The Issue The issue is whether Respondent is guilty of willful absence from duty, in violation of Section 1012.67, Florida Statutes; willful neglect of duty, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; gross insubordination, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes; and incompetence, in violation of Sections 447.209, 1012.22(1)(f), and 1012.40, Florida Statutes.
Findings Of Fact During the 2001-02 school year, Petitioner employed Respondent as a part-time cafeteria worker at Ludlam Elementary School. Except for the manager, all food workers at the school are part-time employees. The absence of any of these workers, especially without notice on the morning of the nonappearance, places a considerable burden on the other cafeteria workers and jeopardizes the provision of what may be the first meal of the day for many students. By January 24, 2002, Respondent had been absent 16 days, including the four consecutive days preceding Christmas vacation, four of five days in mid-January, and January 22-24, 2002. Responding to this problem, the school principal sent Respondent a memorandum dated January 24 and ordering her to notify the principal of when Respondent intended to return to work and use leave procedures in the future. On the same date, the principal sent another memorandum to Respondent ordering her to communicate directly to the principal when Respondent intended to be absent and document future absences with medical excuses. Respondent signed this memorandum, indicating receipt. On Sunday, January 27, 2002, Respondent telephoned the principal and told her that Respondent would be returning to work the following day. The next day, when Respondent appeared at work, the principal talked to her about Respondent's professional responsibilities and offered to refer her to the Employee Assistance Program for help with a problem with alcohol that Respondent said that she had. Respondent declined the offer and said she would follow the principal's orders. The next day, Respondent arrived to work late. The following day, Respondent did not report to work or call in to notify the school of her absence. The two succeeding days, Respondent did not report to work, but she called the principal to say that she was in the hospital. However, on the last day of the week, Respondent did not report to work and did not call in. On February 11, 2002, the principal conducted a conference-for-the-record (CFR) with Respondent. Respondent said that she had been a recovering alcoholic for 15 years and had been encountering problems with alcohol since October. The principal again offered a referral to the Employee Assistance Program, but Respondent said that she was already in counseling. The principal warned Respondent that further noncompliance with her order would be gross insubordination. On February 19 and 20, 2002, Respondent was again absent and again failed to notify anyone at school of her absence. On the next day, the principal sent another warning memorandum to Respondent. On February 26 and March 11, 2002, Respondent again missed work and again failed to call anyone at the school. Respondent never provided medical documentation for these absences. Also, on March 5 and 8, 2002, Respondent was tardy without calling in to say that she would be late. On March 11, Respondent also failed to attend an appointment that the principal had scheduled for her with the Employee Assistance Program. Respondent told the principal that she would reschedule the appointment, but later failed to appear at this appointment. On September 20, 2002, the district office conducted a CFR. Out of 18 workdays in the new 2002-03 school year, Respondent had already missed four. For the prior school year, Respondent had been absent 47 times and late 11 times. Of the 47 absences, Respondent never called the principal 23 times and never even called the school 11 times. Respondent at first claimed that she had only been absence once that school year, but later admitted to four absences. She then explained that two of the absences were due to a job interview and an accident at the train station. On January 16, 2003, Petitioner advised Respondent that it had suspended her and initiated dismissal proceedings for the reasons set forth above. Petitioner has proved that Respondent is guilty of willful absence from duty without leave by repeated absences without leave and without notification on the day of the absence; willful neglect of duty by repeated absences, repeated failures to advise the school of absences, and repeated failures to provide medical documentation for absences; gross insubordination for the repeated disregard of the principal's order to call in before absences and document absences; and incompetence for the failure to perform her job duties adequately.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Denise Wallace Legal Department The School Board of Miami-Dade County 1452 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carleen Braddy 1884 Northwest 53rd Street Miami, Florida 33142
The Issue The issue presented is whether Respondent is guilty of the allegations in the Complaint and Notice of Hearing filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian. On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian. During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment. On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows: You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment. On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie. On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation. On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives. On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard. By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard. By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3. On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian. During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year. Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993- 94 school year Respondent was the only custodian at Fulford assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility. As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables. In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal. Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal. The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him. Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift. A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never requested a master custodian to assist Respondent with additional training. A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed against Respondent in this cause and reinstating Respondent to the position of head custodian with full back pay and benefits. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: J. Michael Haygood, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite No. 562 Miami, Florida 33132-1308 Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Mr. Octavio J. Visiedo Superintendent of Dade County Schools 1450 Northeast Second Avenue, Suite No. 403 Miami, Florida 33132-1308
The Issue The issue for determination is whether Respondent should be suspended, without pay, and terminated from all employment with Petitioner for the offenses set forth in the Notice of Specific Charges.
Findings Of Fact No dispute exists that, at all times material hereto, Ms. Hankerson was an instructional employee with the School Board. Ms. Hankerson has been a teacher with the School Board for 11 years, beginning as a teacher with the School Board in 2000. She was first assigned to Renick Education Center. Subsequently, Ms. Hankerson was transferred to Barbara Goleman High School (Goleman) in Miami Lakes, Florida. During the 2009-2010 school year, she taught science to exceptional student education (ESE) students at Goleman. At the beginning of the 2010-2011 school year, Ms. Hankerson was advised that her department was being eliminated and that she needed to find another school at which to work if she desired to continue her employment with the School Board. She sought other schools and received an email from Howard McMillan Middle School (McMillan) to come for an interview. She accepted a teaching position at McMillan, effective September 20, 2010. While working at Goleman in Miami Lakes, Florida, Ms. Hankerson resided in Miami Shores, Florida. Her residence was in close proximity to Goleman. She had three children and was able to get her children to school and report to Goleman in a timely manner throughout her tenure at Goleman. Ms. Hankerson's travel time to McMillan was significantly greater than to Goleman due to McMillan being located further south than Goleman.2 During the 2010-2011 school year, all teachers at McMillan were required to report to work at 8:30 a.m. Professional meetings, which consisted of team meetings and department meetings, were held from 8:30 a.m. until 9:00 a.m. Team meetings were held three days a week. Department meetings were held two days a week, where teachers meet by department to discuss curricular activities and requirements. Faculty meetings were held every other Tuesdays, and, when faculty meetings occurred, no professional meetings were held because the faculty meetings replaced the professional meetings. At 9:00 a.m., teachers went to their respective classroom to meet their students, who began arriving at 9:00 a.m. Instruction began at 9:10 a.m., with homeroom followed by advisement, where the Comprehensive Research Reading Plan was implemented, and ended at 9:46 a.m. First period began at 9:56 a.m. School ended at 3:50 p.m. Ms. Hankerson was assigned a homeroom class. The students in her classroom consisted of eighth grade students, who were not performing at grade level in reading and were FCAT Level 1 students in reading. Ms. Hankerson's first period (Period 1) was a seventh grade civics class. Her students consisted of ESE students, with varying exceptionalities. She was the sole teacher. Ms. Hankerson was a co-teacher for four periods of the remaining school day, teaching science. The students for the four periods consisted of general education students and ESE students. Ms. Hankerson was the ESE teacher, and the other teacher was the general education teacher, who generally took the lead in the classroom. The second period (Period 2) was a seventh grade science class; the third period (Period 3) was an eighth grade science class; the fourth period (Period 4) was a sixth grade science class; and the sixth period (Period 6) was a seventh grade science class. Her fifth period (Period 5) was a planning period. No dispute exists that Ms. Hankerson's employment with the School Board is subject to, among other things, a professional service contract, a collective bargaining agreement (Agreement) between the School Board and the United Teachers of Dade (UTD), and policies and procedures of the School Board. School Board Policy and the Agreement provide teachers with one sick day of leave every month. At the beginning of each school year, each teacher is given, up front, four days of sick leave that the teacher can use. However, the accrual of sick leave is one sick leave day per month for the ten-month period that a teacher is employed with the School Board, totaling ten sick days of leave. During the ten-month period, if a teacher takes leave exceeding the ten days and does not have leave that is "banked," which is leave that is carried over from one school year to the next, it results in leave without pay, unauthorized. In a medical situation, if a teacher knows that he or she will be absent for an extended period of time, the teacher would apply for leave. If the absence will be over 30 days, the teacher would apply for medical leave and can use leave that is banked. However, if no leave is banked, it results in leave without pay, unauthorized. If a teacher is going to be absent from work, the teacher is required to call into a dedicated-absence telephone line at least one hour before the start of the workday. On the day that the teacher is absent, the teacher is also required to call his or her school 30 minutes prior to the scheduled student dismissal time, indicating whether he or she will report to work on the next workday in order for the school to make arrangements for a substitute teacher. A teacher, who is absent without prior approval, is deemed to have been willfully absent without leave, except in a situation of sudden illness or an emergency situation. Immediately upon beginning at McMillan, Ms. Hankerson began arriving late and using her sick days. Eight days after beginning at McMillan, on September 28, 2010, she took a sick leave day; on October 1, 2010, she took one day of leave without pay, unauthorized; and on October 13 and 19, 2010, she took one sick leave day and one-half sick leave day, respectively. On October 21, 2010, while she was at McMillan, allegations, unrelated to the instant case, involving inappropriate conduct and remarks were made against Ms. Hankerson. Effective October 22, 2010, she was removed from McMillan and placed at the School Board's Region office, pending an investigation. A substitute teacher was hired to take over Ms. Hankerson's classes. The allegations were referred for investigation to the School Board's Civilian Investigative Unit. Ms. Hankerson was assigned to the Region office from October 22, 2010, through February 22, 2011. While at the Region office, Ms. Hankerson continued her pattern of absences. Between October 22, 2010, and February 22, 2011, she accumulated an additional 18 days of absences: five and one-half days of leave without pay, unauthorized; seven days of leave without pay, authorized; and five and one-half days of sick leave. The investigation into the allegations was concluded. At a Conference-For-The-Record (CFR) held by the School Board's Office of Professional Standards (OPS) on November 29, 2010, memorialized in a Summary of CFR dated December 3, 2010, Ms. Handerson was advised that probable cause existed for violations of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. At the CFR, the OPS provided her with a copy of the School Board rules; The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; and a document titled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." Additionally, the OPS issued her directives, including adhere to all the School Board's rules and regulations; and comport, both at the workplace and in the community, in a manner that reflects credit upon herself and the School Board. By letter dated February 10, 2011, Ms. Hankerson was notified that the School Board had taken action, at its meeting on February 9, 2011, to suspend her without pay for five workdays from February 10, 2011, through February 16, 2011. Further, the letter notified her to report to work at McMillan on February 17, 2011. However, Ms. Hankerson did not serve the suspension from February 10, 2011, through February 16, 2011. The suspension was rescheduled to February 22 through 28, 2011, with her return to McMillan on March 1, 2011. Having served her suspension on February 22 through 28, 2011, Ms. Hankerson failed to return to McMillan on March 1, 2011. Moreover, she failed to call the dedicated absence telephone line at McMillan, the Absence Reporting System (ARS), one hour prior to the workday on March 1, 2011, to state that she would not report to work that day; and failed to call 30 minutes before the scheduled student dismissal on March 1, 2011, to state whether she would report to work on March 2, 2011. On March 2, 2011, Ms. Hankerson reported to McMillan for work and, also, reported ten minutes late, at 8:40 a.m. That same morning, McMillan's principal, Hilca Thomas, met with Ms. Hankerson and advised her that she (Ms. Hankerson) was required to report to work on March 1, 2011, not March 2, 2011; and that March 1, 2011, would be reported as leave without pay, unauthorized. Ms. Hankerson blamed the arrival on March 2, 2011, instead of March 1, 2011, on a miscommunication between her and the UTD representative. Further, Ms. Thomas reminded Ms. Hankerson of the hours of work and the attendance procedures, including communicating absences using the ARS. Ms. Hankerson stated that she would "not make it in at 8:30"; that she would "be late almost every morning because of [her] children and [she] live[s] far [away]"; and that being late was "unavoidable." Additionally, Ms. Thomas advised Ms. Hankerson that her (Ms. Hankerson's) undergarment was exposed and that she was not wearing appropriate attire. Ms. Hankerson abruptly left Ms. Thomas' office stating that she was going to UTD's office downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson returned to Ms. Thomas' office, but a substitute teacher was already deployed to Ms. Hankerson's classroom. As a result, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could leave for the day and directed Ms. Hankerson to report back to McMillan for work on March 3, 2011. The events on March 2, 2011, were memorialized in a memorandum from Ms. Thomas to Ms. Hankerson on that same date. Ms. Hankerson acknowledged receiving a copy of the memorandum. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and to follow the procedures for absences were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson failed to report to work at McMillan on March 3, 2011. Also, she failed to report to work on March 4, 2011. Both days were reported as leave without pay, unauthorized. Ms. Hankerson reported to work at McMillan on March 7, 2011, the next school day, at which time she was issued an Absence from Worksite Directive by Ms. Thomas. The Absence from Worksite Directive advised Ms. Hankerson, among other things, that attendance and punctuality were essential functions of her job and that, since September 20, 2010, she had accumulated 25.5 absences.3 The absences were reflected as four absences within her first month at McMillan (September 20 through October 22, 2010); 17.5 absences when she was assigned to the Region office during the investigation; and four absences when she was to report back to McMillan between March 1 and 4, 2011. Additionally, the Absence from Worksite Directive instructed Ms. Hankerson on the proper procedures to obtain authorized leave of absence. She had failed to avail herself of the proper procedures to obtain authorized leave of absence. Further, the Absence from Worksite Directive advised Ms. Hankerson that her noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. On March 7, 2011, Ms. Hankerson acknowledged receiving the Absence from Worksite Directive by signing the document. The evidence demonstrates that the directives issued to Ms. Hankerson by Ms. Thomas in the Absence from Worksite Directive were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to issue the directives. Ms. Hankerson failed to abide by and comply with the directives. On March 10, 2011, three days after receiving the Absence from Worksite Directive, Ms. Hankerson arrived at McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and reminded her (Ms. Hankerson) of the directives. Additionally, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) was inappropriately dressed. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On March 11, 2011, Ms. Hankerson arrived at McMillan late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and advised her (Ms. Hankerson) that, because she (Ms. Hankerson) had failed to call-in to the ARS, a substitute had been hired for the day. Ms. Thompson reported the absence as one day leave without pay, unauthorized. On March 21, 2011, Ms. Hankerson failed to report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on March 22, 2011, and, as a result, Ms. Thomas hired a substitute for March 22, 2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and reviewed the absence with her (Ms. Hankerson); reported Ms. Hankerson's absence as unauthorized; and advised Ms. Hankerson that a substitute was hired for the day. Ms. Thompson reported each absence as one-day leave without pay, unauthorized. On March 29, 2011, Ms. Hankerson left McMillan approximately an hour early, at 2:45 p.m., without prior approval and without signing-out. Also, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, March 30, 2011, Ms. Hankerson did not report to McMillan. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, March 31, 2011, Ms. Hankerson left McMillan approximately 30 minutes early, at 3:20 p.m., without prior approval and without signing-out. Additionally, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, April 1, 2011, Ms. Hankerson left McMillan at 12:30 p.m., without prior approval and without signing-out. Also, she failed to attend her classes at Periods 4 and 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On April 4, 2011, Ms. Hankerson left McMillan at 10:47 a.m., without prior approval and without signing-out. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, April 5, 2011, Ms. Hankerson arrived at McMillan a little over one-half hour late, at 9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the attendance, and informed her (Ms. Hankerson's) that the early departures from McMillan would be reported as leave without pay, unauthorized. Further, Ms. Thomas provided Ms. Hankerson with notification of a CFR to be held on April 8, 2011. The next day, April 6, 2011, Ms. Hankerson did not report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on April 7, 2011, and, as a result, Ms. Thomas hired a substitute for April 7, 2011. The CFR on April 8, 2011, was scheduled for 3:00 p.m. Even though Ms. Hankerson had reported to McMillan for the workday, she did not appear at the CFR at the scheduled time. When an "all call" was made over the public address system for her at 3:20 p.m., Ms. Hankerson responded and was informed that should report to the CFR. However, she did not arrive at the CFR until 3:49 p.m. and informed Ms. Thomas, among other things, that the CFR should proceed without her (Ms. Hankerson) because her (Ms. Hankerson's) children were home alone and she (Ms. Hankerson) was leaving at 3:50 p.m., the end of the workday. Ms. Hankerson left, and the CFR proceeded without her. The attendees at the CFR included Ms. Thomas; the assistant principal; and the UTD Representative. The purpose of the CFR was to address Ms. Hankerson's insubordination regarding previously issued attendance directives, and her noncompliance to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13- 4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; and to review her record and future employment status with the School Board. A Summary of the CFR was prepared by Ms. Thomas on April 18, 2011. The Summary for the CFR included a delineation of Ms. Hankerson's absences, reflecting that, since the issuance of the Absence of Worksite Directive on March 7, 2011, through April 15, 2011, Ms. Hankerson had accumulated one-half day absence of leave without pay, authorized; 10.5 days absence of leave without pay, unauthorized; one temporary duty day; and one personal day.4 Furthermore, the Summary for the CFR reflected that, as of April 15, 2011, for the 2010-2011 school year, Ms. Hankerson had accumulated a total of 46 absences.5 The Summary for the CFR contained directives to Ms. Hankerson. The directives included: adherence to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13-4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; to report to work and depart from work daily at the scheduled hours; be in regular attendance at the worksite and on time; adhere to attendance directives previously issued; communicate any intent to be absent directly to the principal and by calling the ARS; the reporting of future absences will be leave without pay, unauthorized, unless documentation showing qualification under the Family Medical Leave Act (FMLA) or other leave of absence is provided; and for imminent absences, leave must be requested and procedures for School Board approved leave implemented, and the FMLA or Americans with Disabilities Act (ADA) requirements, if applicable, must be complied with. Ms. Hankerson was advised that failure to comply with the directives would lead to further review for disciplinary action and would be considered gross insubordination. Further, the Summary for the CFR advised Ms. Hankerson that she would be issued a letter of reprimand. Ms. Hankerson acknowledged receipt of the Summary for the CFR on April 18, 2011, by signing the Summary for the CFR. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the CFR were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a Reprimand. The Reprimand was based on Ms. Hankerson's failure to comply with the previous directive issued to Ms. Hankerson regarding attendance and professional responsibilities. Additionally, the Reprimand advised Ms. Hankerson that any recurrence of the noncompliance might lead to disciplinary action and would be considered gross insubordination. Ms. Hankerson acknowledged receipt of the Reprimand on April 18, 2011, by signing the Reprimand. Ms. Hankerson failed to comply with the directives issued in the Summary for the CFR. On the same day of the Reprimand, April 18, 2011, Ms. Hankerson was absent one-half day, reported as leave without pay, unauthorized. Two days thereafter, she was absent for three consecutive days, April 20 through 22, 2011, each day being reported as leave without pay, unauthorized. Having worked the next school day, April 25, 2011, Ms. Hankerson was absent one-half day on April 26, 2011, reported as leave without pay, unauthorized; absent one-half day on April 27, 2011, reported as leave without pay, unauthorized; and absent one day on April 28, 2011, reported as leave without pay, unauthorized. Additionally, she was tardy for work on April 27, 2011. From April 18 through 28, 2011, she had a total of five and one-half absences. Due to these recent absences and tardiness, on April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences and tardiness were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be absent, tardy, and insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on April 18, 2011, by signing it. The evidence demonstrates that the re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson's absences, tardiness, and early departures continued. On May 2 through 4, 2011, she was absent one day each date; May 5, 6, and 13, 2011, she was absent one- half day each date; and May 16, 2011, she was absent one day; totaling five and one-half days of absences, which were reported as leave without pay, unauthorized. Also, Ms. Hankerson was tardy seven times, on May 5, 6, 10 through 13, and 17, 2011, which were unauthorized. Additionally, she departed McMillan early two times, on May 6 and 13, 2011, which were unauthorized. Due to these recent absences, tardiness, and early departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences, tardiness, and early departures were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on May 17, 2011, by signing it. The evidence demonstrates that the second re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. At the time of the Continued Failure to Comply with Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson had accumulated 57 absences. Additionally, she had multiple instances of tardiness and early departures. A CFR was held by OPS. Persons in attendance included the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD Representative. At the CFR, Ms. Hankerson was provided an opportunity to respond. OPS recommended termination of Ms. Hankerson's employment for gross insubordination and violation of School Board's rules concerning Responsibilities and Duties, Code of Ethics, and Absences and Leaves. After the CFR at OPS, Ms. Hankerson reported for work at McMillan only on June 7, 2011, and June 9, 2011, which was the last day of the 2010-2011 school year. On June 9, 2011, she arrived late, signed-in, and left McMillan shortly thereafter, not remaining at work the entire time set-aside for the last day. From the time that she began at McMillan until the time of the recommendation by OPS, Ms. Hankerson had accumulated 57 absences during the 2010-2011 school year. Of the 57 absences, 18.5 absences occurred during the time that she was assigned to the Region office, not in the classroom. Ms. Hankerson's absences and tardiness negatively impacted the role of Ms. Thomas as the principal and leader of McMillan. Often times, due to Ms. Hankerson's tardiness, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until Ms. Hankerson arrived. Additionally, when Ms. Thomas had no notice that Ms. Hankerson would be absent, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class until a substitute, who had to contacted at the last minute because of no prior notice, arrived; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until the substitute arrived. As a result of the recommendation of OPS, the Superintendent recommended to the School Board the suspension, without pay, and termination of the employment of Ms. Hankerson. At its regularly scheduled meeting held on June 15, 2011, the School Board took action to suspend, without pay, Ms. Hankerson and initiate dismissal proceedings against her from all employment for just cause, including, but not limited to: misconduct in office; gross insubordination; attendance-to-date; and violation of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A-1.213, Code of Ethics, and 6Gx13-4E-1.01, Absences and Leaves. Ms. Hankerson does not refute the absences, the tardiness, or the early departures. For the instances of tardiness, Ms. Hankerson testified at hearing that she would call-in before 8:30 a.m. and state that she was en-route and would be late. The School Board did not refute her assertion. Despite her calling-in, Ms. Hankerson admitted that Ms. Thomas did not tolerate her (Ms. Hankerson's) tardiness and took the action previously mentioned. Ms. Hankerson's testimony is found to be credible. On March 2, 2011, Ms. Hankerson informed Ms. Thomas that arriving late for work at McMillan was unavoidable because she (Ms. Hankerson) took her (Ms. Hankerson's) children to school and she (Ms. Hankerson) lived so far away from McMillan. Additionally, around April 2011, Ms. Hankerson informed Ms. Thomas that she (Ms. Hankerson) was going through a divorce. At hearing, Ms. Hankerson testified that, during March, April, May, and June 2011, she was having marital problems and living sometimes at home and sometimes with her mother in Fort Lauderdale, Florida, which was approximately 28 miles from McMillan. Ms. Hankerson took her children to school, but, when she lived with her mother, she would not leave them at their school in the mornings alone if it was dark. She testified further that she was being investigated by the Department of Children and Families regarding allegations of neglect and being an unfit mother. Additionally, she testified that she was having financial problems. Ms. Hankerson's testimony is found to be credible. However, she did not provide these details to Ms. Thomas. Further, Ms. Hankerson testified that, for April, May, and June 2011, she considered taking leave using the FMLA and contacted her UTD Representative. Ms. Hankerson decided not to take leave using the FMLA. The UTD Representative did not testify at the hearing. Ms. Hankerson's testimony is found to be credible. Again, Ms. Hankerson did not provide this detail to Ms. Thomas. Ms. Hankerson testified that the circumstances that she indicated caused her absences, tardiness, and early departures have been resolved. Her testimony is found to be credible. Before working at McMillan on September 20, 2010, Ms. Hankerson had no prior disciplinary action taken against her by the School Board.
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 Lavonda Hankerson, without pay, for the 2011-2012 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. 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 7th day of November, 2011.
The Issue The ultimate issue in the instant case is whether Respondent should be reassigned from the Dade County School Board's Students at Risk Program at Riviera Middle School to its disciplinary program at J.R.E. Lee Opportunity School.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is 14 years old. He was born in Cuba. Since his arrival in the United States he has lived in Dade County and attended public school. From the middle of December of 1992, until the reassignment that is the subject of the instant controversy, Respondent was a seventh grade student at Riviera Middle School (hereinafter referred to as "Riviera"), a public school operated by the School Board. Prior to enrolling as a student at Riviera, Respondent attended another School Board-operated middle school. His academic performance at this other school was woeful. During the 1991-92 school year, he received a failing grade in every one of his seventh grade classes, except one, his chorus class, in which he received a D. He thus had to repeat the seventh grade the following school year. Respondent's academic performance failed to improve during the first part of the 1992-93 school year. Riviera has a special program for students who are deemed to be at risk of dropping out of school. The program is called the Students at Risk Program or "SARP." The 85 to 100 students in "SARP" are given more individualized instruction and attention in a smaller class setting than are students at the school who are not in the program. Upon enrolling at Riviera, Respondent was assigned to "SARP." Despite the efforts of the administration at Riviera and his "SARP" teachers, Respondent's poor academic performance continued. Respondent was absent from school a considerable amount of time. When he did attend class, he often came unprepared, did little or no work and slept during the lesson. When he was awake, he frequently disrupted the class by doing such things as tapping on his desk or talking to his classmates. On one occasion, Respondent caused a commotion in class by drawing on his shirt. On another occasion, during a math lesson, he used white out to write on the floor near his desk. Still another time, when students in his math class were being tutored, Respondent pounded on the classroom door and continued to do so despite being told to stop by the teacher tutoring the students. In his physical education class, Respondent bullied smaller students. There was at least one instance where such bullying led to a fistfight during class between Respondent and another student, who was bloodied during the altercation. Respondent's disruptive classroom behavior interfered with his teachers' ability to provide instruction to Respondent and to the other students in the class. Valuable classroom time was wasted in attempting to deal with Respondent's misconduct. Respondent's disruptive conduct was the subject of various written referrals his teachers sent to the school administration. The discipline that Respondent received in response to these referrals included in-school suspension. Respondent, however, refused to meet the requirements of the in-school suspension program and therefore was sent home on outdoor suspension. This occurred on two separate occasions. Respondent's teachers counseled Respondent numerous times. They also met with his mother, who indicated that she would do whatever she could to help modify Respondent's behavior in school. The measures taken, however, were to no avail. Respondent's disruptive classroom conduct persisted. The resources available at Riviera to help modify Respondent's behavior having been exhausted, a decision was made to reassign Respondent to the School Board's disciplinary program at J.R.E. Lee Opportunity School (hereinafter referred to as "Lee"). Lee is better equipped than Riviera to deal with problem students such as Respondent. It has on staff more teachers and counselors per student than does even Riviera's "SARP." Furthermore, unlike Riviera, it has a full-time psychologist on staff. Respondent attended Lee for only approximately 12 or 13 days. His mother refused to allow him to return to the school because she was concerned about his safety. She had information that led her to believe that, in the short time that he had been at the school, he had been assaulted on three separate occasions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Dade County School Board enter a final order approving and upholding Miguel Aguero Lopez's reassignment to the disciplinary program at J.R.E. Lee Opportunity School. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993.
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
Findings Of Fact At all times material to the facts alleged in the Administrative Complaint Respondent has been employed by the School Board of Broward County, Florida, as a teacher on continuing contract at Crystal Lake Middle School. Notice of the final hearing was sent to Respondent on January 4, 1983 to her address at 5225 North Dixie Highway, Ford Lauderdale, Florida 33334. The Notice of Hearing which was sent from the Division of Administrative Hearings was not returned as undelivered by the United States Postal Service. The record does not reflect that Respondent made any attempt to contact either counsel for the Petitioner or the Hearing Officer concerning a continuance of these proceedings or providing any explanation for her failure to appear at the final hearing. On May 15, 1980 Ms. Belcher failed to report for work as a classroom teacher without advance notice to the administration of Crystal Lake Middle School as required by school policy. She was absent the entire day and her failure to appear caused considerable administrative difficulty in securing a replacement teacher without prior notification. Her principal at that time, Ms. Jean Webster, sent a memorandum to Ms. Belcher which stated the following: On Thursday, May 15, 1980, you were absent from your job and failed to report that you were going to be absent either to your department head or to me. This is less than responsible action on your part and will be considered an act of insubordination should it happen again. This memo may be considered a written reprimand and will be placed in your personnel folder. The memorandum was received and acknowledged by Ms. Belcher. On October 14, 1982 Respondent was absent from her teaching assignment without leave. She failed to give any prior notice of her absence to the school principal or any other supervisor as required by school policy. The absence of Ms. Belcher was not discovered until one of her students went to another teacher's room to report that Ms. Belcher's unattended students were misbehaving and throwing objects at each other. As a result of the second unauthorized leave of absence without prior notice, her new principal, Mr. Thomas J. Geismar recommended to the Assistant Superintendent of Personnel that Ms. Belcher's contract of employment be terminated. Mr. Geismar's decision to request Ms. Belcher's termination was influenced by her prior conduct on September 23, 1980 when she was discovered by a member of the administration to be falling asleep in front of her class during a regularly scheduled class period. During that time her students were out of control. They made disparaging remarks about Ms. Belcher appearing to be either high or on drugs. The incident was reported to Mr. Geismar who, upon interviewing Ms. Belcher, determined that she was either intoxicated or drugged and was in no condition to teach a class of middle school students. At the time Ms. Belcher attributed her condition to having taken cold medicine. She was sent home in order to recover from whatever was affecting her. On numerous instances, Ms. Belcher fell asleep while on duty in front of her students during the school year 1981-1982. When Ms. Belcher fell asleep her unsupervised students became boisterous and threw things at each other. Prior to falling asleep Ms. Belcher frequently received a back and neck rub from one of her students. After Ms. Belcher's last absence without leave or prior notice on October 14, 1982, it appears that the administration at Crystal Lake Middle School solicited negative comments about Ms. Belcher's teaching behavior. This inference is raised by four letters all dated October 19, 1982 addressed to Mr. Geismar from respectively, J. Kay Betzoldt, Jo Nell Stevenson, Jan Mascia and Walter S. Tilgham. The most serious incident about Ms. Belcher's behavior was raised by Ms. Betzoldt. During fifth period in the last quarter in the 1981-1982 school year, Ms. Betzoldt saw Ms. Belcher in front of her class receiving a "back rub" from one of Ms. Belcher's students. The student was observed standing behind Ms. Belcher reaching forward massaging her breasts. It appeared that Ms. Belcher was not aware of what was happening. When the student realized that Ms. Betzoldt was observing him, he moved his hands to the shoulders of Ms. Belcher. Ms. Betzoldt did not report the incident to the school administration until her letter of October 19, 1982. The contents of the other teachers' letters dated October 19, 1982, were corroborated by the authors' live testimony at the final hearing. They support the allegations against Respondent that on numerous occasions she has slept in the presence of her students when she should have been teaching them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Broward County, Florida, enter a Final Order dismissing Ms. Saundra Belcher as a continuing contract teacher and cancelling her contract of employment. DONE and RECOMMENDED this 6th day of April, 1983, 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 6th day of April, 1983. COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Saundra Belcher 5225 North Dixie Highway Fort Lauderdale, Florida 33334 William T. McFatter Superintendent of Schools Broward County School Board 1320 Southwest 4th Street Fort Lauderdale, Florida 33312 Donald J. Samuels, Chairman School Hoard of Broward County 1320 Southwest 4th Street Fort Lauderdale, Florida 33312
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
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 sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue The basic issue in this case is whether there exists "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to terminate the professional services contract between the School Board of Gadsden County, Florida, and John C. Buckley. The School Board seeks such a termination on the basis of allegations that John C. Buckley engaged in various forms of inappropriate conduct during the course of a science fair trip. Briefly summarized, the allegations are that John C. Buckley (a) permitted students to smoke cigarettes, (b) purchased alcoholic beverages in the presence of a student, (c) consumed alcoholic beverages in the presence of students, (d) provided alcoholic beverages to students and permitted them to consume such beverages, and (e) inappropriately touched one or more female students. At the hearing, the parties presented the testimony of several witnesses, including the testimony of Respondent. Following the hearing, a transcript of the proceedings was filed and all parties thereafter filed timely proposed recommended orders. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. All findings of fact prepared by the parties are specifically addressed in the appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the evidence received at the hearing and the admissions of the Respondent, I make the following findings of fact: At all times material, the Respondent, John C. Buckley, was employed as a science teacher at the James A. Shanks High School in Gadsden County, Florida. At all times material, the Respondent was employed under a professional service contract as defined in Section 231.36(3)(a), Florida Statutes (1987). The Respondent accompanied a group of Gadsden County high school students to Jacksonville to attend a science fair on April 13, 1988, through April 16, 1988. There were three other adults present during the trip; Oscar Rogers, a school bus driver employed by the Gadsden County School Board, Cynthia B. Clark, a science teacher from Carter Parramore Middle School, and Betty Williams, a chaperon. On the way to Jacksonville, the following three female students rode with the Respondent in his personal car: Ginger Godwin (10th grade), Twanna Scott (12th grade), and Yvonne Dunson (12th grade). The other students and adults rode in a school bus. During the drive to Jacksonville, two of the students in Respondent's car were smoking cigarettes. The Respondent knew these two students intended to smoke in his car and he did not prohibit either student from smoking in his car. During the evening of April 13, 1988, the Respondent drove in his car to a liquor store in Jacksonville, where he purchased some beer, some bottled wine coolers, and a small bottle of bourbon. Twanna Scott, a student, rode in Respondent's car to and from the liquor store, but she did not get out of the car when the Respondent went into the liquor store. During the evening of April 13, 1988, the Respondent consumed several beers, probably three or four. Some of the Respondent's consumption of beer took place in the presence of some of the students, specifically at a time when the students and the adults on the trip were eating pizza for their evening meal. The Respondent did not, on April 13, 1988, or any other time, provide any alcoholic beverages to any of the students, nor did he permit any of the students to consume alcohol. Later, on the evening of April 13, 1988, the Respondent entered the motel room in which Ginger Godwin, Twanna Scott, Yvonne Dunson, and Precious Anderson were staying. At the time the Respondent entered the room, Godwin, Scott, and Dunson, and several other people were also in the room. During the time the Respondent was in the room a door that connected to the next room was open. The next room was the room in which Cynthia B. Clark, a teacher, was staying with two other female students. While the Respondent was in the room, Twanna Scott complained of a stiff back and the Respondent sat on the edge of the bed and gave Twanna Scott a brief back rub. At the time of the back rub, the only other people in the room were Ginger Godwin and Yvonne Dunson. Following the back rub, the Respondent left the room. The Respondent did not touch any part of Twanna Scott's body other than her back. The Respondent did not touch either of the other female students who were in the room. On the evening of April 14, 1988, while the Respondent was away from the motel with some of the students, Ginger Godwin, Twanna Scott, and Yvonne Dunson told Cynthia B. Clark, one of the teachers, that they wanted to spend some time watching television in the motel room of some insurance salesmen they had recently met at the motel. Mrs. Clark agreed to let them do so, subject to some ground rules which included: the door to the salesmen's motel room had to remain open, the curtains had to remain open, and the girls had to check with Mrs. Clark every 30 minutes or so. At about 9:45 p.m. during the evening of April 14, 1988, Mrs. Clark walked by the salesmen's room and observed Ginger Godwin drinking a beer. Mrs. Clark told Ginger Godwin that she did not approve of such conduct and Ginger Godwin acted indifferent to the disapproval. Mrs. Clark told the girls that they needed to be back in their own rooms by 10:30 p.m. Sometime between 10:30 and 10:45 p.m., Mrs. Clark returned to the salesmen's room and tried to get the three girls to return to their own room. They essentially ignored her and remained in the salesmen's room. The Respondent returned to the motel sometime shortly after 11:00 p.m., at which time Mrs. Clark told him about the three girls in the insurance salesmen's room. Mrs. Clark and the Respondent then went to the salesmen's room and the Respondent told the girls they had to return to their own room. After some argument, the three girls eventually complied. Later in the evening the salesmen were down tapping on the window of the girls' motel room and the girls were talking to the salesmen through an open window. When this was brought to the Respondent's attention, he went to the girls' room, told them they should go to bed and tried to get the salesmen to leave. The three girls and the insurance salesmen all rebuffed the Respondent's efforts, and the Respondent ultimately had to call the motel security guard. At about that time, Ginger Godwin got into a heated argument with the Respondent, during the course of which there was some yelling and shouting back and forth. Apparently there were further heated arguments the next day about the salesmen. At some point in the arguments, Ginger Godwin threatened to retaliate against the Respondent as a result of his interference with the relationship between the three girls and the insurance salesmen. The threats made to the Respondent included statements such as, "I know how to get you," "I'm going to take care of your job Monday," and "I'll get even with you and I'll take care of you Monday when I get back." Upon returning home, Ginger Godwin, Yvonne Dunson, and Twanna Scott reported to school authorities that the Respondent had engaged in improper conduct during the science fair trip. They accused the Respondent of, among other things, improper sexual touching of Dunson and Scott. The allegations of improper sexual touching were false. School rules prohibit the use of tobacco substances at school campuses, activities, or field trips. School rules prohibit the consumption of alcoholic beverages on School Board premises, at school activities, and on school field trips. School rules prohibit the consumption of alcoholic beverages by teachers in the presence of students, during school field trips. When supervising field trips, teachers have 24-hour supervisory responsibility over the students on the field trip. The Respondent had been previously warned to curtail his smoking in front of students by Janey DuPont, an Administrator employed by the Petitioner. Respondent had also been specifically warned by Janey DuPont not to consume alcoholic beverages in the presence of students. The Respondent knew or should have known that he was not supposed to be drinking alcoholic beverages in the presence of students under his supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative charges against the Respondent Buckley be dismissed and that the Respondent be reinstated as a professional service contract teacher with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all findings of fact proposed by the parties to this case. Findings proposed by Petitioner: Paragraph 1: Accepted Paragraphs 2 and 3: Rejected as unnecessary recitation of procedural details. (Findings have been made incorporating the substance of the conduct admitted by the Respondent.) Paragraphs 4 and 5: Rejected as unnecessary. Paragraphs 6, 7, 8, 9, and 10: Accepted. Paragraph 11: Rejected as irrelevant to the issues in this case. Paragraphs 12, 13, 14, 15, 16, and 17; Accepted. Paragraphs 18 and 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, and 23: Accepted, with some unnecessary details omitted. Paragraphs 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Covered in preliminary statement. Paragraph 29: Accepted. Paragraphs 30 and 31: Rejected because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Specifically, there is no persuasive evidence that the Respondent made several attempts to bite Twanna Scott on her ear. Ms. Scott's testimony to that effort is unconvincing. The Respondent's denial is accepted. Paragraphs 32, 33, 34, and 35: Rejected as not supported by credible evidence. I reject as unworthy of belief the testimony that the Respondent provided alcoholic beverages to three students. I accept the Respondent's denial that he provided alcoholic beverages to any student. Paragraph 36: Rejected as irrelevant because the Respondent has not been charged with this conduct and, in any event, there is no evidence that Respondent consumed sufficient alcohol to impair his ability to drive safely. Paragraph 37: First fourteen words rejected as contrary to the greater weight of the evidence; I have rejected the testimony that Respondent provided alcoholic beverages to any students. Next seven words rejected as irrelevant and unnecessary because there has been no showing that the Respondent consumed sufficient alcoholic beverages to impair his judgment. The remainder of this paragraph is accepted. Paragraph 38: First sentence rejected as vague and inaccurate; the subject student was wearing a robe and was on the bed watching television. Second sentence accepted in substance with a few clarifying details. Paragraphs 39, 40, and 41: Rejected as contrary to the greater weight of the evidence. In view of all the circumstances, the Respondent's denials and the Respondent's version of what occurred is more believable than the testimony of Yvonne Dunson, Twanna Scott, and Ginger Godwin. Yvonne Dunson, Twanna Scott, and Ginger Godwin are not credible witnesses. Paragraph 42: Rejected as inaccurate; the girls made a report when they returned, but it was a false report. Findings proposed by the Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance. Paragraphs 7 and 8: Rejected as constituting summaries of testimony rather than proposed findings of fact. Further, the subject matter of these paragraphs is irrelevant because in the hand holding in the car is not the "inappropriate" touching with which the Respondent has been charged. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraphs 11, 12, 13, and 14: I have not made any findings on the subject matter addressed by these paragraphs because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: First sentence accepted. Second sentence rejected as irrelevant. Paragraphs 17 and 18: Rejected as constituting summaries of testimony rather than proposed findings of fact. On this subject, I have found that the greater weight of the evidence is consistent with the Respondent's denial. Paragraph 19: Accepted in substance. Paragraphs 20, 21, and 22: Rejected as constituting summaries of testimony rather than proposed findings of fact. (The summarized testimony has not been credited.) Paragraph 23: First sentence accepted. Second sentence rejected as not supported by persuasive evidence; I seriously doubt that Ginger Godwin told the other two girls anything about any "incidents" on Wednesday night. I believe the three girls (Ginger Godwin, Twanna Scott, and Yvonne Dunson) fabricated their stories at a later date. Paragraph 24: Rejected as constituting a summary of testimony rather than proposed findings of fact. I have, however, made findings of fact consistent with the Respondent's version of this incident. Paragraph 25: Accepted in substance. Paragraph 26: Rejected as subordinate and unnecessary details. Paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37: Accepted in substance. COPIES FURNISHED TO: CLAUDE B. ARRINGTON, ESQUIRE RUDEN, BARNETT, MCCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 101 NORTH MONROE STREET MONROE-PARK TOWER, SUITE 1010 TALLAHASSEE, FLORIDA 32301 PHILIP J. PADOVANO, ESQUIRE POST OFFICE BOX 873 TALLAHASSEE, FLORIDA 32302 ROBERT H. BRYANT SUPERINTENDENT OF SCHOOLS SCHOOL BOARD OF GADSDEN COUNTY POST OFFICE BOX 818 QUINCY, FLORIDA 32351
Findings Of Fact Introduction At all times relevant hereto, respondent, Blondell Williams, was a fifth grade teacher at Poinciana Park Elementary School (PPES) in Miami, Florida. She was under a continuing contract as an elementary teacher for petitioner, School Board of Dade County (Board). She has been a teacher in the school system since 1981. On March 18, 1987 the Board voted to suspend Williams without pay effective that date for "misconduct in office, willful neglect of duty and gross insubordination." Its decision resulted in Williams requesting an administrative hearing. She has remained suspended from her job without pay during the pendency of this proceeding. The charges are based upon three counts of alleged illicit misconduct as set forth in the Amended Notice of Charges issued on February 13, 1988. The alleged illicit conduct generally includes consumption of an alcoholic beverage on campus, sleeping in class, fraudulently obtaining a lunch, excessive tardiness and absenteeism, repeatedly failing to follow various orders, and demonstrating incompetency in the classroom. These charges will be discussed separately hereinafter. Consumption of Alcoholic Beverages On February 2, 1987 respondent left campus during lunch hour to visit her father who was ill. When she returned, she was required to sign in on a roster which was in the reception area outside the principal's office. Williams entered the office area and went to the sign-in roster maintained by the principal's secretary, Delois Parker. Sitting next to Parker was Nena Brown, a system aide, and Mary White Blue, a teacher's aide. Williams was carrying a clear plastic cup containing a light pink beverage which she had brought from her car. The cup was then approximately one-quarter filled. After signing in, and while turning around, Williams accidentally spilled the beverage on Brown's leg and hand and on the carpet. Although Brown did not detect the nature of the beverage, Blue and Parker immediately detected the smell of alcohol. Another teacher, Silvia Munoz, then entered the room and also detected the smell of alcoholic beverages. At about the same time, Parker called the principal, Lawrence H. Crawford, out of his adjoining office to observe the incident. After examining the carpet, Crawford concluded that the beverage contained alcohol. Thereafter, he questioned Williams, who admitted she had drunk about a quarter of a cup of "White Mountain Cooler" taken from a bottle in her car. Crawford instructed Williams to bring the bottle to his office, and after examining the label on the bottle, he confirmed it was an alcoholic beverage. At hearing, Williams acknowledged that she had brought a cup of the beverage on campus during school hours and consumed a small amount. According to Williams, the bottle had been left in her car by a friend from the night before, but she denied knowing it contained any alcohol. This contention is not accepted as being credible since the beverage had an alcoholic odor, the label on the bottle reflected its alcoholic content, and Williams acknowledged she knew it was an alcoholic beverage at a conference for the record held on February 3, 1987. Accordingly, it is found that Williams was in the possession of, and consumed, an alcoholic beverage on campus during duty hours. However, the charge that Williams was "under the influence of an alcoholic beverage" while on duty was not established. Sleeping in Class On a warm spring day morning in 1986, the assistant principal of PPES, Terrance Armbruister, had an occasion to visit Williams' classroom. His visit was prompted by Crawford who had directed Armbruister to check out complaints that Williams was sleeping in class. After knocking on her classroom door, he unlocked it, entered and observed Williams with her head resting on her desk. He approached her but Williams did not move. Finally, she raised her head in a startled fashion as if she had just awoken. Armbruister then instructed her to wash her face and refresh herself. On or about March 28, 1986 P. J. Harden, an assistant principal in charge of curriculum at PPES, was monitoring the classroom next to Williams. The two classrooms were divided by a partition. Because of noise caused by students in Williams' classroom, Harden had difficulty monitoring the class. He pulled the partition open and observed Williams with her head on her desk asleep. He watched her sleep for approximately five minutes until a student shook Williams and awoke her. Williams apologized to Harden and promised it would not happen again. According to Harden, this was respondent's reply on every occasion that she was caught sleeping. On the afternoon of November 11, 1986 Harden again had an occasion to visit Williams' classroom while escorting a prospective teacher around the school. He found her asleep even though she was supposed to be teaching a class. To avoid embarrassment, Harden declined to allow the guest to enter the classroom. He then awoke Williams and told her to report to the principal's office. Harden stated that he found Williams sleeping in her classroom on a number of other occasions although he was unable to give specific dates. On each occasion, she was sent to the principal's office and an administrator would be assigned to cover her classroom. At no time did Williams ever give an excuse to Harden for her actions other than saying she had a second job which prevented her from getting a regular night's sleep. No Free Lunches The Amended Notice alleges that during school year 1986-87, Williams was guilty of "fraudulently obtaining and consuming school provided, student lunches." This charge stems from an incident on or about December 11, 1986 when respondent approached the cashier at the school cafeteria and told the cashier to give her a lunch without charge and to record it as being a free lunch given to a student. The cashier complied with Williams' instructions. By chance, the principal learned of this and confronted respondent with the charge. Williams admitted she had obtained an unauthorized free lunch. Her only excuse was that she was short of funds and had seen another teacher do it on one occasion. At Crawford's direction, Williams reimbursed the school for the meal. Excessive Tardiness and Absenteeism The school day at PPES began at 8:15 a.m. each day and lasted until 3:20 p.m. Teachers were expected to be in their classrooms by 8:20 a.m. so that they could greet their students before classes began at 8:30 a.m. Williams was aware of this requirement and was reminded of it from time to time by her supervisors. In addition, teachers were given thirty minutes for lunch. If a teacher left campus during lunch hour, he or she was expected to sign in and out on an attendance roster maintained in the principal's office. Even if a teacher left campus during lunch hour, the lunch period was still only thirty minutes, and any additional absence by a teacher required authorization from the principal's office. Williams was aware of this policy and understood that a failure to comply with these instructions was a violation of school policy. Under school policy, and in accordance with instructions in the teacher's handbook, a teacher was obligated to call the principal's secretary if he or she was going to be late to school. This call was expected to be made prior to 8:00 a.m. so that the principal could assign an administrator or other teacher to the classroom until the teacher reported to work. In addition, if a teacher knew he would be absent from school the following day, he was expected to telephone the principal's secretary before 2:00 p.m. on the day prior to the absence. If the absence was not known until after 2:00 p.m., the teacher was expected to telephone an assigned number between 7:00 p.m. and 10:00 p.m. that evening, or at 7:00 a.m. on the day of the absence. This enabled the school administration to timely obtain a substitute teacher. Williams was aware of these requirements. During school year 1984-85, Harden was the assistant principal in charge of curriculum at PPES. His responsibilities included counseling and meeting with teachers who were tardy or absent. On or about October 19, 1984 Harden met with Williams concerning her "continuous" tardiness in reporting to school each morning. She was told that the school day for teachers began at 8:15 a.m. Despite this warning, Williams was late to work on October 19, November 29 and December 4, 1984. This prompted another meeting by Harden and respondent on December 4, 1984. Williams was given a memorandum advising her that she had to be at school by 8:15 a.m. each morning. At the meeting, Williams explained she had a second job which lasted late into the night and enabled her to catch only a "catnap" in the early morning hours. Harden instructed her to set her priorities in order and to adhere to the school attendance requirements. Because of continuing tardiness and absences from work, Williams received another memorandum from Harden on January 24, 1985. The memorandum cited Williams for leaving campus on January 12 and 17, 1985 without authorization and being late to work on January 17. The two held a conference for the record on January 31, 1985 concerning these problems. On March 7, 1985 Crawford sent Williams a memorandum stating that he had "serious concerns about (her) tardiness and (her) habit of illegally leaving the campus during the school day." Another conference for the record was held on March 15. At the conference Williams again gave an excuse of having a second job as well as having problems with a boyfriend. She was told that she must comply with attendance requirements and not let the second job interfere with her primary job of teaching. On July 18, 1985 Williams received a memorandum from Harden for reporting late to work on July 17 and missing a homeroom assignment. The memorandum advised her to immediately remedy the situation and offered to help her if assistance was needed. Despite her poor attendance record, Williams was given an "acceptable" rating and recommended for employment in her annual evaluation rendered on May 17, 1985. There was, however, a comment that a "conference for the record for tardies" had been held during the school year. Williams' attendance and punctuality record did not improve the following school year. She was given at least five memoranda between July, 1985 and January, 1986 concerning her tardiness or absences. She was counseled by Armbruister on October 22, 1985 and specifically told to review the faculty handbook concerning attendance requirements. Armbruister spoke with her again concerning the same problems on November 12, 1985. Because the problem persisted, school officials felt compelled to hold a conference for the record on January 27, 1986. At that time, Williams attributed her difficulties to a second job, problems with a boyfriend, a "peeping tom" in the neighborhood who kept her from sleeping, and no telephone. She admitted she was wrong and indicated she would try to do better. Despite this meeting, Williams took an unauthorized leave at lunch on January 31. This prompted a conference with Armbruister the same day to discuss the latest incident. Williams was given a memorandum advising her to review a summary of the conference for the record held four days earlier and to follow the school's recommendations. In school year 1986-87, Williams' erratic attendance and lack of punctuality continued. As of December 16, 1986, which was roughly halfway through the school year, Williams was late or absent forty-three out of seventy- five workdays. Because of this continuing pattern, a conference for the record was held by respondent and Crawford on October 9, 1986. Williams was found to be deficient in the area of professional responsibility and placed on prescription until December 19. This meant she had to fulfill certain conditions by the end of the prescriptive period. Among other things, Williams was required to arrive daily at work by 8:00 a.m., to timely telephone the office about any absences, to submit a written statement explaining each absence, to report to an administrator or office staff member upon arrival to school each morning, to have up-to-date emergency lesson plans, and to read the teacher contract and teacher assessment handbook. In the month of January, 1987, Williams was tardy on eleven mornings and absent from work on six days. In February, she was tardy the morning of February 2. This was also the day that Williams brought the alcoholic beverage on campus during lunch hour. An emergency conference for the record was held the following day, which was her last day at PPES. Failure to Follow Orders The Amended Notice alleges that, during school years 1984-85, 1985-86 and 1986-87, Williams committed acts of gross insubordination, including . . . repeatedly failing to follow ordered procedures . . . for reporting absences, . . . procedures concerning her morning arrivals at school, . . . procedures documenting absences, . . . procedures concerning lesson plans, records and student report cards, . . . orders to stay awake while (performing) . . . assigned duties, . . . orders concerning tardiness after lunch, (and) . . . orders to not leave the school campus other than during her lunch period. After being placed on prescription on October 10, 1986, Williams was required to fulfill certain requirements enumerated in finding of fact 18. However, she failed to notify an administrator or office staff member upon arrival at school each morning from October 13 through December 15 except for the week of October 13. She also failed to submit a written explanation of her absences on October 27 and 29, November 3, 18, 24 and 25, and December 2 and 3, 1986. She failed further to timely advise the school of absences on October 21 and 29, November 24 and December 2 and 3, 1986. All such failures were in direct contravention of the written prescription. Although Williams contended such violations were not willful, it is found they were intentional. Other than a reference to Williams' failure to timely prepare lesson plans during an undisclosed part of school year 1985-86, and a prescription requiring her to prepare emergency lesson plans in October, 1986, the Board did not establish that Williams repeatedly failed to prepare lesson plans, report cards and other unnamed "records." Williams was observed sleeping in class on two specific occasions during the school years in question. On a third occasion, an administrator observed her with her head down on her desk as if asleep but could not say for sure that she was sleeping. Assistant principal Harden also said Williams was caught sleeping on a number of other occasions but did not identify the dates. There being only three specific times on which Williams was found sleeping, it is found that no direct disobeyel of orders occurred on the part of respondent as to sleeping in class. Williams was given repeated instructions since 1984 to be punctual for work each day. Despite these orders, she continued to be late on numerous occasions between September 1984 and February, 1987. She also failed to timely advise the school concerning her absences or tardiness on many occasions in spite of specific instructions to do so. Finally, after having received a number of oral and written directives, she nonetheless left school on several occasions for more than thirty minutes during the lunch hour without authorization. Incompetency Respondent taught a Chapter One class at PPES. This class is comprised of students needing additional training and instruction in basic skills such as reading and mathematics. It is smaller than a regular class so that the teacher may give the students added instruction and attention. Because of respondent's repeated absenteeism and tardiness over the course of the school years, the children in respondent's class were denied the continuity of their instructional program. This also meant the lesson plans could not be carried out as prepared on those days on which she was late. Therefore, the students continually received a reduced period of instruction. This in turn impaired her effectiveness as a teacher. Respondent's Case In 1982, respondent's father became gravely ill and was thereafter bedridden at her mother's home until his death in 1987. According to Williams, her mother cared for him during the day and Williams took her turn at night. She also visited him on occasion during her lunch hour. As a result, she was required to spend long waking hours during the night with her father and to overextend her lunch hour while visiting him during the day. Williams attributed her attendance problems and her falling asleep to the demands of her father. However, Williams never told her superiors of this problem nor did she obtain authorization to leave campus during lunch hour. Just prior to her separation from PPES Williams acknowledged to school officials that she had a drinking problem. She also agreed to attend a clinic for problem drinkers. At hearing she denied having such a problem and said her earlier admission was given solely for the purpose of saving her job. However, she acknowledged attending a drinking clinic for a few days in early 1987. At the school's request, she also took a physical examination in February, 1987. The results are not of record. Williams contended that other teachers were late but were not written up. However, no proof as to this contention was submitted. The Teacher Assessment and Development System (TADS) is the standard measure of teacher performance in Dade County. There was no evidence of any negative TADS evaluation of respondent despite her repeated tardiness and absences from school. Respondent's last TADS evaluation covered the period up to and including March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office, gross insubordination and incompetency as set forth in this Recommended Order and that she be dismissed as an employee of petitioner. DONE AND ORDERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1456 Petitioner: Rejected as being unnecessary. Covered in finding of fact 1. Covered in findings of fact 5, 17 and 25. Covered in findings of fact 12-15 and 25. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in finding of fact 9. Covered in finding of fact 3. Covered in finding of fact 25. Covered in findings of fact 25 and 27. Respondent: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Rejected as being unnecessary. Accepted to the extent the same is covered in the findings; the remainder is rejected as being contrary to the more credible and persuasive evidence. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29 Rejected as being contrary to the more credible and persuasive evidence. Rejected since respondent's deficiencies constituted incompetency. Rejected as being irrelevant. Rejected since respondent admitted knowing that the beverage was alcoholic in nature. Partially covered in finding of fact 3. Rejected as being contrary to the evidence. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Rejected since respondent admitted having a drinking problem during her conference with Dr. Gil on February 3, 1987. Rejected since the Board's basis for dismissing respondent was based on other factors. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being contrary to the more credible and persuasive evidence. COPIES FURNISHED: Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3 175 Fontainebleau Boulevard Miami, Florida 33172 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399
