The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated May 11, 2006 and, more specifically, in the Notice of Specific Charges dated and filed May 30, 2006.
Findings Of Fact In 1983, Mr. Peraza, at 18 years of age, was arrested for strong-arm robbery. The case was nolle prossed, and the record was sealed. Almost 15 years later, in 1998, Mr. Peraza applied for an instructional position with the School Board. The 1983 arrest information became known to the School Board through this application process. In 1999, Mr. Peraza began his employment with the School Board as a teacher. At all times material hereto, he was assigned to Allapattah Middle School. While at Allapattah Middle School, Mr. Peraza taught Civics, Geography, and U.S. History. Also, at Allapattah Middle School, Mr. Peraza was the Department Chair and a Team Leader. Further, at Allapattah Middle School, Mr. Peraza received numerous awards from the school and the students, including Beginning Teacher of the Year and the student- nominated, Best Teacher. He was also twice nominated for Teacher of the Year. Additionally, Mr. Peraza was active in some of the student-oriented activities: participated in after school tutoring; assisted the Chess Club; and assisted wrestlers in achieving academic success. Since the beginning of his employment with the School Board, Mr. Peraza received outstanding performance evaluations. Mr. Peraza was well-liked by both parents and students. On or about March 12, 2004, Mr. Peraza was arrested for selling and felony dealing in a controlled substance, i.e., steroids. The arrest occurred on school property at the administration office. He was charged with selling a controlled substance, i.e., steroids, and with forgery (attempting to use the identification of another person without consent). The court's disposition of the charges was the withholding of adjudication and probation, with special conditions--probation for a year, with early termination after six months. After five months, Mr. Peraza probation was terminated due to his compliance with all the terms of his probation. At hearing, Mr. Peraza explained the circumstances surrounding the arrest, charge, and disposition. He explained that a man whom he had befriended at the gym inquired as to whether he (Mr. Peraza) would receive mail for him (the man) at his (Mr. Peraza’s) post office box because the man stated that he (the man) was unable to receive mail at his home; Mr. Peraza agreed to do so. A U.S. Postal inspector intercepted a packaged addressed to Mr. Peraza’s post office box, not to Mr. Peraza, which contained steroids. At the time of his arrest, Mr. Peraza denied having any knowledge of the package or of its contents. Mr. Peraza accepted a plea agreement of withholding adjudication and probation to avoid the possibility of being incarcerated so that he could support his two young daughters. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. After the arrest of Mr. Peraza, the principal at Allapattah called a special faculty meeting. At the meeting, the principal informed the faculty of Mr. Peraza's arrest. No evidence was presented that the faculty would have known about the arrest had the principal not informed the faculty at the special meeting. The local newspaper, The Miami Herald, contained a report of the arrest. The newspaper’s report on Mr. Peraza’s arrest was found on page 47 of the paper amidst the paper’s report of the occurrence of numerous criminal actions. After this criminal incident, Mr. Peraza was returned to the classroom by the School Board. He had the understanding that no disciplinary action would result from the criminal incident although he did receive a verbal warning from the principal at Allapattah Middle School. On or about September 30, 2004, Mr. Peraza was arrested at Allapattah Middle School for probation violation. The charge was eventually dismissed. During the time that the School Board was reviewing the incident, he was given an alternate location assignment. The principal at Allapattah Middle School gave Mr. Peraza a verbal warning for the incident. When Mr. Peraza returned to Allapattah Middle School, he was welcomed back by his colleagues, the students, parents, and his administrator; and he received several letters of support from students and parents. Further, at a back-to-school gathering in October 2004, when Mr. Peraza was introduced, he received a standing ovation. On or about November 26, 2005, Mr. Peraza was arrested for and charged with aggravated battery and witness tampering/threatening, involving a domestic incident with his wife. The court's disposition of the charges was probation for five years. At the time of the hearing in the case at hand, he was still on probation. At hearing, Mr. Peraza and his wife explained the circumstances of the charges involving the domestic incident. Mrs. Peraza suffers from "night terrors," a condition in which she, during sleep, screams and acts violently but is not aware of what she is doing. Prior to the incident, neither Mr. Peraza nor his wife had informed Mr. Peraza's daughters of or explained to them his wife’s condition because she was embarrassed by her condition. At the time of the incident, Mrs. Peraza was suffering from an episode of a night terror, and Mr. Peraza was attempting to calm and restrain her to ensure her safety. Mr. Peraza's daughters saw him, and one of the daughters, fearing for the safety of Mrs. Peraza, but not aware that Mrs. Peraza was experiencing one of her episodes, called 911. Mrs. Peraza, because of her condition, was unaware of what had occurred prior to the arrival of the law enforcement officers. The law enforcement officers attempted to question Mr. Peraza’s daughters, but he intervened demanding that the officers not question and upset his daughters. Mr. and Mrs. Peraza are being seen by a therapist for her condition. The undersigned finds the testimony of Mr. and Mrs. Peraza credible. Mr. Peraza explained the circumstances surrounding the plea agreement. At the time of the domestic incident and the ensuing charges, he was involved in a custody battle with his ex-wife over his daughters. Mr. Peraza was faced with expending funds for his criminal defense or his custody battle; he chose the custody battle. As a result, he accepted a plea agreement, which resulted in the five-year probation. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. No testimony was presented that students, parents, or faculty had any knowledge of Mr. Peraza’s arrest involving the domestic incident. Mr. Peraza does not deny any of the foregoing arrests, charges, or court dispositions. Mr. Peraza has had no further arrests, charges or convictions. By letter dated May 11, 2006, the School Board notified Mr. Peraza that, at its meeting on May 10, 2006, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
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: Dismissing Counts I and II; and Immediately reinstating Javier Peraza, with back pay and benefits. DONE AND ENTERED this 1st day of February 2007, 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 1st day of February, 2007. COPIES FURNISHED: Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines street, Room 1244 Tallahassee, Florida 32399-0400 John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact 1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993. 2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County. Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level. The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks. Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school. Mr. Long missed or was late for parent-teacher conferences because of his tardiness. Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions. Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences. Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information. Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21. Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes. Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up. Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989. Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents. Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements. Student response to such actions caused a distraction to other classes and teachers. As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work. Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies. On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone. On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district. The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty. Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office. Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences. On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination. Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program. In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program. Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class. On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine. Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990. On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class. On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom. Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day. On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests. On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death. When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail. District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled. On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences. Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted. On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992. On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency. On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order. Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years. School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher. All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again. The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior. Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education. Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies. The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long: shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district; shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance; shall perform his assigned duties in a competent professional manner; shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods. During the probationary period, Mr. Long shall submit to random drug testing. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992. WILLIAM R. DORSEY, JR. 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 29th day of June 1992.
The Issue Whether Respondent's employment as a teacher by the Indian River County School Board should be terminated for the reasons specified in the Charging Letter dated September 20, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Indian River County, Florida. At all times pertinent to this case, Respondent was employed as a physical education teacher at the Alternative Education Center, a public school in Indian River County, Florida. On October 16, 2012, Respondent was arrested and charged with purchase of marijuana and possession of more than 20 grams of cannabis, both of which are third degree felonies. On March 6, 2013, Respondent entered a plea of no contest to the above-noted criminal charges and entered into the Drug Court Intervention Program. Pending the outcome of Respondent's criminal charges, on October 18, 2012, Respondent was reassigned to work at the Support Services Complex ("Complex"). Respondent was directed to report to Rick Chuma, Director of Purchasing for the District, on October 19, 2012, at 8:00 a.m. Mr. Chuma testified that individuals, such as Respondent, who are reassigned to the Complex are typically assigned menial tasks such as shredding paper or other minor projects. Specific to Respondent, Mr. Chuma recalled Respondent's duties as shredding paper and, on one occasion, working for Patrick McCarty, the Director of Food Services, cleaning the kitchen. Mr. Chuma conceded that there would be occasions where Respondent did not have any tasks to perform at the Complex; however, he noted that under such circumstances Respondent was not permitted to leave during his assigned hours (excepting breaks or lunch). Denise Roberts, the Executive Director of Human Resources, testified that Respondent was assigned to work at the Complex from approximately 7:30 a.m. to 11:30 a.m. or 12:00 p.m. At the Complex, individuals such as Respondent kept an accounting of their time by completing a "Personnel Time Sheet" on a daily basis. Margaret Irene Herman, Mr. Chuma's assistant, ensures personnel are signed in and out. The timesheets cover a two-week period and are maintained in a basket on her desk. Respondent had an individual time sheet and would document for each day when he arrived and left the Complex. Although personnel are expected to complete the form in real time, that is, sign in upon arrival, and sign out when departing, some personnel would sign in and out upon arrival at work. This was not a disciplinable offense if the employee worked during the documented time period. In February 2013, after approximately four months at the Complex, concerns arose regarding Respondent's whereabouts at the Complex during his assigned hours. On one occasion, Ms. Roberts received a call from Ms. Herman inquiring as to whether Respondent had requested and been authorized leave, because he could not be located. Mr. Chuma testified that, on one occasion, he was asked to locate Respondent at the Complex, and he could not be located. Patrick McCarty also testified that, on one occasion, he was asked to locate Respondent, but was unsuccessful.1/ On the above-noted occasions, Respondent had signed in and out on his timesheet as working a full day. Although Respondent continued to have access to and utilize his work email, and Petitioner had his phone number, Petitioner never attempted to locate Respondent via those channels. Instead, Petitioner contacted Kenneth Thompson, the plant manager of the Complex, to review video surveillance of the Complex. Ms. Roberts and Mr. McCarty recalled viewing one video surveillance clip that purportedly showed Respondent arriving at the Complex and then leaving the Complex several minutes later. Ms. Herman testified that she viewed approximately three separate video clips similarly showing Respondent arriving at work and then leaving several minutes later.2/ Respondent conceded that there were days when he arrived at the Complex, signed in and out as working his scheduled hours, and then left the Complex several minutes later for the entire day. On those occasions, Respondent did not notify anyone of his absence. There is no evidence that Respondent requested leave on those occasions. The evidence reveals that Respondent received his full pay for the days that he was willfully absent. At some point in time, Respondent was informed that he was required to sign in and out in the presence of Ms. Herman.3/ Thereafter, Respondent complied and there is no evidence of further incidents regarding Respondent being physically present at the Complex. On July 1, 2013, William Fritz was assigned as the Assistant Superintendent for Human Resources and Risk Management. Shortly thereafter, Mr. Fritz conducted an investigation regarding the above-noted conduct. At the conclusion of his investigation, Mr. Fritz recommended Respondent's termination, and the Superintendent ultimately supported that recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding William Howle guilty of misconduct in office, and terminating his employment. DONE AND ENTERED this 4th day of August, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 4th day of August, 2014.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
The Issue The issue to be determined is whether just cause exists to terminate Respondent’s employment as a teacher in the Duval County School System.
Findings Of Fact Background Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the Duval County School System. Petitioner’s authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. At all times material to this matter, Respondent was employed by the School Board as a teacher at Robert E. Lee High School and Raines High School. During the 2016-2017 school year, Respondent was a mathematics teacher. Mr. Perry is subject to the collective bargaining agreement for teaching personnel between the School Board and the Duval Teacher’s Union (“DTU”). On March 17, 2017, the School Board issued a Notice, notifying Mr. Perry of its intent to recommend suspension without pay and termination of Mr. Perry’s position as a teacher. On April 4, 2017, the School Board, at a regularly scheduled meeting, voted to accept the recommendation to suspend without pay and terminate Mr. Perry. The allegations and charges in the Notice served as the bases upon which the School Board members cast their votes. On April 7, 2017, Respondent timely filed a request for an administrative hearing to dispute the allegations in the Notice. Prior Disciplinary Action The School Board has issued prior disciplinary action against Mr. Perry. A School Board teacher may receive progressive or non-progressive disciplinary action. Progressive discipline is formal action that begins with less severe discipline and progresses to more severe discipline. On the other hand, non-progressive discipline is informal action. The Notice listed the prior disciplinary action imposed against Mr. Perry as discussed further below. In October 2014, Respondent was investigated for inviting students to view his Twitter page,1/ which allegedly contained inappropriate and offensive images. Mr. Perry was issued a verbal warning, which is considered non-progressive discipline. In March 2015, Respondent was arrested for Making Repeated Harassing Phone Calls, a misdemeanor, to which he entered into a pre-trial intervention program. On September 25, 2015, Respondent received Progressive Discipline (Step II) of a written reprimand. This was Mr. Perry’s first disciplinary action involving progressive discipline. In January 2016, Respondent was arrested a second time and charged with stalking, a misdemeanor, to which he pled nolo contendere. On May 31, 2016, Respondent received Progressive Discipline (Step II) of a written reprimand. Recent Conduct In addition to the prior arrests resulting in prior discipline, the Notice indicates Respondent had two additional arrests. The Notice references arrests on August 5, 2016, and January 24, 2017. Regarding the August 2016 arrest, the evidence offered at hearing does not support the allegations in the Notice regarding that arrest or the alleged subsequent incarceration. On January 24, 2017, Respondent was arrested for Violation of Injunction for Protective Order. Regarding the January 2017 arrest, Petitioner offered at hearing Respondent’s email (dated February 20, 2017) to Reginald Johnson, in its case-in-chief. In the email, Respondent admits that he was arrested on January 24, 2017. The statement was offered by Petitioner against Respondent, and thus, meets a hearsay exception.2/ In an attempt to explain the circumstances surrounding the January 2017 arrest, Petitioner offered a police report (with attached affidavits), which was included in Mr. Johnson’s investigative report. The police report and affidavits contain hearsay that does not meet a hearsay exception.3/ Therefore, any statements in the police report and affidavits cannot be relied upon to support a finding of fact. Furthermore, since the affiants did not testify at hearing, Respondent did not have an opportunity to cross-examine them. Mr. Johnson also included summaries of the affidavits in his investigative report. The summaries, like the affidavits, are hearsay and are not credible evidence to support a finding of fact. Mr. Perry also accrued a number of unexcused absences during the 2016-2017 academic school year. Between August 29, 2016, through March 6, 2017, Petitioner accrued 58 days of unauthorized leave without pay (“LWOP”). There were approximately 180 days in the academic school year. Based on the number of absences, Respondent was absent approximately 32 percent of the school days, which is excessive. The School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. Mr. Schneider explained the protocol for teachers to report absences. If a teacher is unable to request leave before an absence, the teacher is required to call in to the school and complete a leave request form upon return to work. Mr. Schneider explained that when a teacher does not request leave before an absence, it affects the administration’s ability to obtain a substitute teacher. Mr. Schneider also discussed the impact of Mr. Perry’s absence on parents and students. Mr. Perry’s absences resulted in the inability of students and parents to determine the students’ current grades. Mr. Schneider also testified that he “thinks the students felt a lack of confidence and then they have increased anxiety” regarding lack of knowledge of their grades and test scores. However, Mr. Schneider did not identify any students or parents who confirmed his assertion. Therefore, the undersigned is not persuaded by Mr. Schneider’s unsubstantiated testimony regarding the impact Mr. Perry’s absences had on students. Mr. Perry testified that the LWOP was a result of his incarceration because he was unable to report his absences to the appropriate school officials. However, there was no credible evidence to support Respondent’s assertion that he was unable to report his absences and seek approval for leave for the 58 days he was absent from work. Although he was incarcerated, it was Respondent’s responsibility to properly request leave according to the leave policy. Disciplinary Action Recommendation At the completion of the investigation of the allegations against Mr. Perry, his investigative file was referred to Human Resource Services for review. Ms. Young, the assistant superintendent of Human Resources, is responsible for overseeing the Department of Equity and Inclusion and Professional Standards, which conducts investigations of complaints made against district employees for misconduct. Ms. Young’s duties include reviewing investigative records to determine a recommendation of disciplinary action based on the progressive discipline policy. Ms. Young primarily reviews cases involving allegations that could result in suspension without pay or termination. The progressive discipline policy provides four levels of discipline beginning with a verbal reprimand (Step I), written reprimand (Step II), suspension without pay (Step III), and termination (Step IV). The purpose of progressive discipline is to allow the teacher an opportunity to rehabilitate his or her behavior. However, any of the steps may be skipped if the conduct is deemed severe as determined by assessing the totality of the circumstances. The factors considered include the nature of incident, whether there is a pattern of behavior, whether students are involved, and whether there are mitigating or aggravating circumstances. Ms. Young reviewed Mr. Perry’s investigative file and determined that Mr. Perry’s pattern of numerous arrests and excessive absences resulting in leave without pay demonstrated that he was unable to perform his duties a teacher. Ms. Young explained that a teacher’s conduct outside of work may be considered misconduct because it impacts the teacher’s reputation in the community with peers and with students. Regarding mitigating factors, Ms. Young considered Mr. Perry’s cooperation as a mitigating factor. Although Ms. Young had no information regarding Mr. Perry’s conduct within the classroom, Mr. Schneider testified that Mr. Perry had an effective rating for conduct in the classroom. Ultimate Findings of Fact The undersigned recognizes that Petitioner’s actions arise from a set of events related to a child custody dispute. Based on the facts set forth herein, the preponderance of the evidence supports a finding that Petitioner’s actions resulted in a number of arrests over the course of 18 months. The preponderance of the evidence demonstrates that Respondent accrued excessive absences by accruing 58 absences resulting in LWOP during the 2016-2017 academic school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order terminating the employment of Jason Perry as a teacher. DONE AND ENTERED this 27th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 27th day of October, 2017.
Findings Of Fact Ms. Williams has been employed by the School Board since January 8, 2000. She is employed as a bookkeeper at Alva Middle School. She is governed by the collective bargaining agreement between the School Board and the Support Association of Lee County (SPLAC). The standard for the discipline of support personnel is "just cause" pursuant to Article 7 of the SPLAC Agreement. On or about November 24, 2010, Ms. Williams was charged with 33 felony counts of Fraud and Concealing Information to obtain prescriptions pursuant to section 893.17(7)(a)8., Florida Statutes. Ms. Williams timely notified the School District of her arrest. On December 21, 2010, the Office of the State Attorney, Twentieth Judicial Circuit of Florida (State Attorney), elected not to prosecute Ms. Williams for 27 of the 33 charges and formally charged Ms. Williams by criminal information with five felonies for withholding information from a practitioner pursuant to section 893.17(7)(a)8. On January 13, 2011, Ms. Williams entered into a Pretrial Diversion Program contract for a period of not less than six months and not more than 18 months. In the agreement, Ms. Williams agreed to certain conditions including, but not limited to, reporting to a probation officer, submission to drug testing, and the completion of 20 hours of community service. Upon Ms. Williams's successful completion of the Pretrial Diversion Program agreement, the State Attorney agreed to drop the charges and dismiss the Information. On November 30, 2010, Ms. Williams was suspended with pay and benefits, pending the outcome of the School District's investigation into the alleged misconduct. In accordance with provision 7.10 of the SPLAC Agreement, a predetermination conference for Ms. Williams was scheduled for March 3, 2011. Ms. Williams attended the predetermination conference, accompanied by her union-retained attorney, Robert Coleman. Ms. Williams was advised that the purpose of the predetermination conference was to give her an opportunity to respond to the allegations. On March 10, 2011, the School District concluded its investigation. It determined that Ms. Williams's employment should be terminated pursuant to School Board Policy 5.04 due to Ms. Williams having committed a disqualifying offense enumerated under chapter 435, Florida Statutes; violation of School Board Policy 5.02, Ethical Standards, by failing to adhere to the highest ethical standards expected of all School District employees; violation of School Board Policy 5.03, General Requirements for Appointment and Employment, which requires that an employee be of good moral character; and violation of School Board Policy 5.29, Complaints Relating to Employees, by failing to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Ms. Williams from employment without pay effective April 19, 2011, with such suspension to continue until the State Attorney has dismissed the felony drug offenses against Ms. Williams; providing that Ms. Williams be reinstated to her position immediately upon the expiration of the suspension period; providing that, if Ms. Williams is prosecuted for and convicted of, or pleads guilty (or nolo contendere) to the pending charges as a result of her failing to successfully complete the Pretrial Diversion Program, she will be discharged from her employment; and finding that Ms. Williams has not violated School Board Policies 5.02, 5.03, and 5.29. DONE AND ENTERED this 1st day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2011.
