03-001958 Sarasota County School Board vs. Mark Cook Status: Closed Recommended Order on Wednesday, January 7, 2004.

Summary: Respondent`s unilateral resignation without Petitioner`s approval is ineffective. Furthermore, Petitioner proved just cause to terminate Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1958

)

MARK COOK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 24, 2003, in Sarasota, Florida, before William R.

Pfeiffer, a designated Administrative Law Judge of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert K. Robinson, Es quire

Bowman, George, Scheb, Toale

& Robinson, P.A.

2750 Ringling Boulevard, Suite 3

Sarasota, Florida 32437

For Respondent: Andrew Froman, Esquire

Brown, Clark, Christopher & Demay

Sarasota City Center, Suite 1100

1819 Main Street

Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issues in this case are whether Petitio ner provided

reasonable notice to Respondent of its intent to suspend without

pay and terminate Respondent's employment, and whether

Respondent could unilaterally resign to retire while the

Superintendent's pending recommendation to terminate Respondent

wa s before Petitioner.

PRELIMINARY STATEMENT

Petitioner contractually employed Respondent as a teacher

and elementary school principal for 29 years. On May 2, 2003,

Respondent was found guilty of two counts of Sexual Battery upon

a Child by a jury in Saraso ta, Florida, and was immediately

taken into custody.

On May 5, 2003, Petitioner's Superintendent sent Respondent

a letter to his home address attempting to notify him that she

intended to recommend suspension without pay and eventual

termination of his e mployment based upon his recent criminal

conviction involving moral turpitude. Petitioner's letter

further sought to advise Respondent that he had a right to

contest the proposed termination.

On May 7, 2003, Respondent's wife, the holder of

Respondent's power of attorney, signed the acknowledgement of

receipt for Petitioner's letter. On May 9, 2003, Respondent's

wife tendered Respondent's written resignation and retirement

from employment. Petitioner refused to accept his resignation

and declined to pa y him $60,000 in sick leave.

On May 19, 2003, Respondent filed a petition to challenge

Petitioner's action to terminate and requested a hearing.

Petitioner forwarded the request to DOAH to assign an

Administrative Law Judge.

At the final hearing, Petition er presented the testimony of

one witness, and introduced Exhibits 3 through 9 and 13

through 15, all of which were admitted into evidence.

Respondent presented the testimony of one witness, and

introduced Exhibits 1 through 5 and 7 through 11, which were

admitted into evidence.

The transcript of the hearing was not filed. Both parties

timely filed their Proposed Recommended Orders, which have been

duly considered.

FINDINGS OF FACT

1. Petitioner, the Sarasota County School Board, employed

Respondent as a teacher and principal of Garden Elementary

School in Venice, Florida, for 29 years.

2. Respondent was employed under an annual contract

throughout each year of employment, the last of which began

July 1, 2002, scheduled to end June 30, 2003.

3. In February 2002, Respondent was arrested and charged

with seven counts of Sexual Battery by a Person over Eighteen

(18) Years of Age upon a Child Eleven (11) Years or Younger.

4. On March 5, 2002, Respondent was suspended with pay by

Petitioner. While s uspended with pay, Respondent's annual

contract expired on June 30, 2002, and was renewed by Petitioner

for the 2002 - 2003 school year. Respondent remained suspended

with pay and did not perform any services for Petitioner during

the 2002 - 2003 school year.

5. On or about April 28, 2003, Respondent completed, but

did not file, an application to retire from the Florida State

Retirement System and executed a Durable Family Power of

Attorney to his wife, Mrs. Cook. The power of attorney

empowered Mrs. Cook to make decisions on behalf of Respondent

for all personal, legal, and financial matters.

6. On May 2, 2003, Respondent was found guilty of two

counts of Sexual Battery by a Person over Eighteen (18) Years of

Age upon a Child Eleven (11) Years or Younge r by a jury in the

Circuit Court for the Twelfth Judicial Circuit, in and for

Sarasota County, Florida. Respondent was immediately taken into

custody and placed in the Sarasota County Jail.

7. Three days later, on May 5, 2003, notwithstanding

Responden t's incarceration in the Sarasota County Jail,

Superintendent Hamilton misdirected a certified letter to

Respondent's home address, attempting to advise him of her

intent to recommend to Petitioner on the following day, May 6,

2003, that Respondent be susp ended without pay. Hamilton's

letter further sought to notify Respondent that she intended to

recommend that he be terminated from his employment at the

School Board meeting scheduled for May 20, 2003, due to his

recent conviction.

8. On May 6, 200 3, Petitioner suspended Respondent without

pay.

9. On the following day, May 7, 2003, Mrs. Cook received

Superintendent Hamilton's certified letter dated May 5, 2003,

but did not open it nor become fully aware of its contents until

a later time. Respon dent was and remains incarcerated. There

is no evidence that he ever received actual notice of the

Superintendent's certified letter of May 5, 2003.

10. In addition to the untimely and misdirected notice,

the Superintendent's certified letter failed to advise

Respondent that he could contest the proposed suspension without

pay. Respondent's wife credibly testified that if she had

received notice of Petitioner's intent prior to the School

Board's meeting of May 6, 2003, she would have attended the

meeti ng and attempted to submit Respondent's resignation.

11. On May 7, 2003, Petitioner mailed a follow - up letter

to Respondent's home address, via standard U.S. mail, attempting

to notify him that the Board had suspended him without pay.

Respondent remained incarcerated and did not receive this

letter. It is unknown whether Mrs. Cook ever received the

letter or when she became aware of its contents.

12. On May 9, 2003, Mrs. Cook invoked her power of

attorney on behalf of Respondent and submitted his resi gnation

from employment to Petitioner, effective immediately, in order

to retire. On that day, Mrs. Cook attempted to hand - deliver

Respondent's retirement/resignation letter to Petitioner's

personnel office, along with Respondent's previously executed

ret irement papers, however, the personnel office staff refused

to accept the paperwork. Instead, Mrs. Cook was immediately

directed to speak with Allen Wilson, Executive Director of Human

Resources and Labor Relations for Petitioner, but he was

unavailable.

13. Later that same day, Mrs. Cook met with Mr. John

Zoretich, Petitioner's Director of Instruction/Curriculum.

Mr. Zoretich agreed to receive Respondent's letter of

resignation/retirement from Mrs. Cook, but instructed her to

deliver Respondent's exec uted retirement papers to the payroll

department. Mrs. Cook complied, but again, payroll staff

refused to accept the retirement papers and instructed her to

contact Mr. Wilson. Mrs. Cook's repeated efforts to communicate

with Mr. Wilson were unsuccessful .

14. Petitioner's personnel and payroll departments refused

to accept Respondent's executed retirement papers due to

Petitioner's pending consideration of Superintendent Hamilton's

termination recommendation.

15. The parties agree that the amount of terminal pay at

issue, based upon Respondent's effective daily rate of pay, is

approximately $60,000.00.

16. On May 12, 2003, Mrs. Cook forwarded Respondent's

previously executed retirement application by facsimile and U.S.

Mail to the Florida Retirement System. The Florida Retirement

System acknowledged its receipt in correspondence dated June 18,

2003, indicating a date of receipt of May 13, 2003, an

employment termination date of May 3, 2003, and a retirement

date of June 2003.

CONCLUSIONS OF LAW

Juri sdiction

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings pursuant to Sections 120.569, 120.57(1), and

120.60(5), Florida Statutes (2003). 1

18. Petitioner, pursuant to Section 1012.23(1), Florida

Statutes, has the authority, except as provided by law or the

State Constitution, to adopt rules governing personnel matters.

Discharge of Employment

19. Pursuant to Section 1012.33(6)(b), Florida Statutes,

any member of the district administrative staff may be suspended

or dismissed at any time during the term of the contract for the

"conviction of any crime involving moral turpitude." The

evidence demonstrates that Respondent's conviction sufficiently

and horrifically serves as just cause for his termination.

Notice of Intent to Suspend Without Pay and Terminate

20. Pursuant to Section 6.37 of the Sarasota School Board

Rules, a suspended employee is entitled to a hearing if the

suspension is without pay. In the case of a dismissal action,

the employee "shall be entitled to a hearing on the merits of

the case in accordance with the provisions of Chapter 120,

Administrative Procedures Act." Id.

21. In both instances, the School Board shall provide the

affected employee with reasona ble notice and further advise the

employee "that in the event that a written request for a hearing

is not received by the Superintendent within ten (10) days after

receipt of said notice, that the employee waives his/her right

to a hearing." Id. In addit ion, in the event reasonable notice

is not provided by the Superintendent, "the employee shall be

deemed to have requested a hearing." Id.

22. A county school board is a state agency falling within

the Administrative Procedure Act for purposes of quasi - j udicial

administrative orders. Sections 120.50 and 120.57, Florida

Statutes. Where an employee can only be suspended or terminated

for cause, they are deemed to have a contractual property

interest in their job. See Sublett v. District School Board of

S umpter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

23. Section 6.37 of Petitioner's Rules specifically

provides Respondent the right to a procedural hearing before he

can be suspended without pay or terminated and has attached a

protected property interest and a right to due process in such

an event. Accordingly, there must be adherence to established

procedures to effectuate a change of status of a contract holder

under terms of a continuing contract as a school board employee.

Burns v. School Bo ard of Palm Beach County , 283 So. 2d 873, 874

(Fla. 4th DCA 1973).

24. Petitioner was obligated to provide Respondent with

reasonable notice of its intended suspension without pay and

termination, the basis for its action, his right to a hearing on

the r ecommended action, and a reasonable time frame in which to

prepare.

25. The evidence establishes that Petitioner's

notification was plagued with irregularities and failed to

provide Respondent with reasonable notice of its intention to

suspend him witho ut pay. First, Petitioner's notice of the

suspension without pay action was untimely. Respondent's wife

received notice of Petitioner's intent to suspend one day after

Petitioner had already acted. Respondent was denied the

opportunity to address Petiti oner and formally contest the

Superintendent's suspension recommendation.

26. Second, Petitioner's notice relating to suspension was

inadequate in that it failed to fully inform Respondent of his

rights to request a hearing on the Superintendent's

recomm endation to suspend him without pay and the respective

time frame. In other words, Respondent was not provided a

"clear point of entry into the administrative process." See

Steinman v. The Florida State University Board of Regents , 414

So. 2d 1102, 1104 (Fla. 1st DCA 1982)(actual notice of agency

action which does not inform petitioner of his right to request

a hearing and the time limits for doing so is inadequate to

trigger commencement of the administrative process).

27. Finally, the evidence demonstr ates that Petitioner's

notice to suspend was misdirected. Petitioner's notice was

incorrectly sent to Respondent's home address and not to the

location of his incarceration. There is no evidence that

Respondent actually received the written notice. Peti tioner's

mistake does not relieve it from its responsibility to provide

proper service and reasonable notice. See Brooks v. Department

of Professional Regulation , 578 So. 2d 381 (Fla. App. 1st Dist.

(1991))(Department of Professional Regulation failed to give

adequate notice prior to revoking licenses of a nurse who

indicated a desire to attend and present evidence on her own

behalf; nurse was imprisoned at time of hearing and there was no

evidence she was provided any notice prior to the meeting).

28. While Respondent ultimately became aware of the notice

and timely requested a hearing to contest his termination, he

was denied that same right to contest his suspension without pay

due to Petitioner's mistake. Petitioner's suggestion at hearing

that Resp ondent could have, after the fact, appealed his

suspension without pay within 30 days of that action is not

persuasive.

Terminal Pay

29. Pursuant to Section 6.912 of the Sarasota County

School Board Rules, "The Board will provide terminal pay to an

empl oyee at early or normal retirement or to his/her beneficiary

if service is terminated at death." Terminal pay shall include

"one hundred percent (100%) of the employee's accumulated leave

days, not to exceed 180 days . . ." Furthermore, the "employee

mus t leave the employment of the School Board directly into the

Florida Retirement System in either early or normal retirement

status."

The Tendered Resignation

30. Petitioner's right to terminate its employee and

Respondent's right to resign to retire emplo yment are at issue

in this case.

31. Respondent argues that he cannot be terminated since

he timely and properly resigned to retire from his employment

before being notified of Petitioner's intent to terminate him

and is therefore entitled to his te rminal pay. Petitioner, on

the other hand, contends that any flawed notice is immaterial

since Respondent's resignation was not approved by the Board, is

ineffective, violates his employment contract, and is tantamount

to abandoning his job. Petitioner a rgues that Respondent is not

entitled to his terminal pay.

32. Pursuant to Section 6.52 of the Sarasota County School

Board Rules, "Any administrative or instructional staff member

who wishes to resign shall submit his/her resignation in writing

addressed to the School Board. The letter of resignation shall

state the reasons for the resignation and the desired effective

date." A resignation for the existing school year "may be

accepted during the contractual period of service; provided that

an acceptable reason is given and a qualified and satisfactory

replacement is available." Id. A resignation for the ensuing

school year "shall be accepted without question if submitted

prior to June 20 of the current school year." Id.

33. While Petitioner's policy on retirement does not

specify the precise method or manner in which employees must

execute their retirement, Section 6.62 makes a clear distinction

between the Board's acceptance of an immediate resignation and

an ensuing resignation.

34. In addition, the parties' employment contract

specifically provides:

3. The Employee agrees to perform the

obligations attaching to the position for

which employed as prescribed by the School

Board for the full period of service for

which this contract is made, in no event to

be absent from duty without leave or to

leave his/her position without first being

released from this contract by the School

board, to observe and to enforce faithfully

the laws, rules, regulations, and policies

lawfully prescribed by legally cons tituted

school authorities insofar as such laws,

rules regulations, and policies are

applicable to the position held by him.

35. Respondent tendered his resignation on May 9, 2003,

during the contractual period of service, stating:

I, Mark Cook, hereby r etire from my

employment with the School Board of Sarasota

County effective immediately. I am no

longer at liberty to perform my duties as a

school administrator.

36. Pursuant to Section 6.52 of Petitioner's Rules and the

parties' contractual obligati ons, Respondent's resignation

required Board action and approval to be effective. In fact,

courts have generally held that an employee, under contract,

having tendered a written resignation to his principal or

superintendent, may regard it as ineffective or at least

avoidable until it is acted upon by the school board. See Hart

v. School Board of Wakulla County , 340 So. 2d 121 (Fla. 1st DCA

1976).

37. Similarly, the Sarasota County School Board may regard

Respondent's resignation as ineffective until it acts upon it.

Respondent's tendered resignation for the existing school year

constituted an offer to resign and required Petitioner's action.

Petitioner possessed the contractual right to accept or deny

Respondent's offer whether or not Respondent's r eason for

resignation was acceptable and there was a satisfactory

replacement, and it was required to take formal action.

38. In sum, Respondent was arrested and charged with

multiple counts of sexual battery upon a minor. For an entire

year, Responden t was suspended with pay. Eventually, Respondent

was tried, convicted, and imprisoned. Upon his conviction,

Respondent was unable to complete the terms of his employment

contract so he attempted to resign and collect $60,000 worth of

sick pay. Petitione r refused to accept Respondent's resignation

and sought termination.

39. Accordingly, Petitioner scheduled consideration of

Respondent's termination and resignation tender for the May 20,

2003 public meeting agenda for action. Notwithstanding the

misdi rected notice relating to termination, Respondent timely

requested and was provided an administrative hearing on the

issue.

40. Petitioner has clearly demonstrated just cause to

terminate Respondent's employment. Respondent's acts were

depraved. His con viction involved moral turpitude and he

materially violated the terms of his employment contract.

Petitioner is not obligated to accept, nor has it accepted

Respondent's resignation. Accordingly, it is ineffective and

without force.

RECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter an order finding:

1. Respondent has materially violated the terms of his

employment contract.

2. Petitioner has just cause to terminate Respondent's

emp loyment.

3. Respondent's offer to resign has not been accepted by

Petitioner and is ineffective until accepted or denied by

Petitioner.

4. Respondent is not entitled to terminal pay.

5. Petitioner failed to provide Respondent with reasonable

notice of i ts intent to consider the Superintendent's suspension

recommendation at the public meeting, and Respondent was

deprived his substantive right to contest the recommendation and

the Board's determination.

6. Respondent is entitled to remain on paid suspensi on

from May 6, 2003, the date of the effective suspension, through

May 20, 2003, the date of Petitioner's properly noticed public

meeting to terminate him.

DONE AND ENTERED this 7th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 January, 2004.

ENDNOTE

1/ All citations are to Florida Statutes (2003) unless

otherwise indicated.

COPIES FURNISHED :

Andrew Froman, Esquire

Brown, Clark, Christophe r & Demay

Sarasota City Center, Suite 1100

1819 Main Street

Sarasota, Florida 34236

Robert K. Robinson, Esquire

Bowman, George, Scheb, Toale

& Robinson, P.A.

2750 Ringling Boulevard, Suite 3

Sarasota, Florida 32437

Gene Witt, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3304

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne, Commissioner of E ducation

Department of Education

325 West Gaines Street

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Re commended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.