success. In addition to Respondent disrupting the continuity of the classroom by failing to attend work, Respondent also failed to supply adequate lesson plans and/or provide for student instruction while he took unapproved leave. On several occasions, Hargadine or her assistant principal had to create or add to the lesson plans to enable a substitute to teach Respondent’s classes. Respondent’s absenteeism and lack of proper notice of his absences resulted in his students being “taught” by individuals who did not have a college degree in mathematics, or even education, as some of these individuals were substitutes (who only need a high school diploma), para-educators, and even clerical workers. When staff members were required to provide coverage for Respondent’s classes, it negatively impacted both students and co-workers. For example, if a clerical worker or para-educator was called to provide coverage for Respondent’s classes, their own work would have to wait and they would not be able to complete their own specific job duties in order to ensure coverage for Respondent’s students. After receiving the October 23, 2012, Letter of Concern, Respondent was also absent on October 31, November 1, November 2, November 5, and November 6, 2012. As the assistant superintendent for Human Resources, Ranew assists site-based administrators (principals and assistant principals) concerning staff discipline and adherence to policies and procedures. Rogers requested Ranew’s assistance in addressing Respondent’s absenteeism. On November 6, 2012, Ranew issued a letter to Respondent regarding his excessive absenteeism. This letter from Ranew reminded Respondent of the importance of him submitting leave requests because his school would not know of his absence even if he properly requested a substitute teacher using the AESOP (computerized) system. By this letter, Ranew also attempted to initiate the “interactive process” required by the Americans with Disabilities Act (ADA). Although Respondent had not identified himself as a “qualified individual with a disability” within the meaning of the ADA, his excessive absenteeism suggested that he might need an accommodation if his absenteeism was being caused by a medical condition. The November 6 letter stated, “to the extent that your absenteeism is being caused by medical condition, the District may be agreeable to allowing you to take a leave [of absence] to accommodate such a condition, if that would help. In the event you realize that you are unable to regularly be at work due to a medical condition, you should consider promptly requesting an extended leave of absence (e.g., for this semester or the school year), and the District would be willing to consider such a request.” To determine Respondent’s potential eligibility for an accommodation pursuant to the ADA, Ranew specifically requested that Respondent’s doctor provide documentation clarifying: “a) any specific condition/impairment that Respondent has, as well as the cause; b) any restrictions/limitations on Respondent’s work duties as a teacher; c) the expected duration for each limitation or whether it is permanent; d) whether the condition is controllable with the use of medication, and if yes: what is the mitigating effect of this medication; and whether Respondent could fully perform his job duties, with the aid of such medication.” In response to Ranew’s letter, Respondent provided the District with a doctor’s note from Dr. Kenneth Palestrant dated November 7, 2012, stating that the majority of Respondent’s visits to the clinics occur between the months of January through May and September through December (effectively during the calendar school year) and speculated that Respondent “may” be exposed to allergens in the school building or in his classroom. Dr. Palestrant explained that Respondent was being treated with antibiotics and allergy medications and recommended Respondent receive an allergy test from an allergist to identify the specific allergens. Dr. Palestrant found that other than the potential environmental exposure to an allergen, he found “no reason [Respondent] cannot perform his full duties as a school teacher as he has no impairment and the medications he has been given have no mitigating effect upon his performance.” After receiving Dr. Palestrant’s November 7, 2012, note, and after receiving an e-mail from Respondent in which he wondered if something in his classroom might be causing his medical condition, Ranew asked Sanders to inspect Respondent’s classroom. Sanders’ job duties would require him to facilitate any remedial action with regard to Respondent’s classroom, should one be needed. In response to this request, Respondent’s classroom was inspected but nothing of concern was discovered within the room. Nonetheless, the classroom was sanitized using two methods: with an ozone machine to kill bacteria and other germs, including mold, and also with a fogger using disinfectant that kills microorganisms, bacteria, and mold, as a precaution. On November 15, 2012, Respondent sent an e-mail to Ranew, informing her that he was “being evaluated by an Allergist, and will be setting up a colonoscopy per doctor’s orders Tuesday, [November 20, 2012].” On November 15, 2012, Ranew sent an e-mail to Respondent requesting that he provide her with an allergist report when complete. On November 16, 2012, Respondent sent an e-mail to Ranew in which he discussed beginning to take a new allergy medicine, and promised to fax the allergist report to her. Ranew issued a letter to Respondent dated December 21, 2012, advising him that she had yet to receive an allergist report, again requesting such a report or medical clarification. Ranew’s December 21, 2012, letter also reminded Respondent that regular, consistent, punctual attendance, and working a full assigned workday are essential functions of his position as a classroom teacher. Although Respondent did not request leave under the Family and Medical Leave Act (FMLA), when he failed to provide the requested allergist report five weeks after Ranew requested it, and Respondent continued his pattern of excessive absenteeism, the District advised that it intended to designate his absences as FMLA-qualifying. Ranew’s December 21, 2012, letter to Respondent again requested clarification from Respondent’s doctor/allergist, with a focus on “whether there is a modification or adjustment to the work environment that will enable you to perform the essential functions of [your] position (classroom teacher).” Respondent was told, “[i]n the event that you believe that something such as trees, grass, or something else near your current classroom/school may be causing your condition, which has resulted in many absences, the [School] District is willing to consider a request to transfer you to another location.” Notably, Respondent did not provide any information from a health care provider which suggested any work modification would enable him to perform the essential functions of his job, nor did he take advantage of Petitioner’s offer of a transfer to another location. In response, Respondent emailed Ranew on December 29, 2012, advising that his allergy test would be conducted on January 3, 2013, and he would provide the results to her as soon as he received them. Respondent also expressed interest in obtaining information regarding short-term disability leave. On January 8, 2013, Ranew advised Respondent that if he desired to take leave in connection with his private insurance company’s short-term disability policy, she requested that he advise her “as soon as possible as the [School] District may be able to accommodate you with an extended leave.” There is no evidence that Respondent pursued Ranew’s offer for an accommodation in connection with short-term disability. By letter dated January 8, 2013, Ranew advised Respondent that she still had not received a copy of his allergist’s report, and she “had been trying to accommodate [Respondent], but it is difficult to do when the information [the School District] need[s] is still not provided.” Ranew again reminded Respondent that his students needed continuity in the classroom and, if he was unable to provide that, other arrangements would need to be made for the upcoming semester. Respondent provided Ranew with an allergist report dated January 18, 2013. The report explained that Respondent tested positive for multiple allergens, and recommended treatments, including immunotherapy (allergy injections), prescribed medications (nasal sprays), and surgery (balloon sinuplasty). Respondent’s allergist identified Respondent being allergic to 42 antigens, including cats, dogs, various grasses, weeds, trees, dust mites and cockroaches, and mold. Respondent’s allergist recommended Respondent undergo surgery, and Petitioner permitted Respondent to take FMLA leave for such surgery. Respondent was also permitted to intermittently use all remaining FMLA leave available to him, which he exhausted and which expired on March 28, 2013, due to the conclusion of his FMLA designated 12-month period. In addition to utilizing all FMLA leave available, the District also provided an additional 21 days of unpaid leave during the remainder of the 2012-2013 school year to Respondent, which was above and beyond his allotted sick leave, as well as above and beyond the 60 days of FMLA leave to which he was entitled. During the 2012-2013 school year, Respondent was absent 89 out of 191 possible work days, which accounts for an absenteeism rate of 48 percent. During the 2012-2013 school year, Respondent only worked 772.50 hours. Although Petitioner designated additional unpaid days as FMLA, Respondent was not eligible for additional FMLA leave beginning in March 2013 through March 2014 because he had not worked the requisite number of hours in the preceding 12- month period to be eligible for FMLA leave. 2013-2014 School Year On August 9, 2013, prior to the beginning of the 2013- 2014 school year, Ranew sent a letter to Respondent regarding his excessive absenteeism; explaining that his regular attendance was expected during the upcoming 2013-2014 school year; that his students need continuity in the classroom and if he was unable to provide that continuity, that other arrangements needed to be made for the next school year; that he should not expect to be automatically extended any additional unpaid leave during the 2013-2014 school year; and he would only receive the sick leave to which he was already entitled. Ranew advised Respondent that when he returned for work at the beginning of the 2013-2014 school year he would have four days of permitted sick leave advanced to him, and would accrue one additional day at the end of each month from August through February. In this letter, Ranew also told Respondent that it was her understanding that the sinus surgery that he underwent was part of his treatment plan to resolve the sinus and allergy issues which seriously impacted his attendance (during the 2012- 2013 school year) and that his chronic sinusitis was expected to improve post operatively. Respondent did not challenge or correct Ranew’s understanding on these issues and did not indicate that additional absences were anticipated. Ranew had serious concerns about the lack of consistent instruction for Respondent’s students due to Respondent’s absenteeism. Only 11 of Respondent’s 94 students passed the standardized math examination required for graduation in the 2012-2013 school year, which is approximately a 12 percent pass rate. This was significantly lower than the 50 percent pass rate of Respondent’s colleagues who also taught the same type of “struggling” math students. In order to minimize the potential disruption to students caused by excessive absenteeism, Respondent was assigned to teach accounting classes for the new school year which are not courses required for graduation. Respondent was also assigned to a different classroom, in a different building, for the 2013-2014 school year. As of October 3, 2013, Respondent was absent on August 27, 28, 29, 30, and September 5, 9, 20, 23, 25, 26, and October 2, 2013, well in excess of the sick leave that he was permitted to take in accordance with Board policy. By letter dated October 3, 2013, Ms. Ranew wrote to Respondent advising him that his pattern of absenteeism has a direct negative impact on an orderly learning environment and referring to her August 9 correspondence wherein she directed Respondent to advise the District if he needed leave above and beyond the sick days that he was permitted to take. Ranew advised Respondent that he had not provided the requested medical documentation that would support that he had a medical condition necessitating leave from his job, but that the District was continuing its attempt to engage Respondent in an interactive process concerning his medical condition, and again requested documentation from Respondent’s doctor addressing his recent absences and his current condition. In response to Ranew’s October 3, 2013, letter, Respondent submitted a doctor’s note dated October 9, 2013, which advised that Respondent’s condition “can be treated with nasal sprays and intermittent antibiotics” but raised the potential for future treatment to include additional surgical procedure(s). Importantly, the doctor’s note clearly explained that Respondent “can perform as a teacher with [his medical conditions], though he may notice hearing loss changes whenever he has middle ear fluid.” The October 9, 2013, doctor’s note Respondent submitted accounted for four of his absences in August and two of his absences in September, but failed to address the other eight absences which he incurred during September and October 2013. Even after receiving Ms. Ranew’s October 3, 2013, letter, Respondent was absent on October 9, 21, and 22, 2013. As of October 24, 2013, Respondent was absent 14 days out of 46 instructional days for the 2013-2014 school year. Ranew worked with Yost in the decision to recommend to the Board that Respondent be placed on administrative leave without pay. The basis for that recommendation was Respondent’s excessive absenteeism and failure to follow protocol for sick leave. By letter dated October 24, 2013, Yost advised Respondent that she was recommending his placement on a leave of absence specifically because of his continual excessive absenteeism, which had been a constant disruption to the classroom and directly impacted an orderly, continuous learning environment for his students. Yost believed that recommending Respondent be placed on leave without pay was not disciplinary in nature, but rather done to provide him an accommodation to resolve any issues which had caused his excessive absenteeism. On October 24, 2013, Yost placed Respondent on “home assignment” with pay through November 19, 2013, at which time the Board voted to accept Yost’s recommendation to place Respondent on leave without pay for the remainder of the school year. The Charges Against Respondent In its Statement of Charges in Support of the Placement on Administrative Leave Without Pay filed on December 19, 2013, the District advanced four theories for Respondent’s leave without pay: incompetency, gross insubordination, willful neglect of duty, and misconduct in office. “Incompetency” is defined in Florida Administrative Code Rule 6A-5.056(3) as, “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Gross insubordination” is defined in rule 6A-5.056(4) as “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.” See Fla. Admin. Code R. 6A-5.056(2)(c). “Willful neglect of duty” is defined in rule 6A-5.056(5) as the “intentional or reckless failure to carry out required duties.” “Misconduct in Office,” according to rule 6A-5.056(2), is satisfied by a showing of one or more of the following: a violation of the adopted school board rules, a violation of the Code of Ethics of the Education Profession in Florida (as adopted in Florida Administrative Code Rule 6B-1.001), or behavior that disrupts the student’s learning environment. The Board’s Policy 6.301(3)(b) identifies a variety of terminable offenses including: Insubordination * * * (x) Failure to follow a direct order in normal performance of employee’s job * * * Failure to notify supervisor and receive permission for one or more consecutive workdays’ absence Unsatisfactory work performance Excessive absences or tardiness Neglect of duty Unauthorized absences * * * (xix) Violation of any rule, policy, regulation, or established procedure * * * (xxix) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent and Professional Performance, or the Code of Ethics for Public Officers and Employees * * * (xxxiv) Failure to correct performance deficiencies The finding that Respondent violated one and/or multiple Board policies relating to his excessive absenteeism necessarily shows that he is guilty of “misconduct in office.” Respondent’s Defenses Reason for Absences Respondent does not dispute his record of absenteeism or the District’s record of communicating its concern regarding his chronic absenteeism and its effect on his students. Rather, Respondent asserts that his absenteeism was related to the environmental conditions at PSLHS. Respondent believes that he suffered from chronic sinus problems, headaches, and repeated scratchy throats due to possible exposure to mold or other allergens at the school which caused many of his absences. According to Respondent, PSLHS suffered storm damage in 2008 that resulted in mold growing around his classroom door. After school authorities were notified by Respondent of the mold issue, the door and mold was removed. Respondent has not worked in that classroom in more than three years. Respondent admitted that some of his absences during the 2012-2013 and 2013-2014 school years were not related to sinus problems. For example, Respondent missed work when he stayed up late with a new puppy. Respondent also missed work to get massage therapy on several occasions. Several of Respondent’s absences were attributed to stomach issues. None of Respondent’s doctors identified any need for Respondent to be extensively absent from work due to any medical condition, other than his recommended sinus surgery which occurred in early 2013 and was covered by FMLA. No evidence was introduced at the hearing that any of Respondent’s doctors actually determined that anything either at PSLHS or within Respondent’s classroom caused Respondent’s excessive absenteeism, or that Respondent could not work at PSLHS due any medical reason. To the contrary, during the 2012-2013 school year, Respondent provided 30 doctor’s notes returning him to work with no restrictions. During the 2013-2014 school year, Respondent provided four doctor’s notes returning him to work with no restrictions. Respondent admitted he was allergic to various grasses and trees common to Florida, and even admitted he was allergic to the grass in his own yard. When Respondent was asked if anything changed in his home environment between the 2011-2012 and 2012- 2013 school years where his absences skyrocketed, he testified that he had just gotten a puppy. During the relevant time period, approximately 70 percent of Respondent’s absences occurred on days when the proceeding day was not a school day, which suggests it was unlikely that Respondent’s absences were due to the environment at his work site. Although Respondent claimed his school environment exacerbated his allergies, his absences at issue are full-day absences where he called in sick for the entire day rather than leaving work during the workday. At no time did Respondent or his healthcare providers suggest that PSLHS or Respondent’s classroom should have air quality testing. Respondent admitted, on the days he was absent, he felt worse when he woke up at home than when he was at work in his classroom and when he was too sick to come to work he would wake up “hacking.” Further, while on administrative leave without pay, Respondent showed up to PSLHS in January 2014 to oversee a wrestling tournament that he previously helped organize. It is illogical that Respondent would voluntarily return to the very place which he now suggests made him so sick that he needed to continuously take days off without available leave or sick time. No credible evidence was presented to suggest that Respondent’s chronic absenteeism was as a result of the District’s failure “to provide a suitable working environment,” as alleged by Respondent.1/ Use of Administrative Leave Rather Than Discipline The Board asserts that Respondent’s chronic pattern of absences during the 2012-2013 school year and the first few months of the 2013-2014 school year resulted in “just cause” for termination. However, in lieu of termination, Ranew proposed, and the Board accepted, her recommendation for administrative leave without pay. Ranew credibly testified that she believed this would give Respondent the opportunity to take care of any problems that were causing his absenteeism and allow him to successfully return to the classroom in the 2014-2015 school year. There is no provision under any statute, rule, or policy specifically providing the Board with the authority to place an employee on administrative leave without pay instead of a suspension without pay or termination.2/ Because of this, Respondent argues that he was deprived of due process by the Board and that the Board’s action constitutes the improper use of an unpromulgated rule. A “rule” is defined in the Administrative Procedure Act (APA) as an: agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of rule. § 120.52(16), Fla. Stat. No evidence was presented regarding any alleged Board “statement of general applicability” regarding the use of administrative leave without pay as a substitute for disciplinary action. Further, it is clear from the record that Respondent received all the process to which he was entitled--notice and an opportunity to be heard prior to the implementation of the leave without pay. Respondent was provided a letter by hand delivery on October 24, 2013, from Yost in which he was advised that he was being placed on temporary duty assignment until the next Board meeting and that she intended to recommend he be placed on administrative leave without pay through the remainder of the school year due to his excessive absenteeism. He was notified that he had exhausted all paid leave yet continued to be absent. It was also noted that Respondent’s physician indicated he could perform as a teacher but may have a hearing loss when middle ear fluid is present. Notably, his physician’s letter accounted for four of his absences in August and two of his absences in September 2013, but did not address the other eight absences which he incurred during September and October 2013. This letter advised Respondent that if he had any information to provide regarding why this action should not be taken, he could do so in a meeting or in writing. Accordingly, Respondent had notice and an opportunity to be heard prior to the implementation of the leave without pay. Additionally, the Statement of Charges issued on December 19, 2013, and the formal administrative hearing before DOAH constituted notice and an evidentiary hearing-–the post adverse employment action due process to which Respondent was entitled. The undersigned has no doubt about the sincerity of the Board’s desire to see Respondent take time to address whatever was resulting in his absences and return to work successfully. However, to call Respondent’s “administrative leave without pay” a non-disciplinary action is an exercise in form over substance. While on leave, Respondent was not receiving his normal wages for teaching. He was not allowed to return to the school to teach for the balance of the school year.3/ Understandably, Respondent does not perceive his leave as beneficent. For all intents and purposes it is, in fact, a “suspension” without pay which, pursuant to the Board’s policies, applicable rules, and statutes, can only be imposed for “just cause.”4/ Determinations of Ultimate Fact The greater weight of the evidence establishes that Respondent engaged in a pattern of excessive and chronic unexcused absenteeism during the 2012-2013 and 2013-2014 school years, despite the District’s repeated reminders regarding the disruption caused by Respondent’s absences and its multiple attempts to accommodate any medical condition that might have been causing the absences.5/ This pattern resulted in a variety of terminable offenses as described in Board Policy 6.301(3)(b). It is determined, as a matter of ultimate fact, that Respondent is guilty of incompetency, as defined by rule 6A- 5.056(3)(a)5. by virtue of his excessive absenteeism--a pattern which was not resolved after FMLA leave, 21 additional days of leave without pay during the 2012-2013 school year, and which continued into the new school year of 2013-2014. It is determined, as a matter of ultimate fact, that Respondent is guilty of gross insubordination by virtue of his failure to perform his required duties, excessive absenteeism despite having no paid leave available, and failing to return to work on a consistent and regular basis after repeated and extensive counseling by the District regarding the consequences of his actions. It is determined, as a matter of ultimate fact, that Respondent engaged in willful neglect of duty by failing to regularly report to work or to properly request time off from work or make arrangements to have lesson plans available for substitute teachers. It is determined, as a matter of ultimate fact, that Respondent engaged in misconduct in office by virtue of his violation of School Board policies and disrupting his students’ learning environment by his chronic absenteeism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, St. Lucie County School Board, enter a final order upholding Respondent’s suspension without pay from November 20, 2013, through the end of the 2013- 2014 school year; denying back pay for the full period of his suspension; and reinstating Respondent’s employment as a teacher at the start of the 2014-2015 school year. DONE AND ENTERED this 12th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of June, 2014.
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
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
