07-002486TTS Seminole County School Board vs. Derek E. Andrews Status: Closed Recommended Order on Thursday, September 20, 2007.

Summary: Respondent, a school teacher, was appropriately discharged for unauthorized absence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 07 - 2486

)

DEREK E. ANDREWS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice, a formal hearing was held in this case

on August 31, 2007, in Sanford, Florida, before Jeff B. Clark, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent, Derek E. Andrews, should be terminated

for his absence without leave from April 12, 2007, until the end

of the 2006 - 2007 school year.

PRELIMINARY STATEMENT

On or about April 27, 2007, Respondent received a letter

from Dr. Bill Vogel, Superintendent of Seminole County Public

Schools, advising him that he, as Superintendent of Seminole

Cou nty Public Schools, would be recommending to the School Board

that it terminate Respondent's employment based on Respondent's

"repeated and continued absence from duty without approved leave

from April 2, 2007, to date [April 27, 2007]." On May 22, 2007,

Respondent requested an administrative hearing by directing an

e - mail to Karen Ponder, c lerk of the Seminole County School

Board.

On June 4, 2007, Petitioner forwarded a Petition for

Termination to the Division of Administrative Hearings and

served same on Respondent. The Petition for Termination charges

that Respondent's contractual responsibilities are controlled by

the collective bargaining agreement between the Seminole

Education Association, Inc., and the School Board of Seminole

County, Florida ("the collective bargaining agreement") and that

Respondent was absent without approved leave f r om April 2, 2007,

through May 24, 2007. May 27, 2007, was the last duty day for

teachers for the 2006 - 2007 school year. The collective

bargaining agreement states that "any teacher who is willfully

absent from duty without leave shall . . . be subject to

termination . . . ."

On June 4, 2007, an Initial Order was sent to both parties.

On June 13, 2007, the case was scheduled for final hearing on

July 16, 2007, in Sa nford, Florida. At Respondent's request,

the case was continued and rescheduled for August 31, 2007. On

August 28, 2007, Respondent requested another continuance , which

was denied.

The final hearing was conducted on August 31, 2007.

Petitioner presented two witnesses: Dr. Shaune Storch and John

Reichert. Petitioner's Exhibits 1 through 8 were admitted in

evidence and marked accordingly. Official notice was taken of

Sections 1012.33 and 1012.667, Florida Statutes (2006).

Respondent did not appear at th e final hearing.

Petitioner timely filed a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing in this matter the following Findings of Facts are

made:

1. Respondent, Derek E. Andrews, i s a school teacher

employed by the School Board of Seminole County, Florida.

2. William Vogel is , and has been , Superintendent of

Public Schools for the School District of Seminole County,

Florida, for all times material to the occurrences relevant to

thi s case .

3. Pursuant to Section 4, Article IX, Florida

Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33,

1001.41, and 1001.42, Florida Statutes (2006), the School Board

of Seminole County, Florida, is the governing board of the

School District of Seminole County, Florida.

4. The relationship of the parties is controlled by

Florida Statutes, the collective bargaining agreement, and

School Board policies.

5. Respondent's supervising principal for the 2006 - 2007

school year was Dr. Shaune Storch.

6. Respondent had been granted a leave of absence that

expired on March 30, 2007.

7. Respondent's leave for the period March 16, 2007,

through March 30, 2007, was an extension of a previous leave as

requested by Respondent.

8. Subsequent to the expirat ion of Respondent's leave on

March 30, 2007, Respondent's supervising principal attempted to

contact Respondent regarding his intentions for the remainder of

the 2006 - 2007 school year.

9. Respondent did not meet with his supervising principal

or otherwise respond to her letter of April 5, 2007.

10. Article XVI, Section I.2. of the collective bargaining

agreement , provides that any teacher who is willfully absent

from duty wit hout leave shall forfeit compensation for the time

of the absence and be subject t o discharge and forfeiture of

tenure and all other rights and privileges as provided by law.

11. Respondent was absent without leave from April 2,

2007, through the end of the school year.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter. § 120.57(1),

Fla. Stat. (2007).

13. The burden of proof is on Petitioner to establish by a

preponderance of the evidence the allegations for termination

for just cause that are alleged in the Petition for T ermination

dated June 4, 2007. McNeill v. Pinellas County School Board ,

678 So. 2d 476 (Fla. 2d DCA 1996).

14. Because the statute and rules providing grounds for

terminating Respondent's contract are penal in nature, they must

be construed in favor of th e employee. See Rosario v. Burke ,

605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

Professional Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

15. The referenced collective bargaining agreement states,

in pertinent part, as follows:

ARTICLE XV I - LEAVES AND TEMPORARY DUTY

17. Caution

2. Any teacher who is willfully absent from

duty without leave shall Forfeit

compensation for the time of such absence

and be subject to discharge and forfeiture

of tenure and all other privileges as

provided b y law.

16. Subsection 1012.33(1)(a), Florida Statutes (2006),

states,

Each person employed as a member of the

instructional staff in any district school

system shall be properly certified pursuant

to s. 1012.56 or s. 1012.57 or employed

pursuant to s. 1012.39 and shall be entitled

to and shall receive a written contract as

specified in this section. All such

contracts, except continuing contracts as

specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just

cause includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involvi ng moral turpitude.

17. "Just cause" is some substantial shortcoming

detrimental to the employer's interests, which the law and a

sound public opinion recognize as a good cause for dismissal. A

discharge for just cause will be upheld if it meets two

cri teria: (1) it is reasonable to discharge the employee

because of misconduct; and (2) the employee had notice, express

or fairly implied, that such conduct would be grounds for

discharge. In R e: Grievance of Towel , 6 6 5 A.2d 55 (Vt. 1995).

The criteria for determining just cause for

dismissal must be based on merit. The

standards must be job - related and in some

rational and logical manner touch upon

competency and ability. All that just cause

requires is that the cause for dismissal not

be religious or po litical , but concerned

solely with the inefficiency, delinquency,

or misconduct of the employee. Civil

Service Commission v. Poles , 573 A.2d 1169

(Pa. Commw. Ct. 1990).

18. Respondent was on notice that his willful absence

without leave could lead to hi s dismissal.

19. Respondent's absence from his teaching

responsibilities was willful, without proper authorization , and

is just cause for his termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED th at a final order be entered finding

Respondent, Derek E. Andrews, guilty of the allegations stated

in the Petition for Termination and that his employment be

terminated.

DONE AND ENT ERED this 20th day of September , 2007 , in

Tallahassee, Leon County, Florid a.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of September , 2007 .

COPIES FURNISHED :

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Derek E. Andrews

Post Office Box 62

Tangerine, Florida 32777 - 0062

Dr. Bill Vogel

Superintendent of Schools

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Honorable Jeanine Blomberg

Interim Commissioner of Education

Depa rtment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Ord er in this case.