10-000266TTS Lake County School Board vs. Robert Jenner Status: Closed Recommended Order on Friday, April 30, 2010.

Summary: Respondent was willfully absent from duty without leave in violation of school board rule. Recommend dismisal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-0266

)

ROBERT JENNER, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on March 3,

2010, in Tavares, Florida, before Barbara J. Staros,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749-1357

For Respondent: Thomas Doolan, Esquire

Leigh Tucker, P.A.

Post Office Box 801

Minneola, Florida 34715

STATEMENT OF THE ISSUE

The issue is whether Respondent's employment should be

terminated by Petitioner.

PRELIMINARY STATEMENT

In a letter dated December 17, 2009, Susan Moxley, Ed.D.,

Superintendent of Lake County School District (the "District")

advised Respondent, Robert Jenner (Respondent) that because he

had not reported to his teaching position beginning December 2,

2009, and had not submitted a leave request, he was considered

absent without approved leave in violation of School Board

Policy 6.511. Dr. Moxley also stated in the letter that she

intended to recommend the termination of Respondent's employment

at the meeting of Petitioner Lake County School Board (School

Board) scheduled on January 11, 2010.

In a letter dated January 11, 2010, Respondent requested an

administrative hearing.

On or about January 19, 2010, the School Board referred the

case to the Division of Administrative Hearings.

The undersigned entered a Notice of Hearing on January 28,

2010, scheduling the hearing for February 23, 2010. Pursuant to

an ore tenus motion for continuance made during a telephonic

motion hearing held on February 3, 2010, the final hearing was

re-scheduled for March 3, 2010. The case was heard as

scheduled.

At hearing, Petitioner presented the testimony of three

witnesses: Gregory Smallridge, Linda Shepherd, and Laurie

Marshall. Petitioner offered Exhibits A through H which were

admitted into evidence.

Respondent testified on his own behalf and presented the

testimony of six other witnesses: Laurie Marshall, Gregory

Smallridge, Tina Storr, Tina Rizzo, Gail Rager, and Sharon

Gainesley. Respondent offered Exhibits A through K, which were

admitted into evidence.

A two-volume Transcript was filed on March 18, 2010.

The parties timely filed Proposed Recommended Orders which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material, the School Board was the

constitutional entity authorized to operate, control, and

supervise the public schools in Lake County, Florida.

2. Respondent, Robert Jenner, began working as a

technology education teacher for the School District in

August 2004, and has held a professional services contract since

2007. Technology education is the current-day version of shop

class or industrial arts.

3. At all times material to this proceeding, Respondent

taught at Carver Middle School (Carver). Linda Shepherd is the

principal and Greg Smallridge is the assistant principal of

Carver.

4. While not a member of the local teachers’ union,

Mr. Jenner is an instructional employee and, therefore, a member

of the collective bargaining unit between the School Board and

the Lake County Education Association. Respondent is also

subject to all School Board policies regarding instructional

personnel.

5. All classrooms at Carver have a traditional classroom

with a lab connected to it. Respondent’s lab area contained

several technology workstations for the students, and contained

specialized equipment, e.g., a lathe and a robotic arm.

6. Typically, class would begin in the traditional

classroom area, and then the class and Respondent would go into

the lab area. Because of the configuration of the classroom and

the lab, as well as the nature of the course, there were

instances when Respondent could not see every student every

minute of class.

7. During October and November 2009, three incidents

occurred in Respondent’s classroom involving a female student.

These incidents involved inappropriate behavior, including

behavior of a sexual nature with a male student. The female

student received discipline for two of the three incidents

ranging from an in-school suspension to an out-of-school

suspension.

8. Two of the incidents were observed not by Respondent,

but by a teacher who was teaching in an adjacent classroom.

These incidents raised the issue of whether Respondent was

adequately supervising his classroom.

9. Mr. Smallridge became aware of these issues and on

November 23, 2009, he, Ms. Shepherd, and Respondent met and

visited Respondent’s classroom to discuss steps to correct the

problems concerning supervision of students.

10. On November 30, 2009, a meeting took place which

included Mr. Smallridge, Respondent, Dr. Maggie Teachout, and

Dr. Teachout’s assistant. The purpose of the meeting was for

Dr. Teachout to visit Respondent’s lab to make suggestions and

recommendations as to ways in which supervision of the students

could be improved in light of the configuration of the classroom

and lab. 1/

11. At some point, Mr. Smallridge determined that

completing an Appraisal II for Respondent was the appropriate

course of action. An Appraisal II takes place due to problems

or concerns regarding a teacher that have arisen outside of an

actual classroom observation. An Appraisal II is part of the

Instructional Personnel Performance Appraisal System (IPPAS) for

teachers, which is a policy adopted by the School Board. An

Appraisal II notes deficiencies, places the teacher on notice

about these deficiencies, and gives direction to the teacher as

to what steps should be taken to correct the deficiency.

12. On December 2, 2009, Ms. Shepherd, Mr. Smallridge, and

Respondent met in Ms. Shepherd’s office during Respondent’s

planning period for the purpose of completing the Appraisal II.

During such a meeting, it is standard practice to complete the

form during the course of the meeting. Mr. Smallridge had a

blank Appraisal II form and intended to complete the form during

the course of the meeting. However, during the meeting and

before the Appraisal II form had been completed, Respondent

stated that he would not sign the form. Mr. Smallridge informed

Respondent that if he did not sign the form, it would be

considered insubordination.

13. Blank signature lines appear at the bottom of the

Appraisal II form for the signatures of the teacher and the

person assessing the teacher. Underneath the blank for the

teacher’s signature appears the following: “Indicates receipt

of appraisal and not necessarily agreement with the contents.”

Mr. Smallridge read this to Respondent, but Respondent still

refused to sign the form and stated that he was going to quit.

14. Further, paragraph V (5) of the Appraisal II form

provides a space for the teacher’s response with the notation

“Attach additional sheets if desired.”

15. Ms. Shepherd and Mr. Smallridge asked Respondent to

reconsider his announcement that he would quit. However,

Respondent went back to his classroom, and collected his

personal items. He returned to Ms. Shepherd’s office, placed

his keys on Ms. Shepherd’s desk and left school. This was the

last time Respondent worked at Carver.

16. While Respondent returned to Ms. Shepherd’s office to

turn in his keys, Ms. Shepherd spoke to Respondent again and

left school during the school day. Ms. Shepherd instructed her

secretary to call for a substitute. Ms. Shepherd stayed with

Respondent’s class until the substitute arrived so that the

class would not be unattended.

17. At no time did Ms. Shepherd or Mr. Smallridge tell

Respondent that he was terminated.

18. Respondent did not request leave prior to leaving

school, or at any time thereafter.

19. Ms. Shepherd next saw Respondent on December 15, 2009,

when he came to school on payday. She again asked him to

reconsider his decision. He responded that he would let her

know his decision that Thursday, but did not do so.

20. On December 16, 2009, Ms. Shepherd wrote a memorandum

to Respondent which states as follows:

This letter is written to put you on notice

that I am requesting the Superintendent to

take your termination to the Board based on

your absence without leave since December 2,

2009. This violates School Board Policy

6.511, Absence without Approved Leave.

I base this letter on the facts that on

Wednesday, December 2, 2009 at 10:20am, we

(Mr. Smallridge, you and I) were prepared to

write an Appraisal II for the lack of

supervision that occurred in your classroom

on Wednesday, November 18, 2009. At that

time, you stated that you were not going to

sign the Appraisal II document and if we

(Mr. Smallridge and I) were going to write

you up for the incident that occurred in

your classroom, you were handing in your

keys.

I asked you to sign a resignation and you

stated that people walk off the job everyday

without signing a resignation. You handed

in your keys and left campus approximately

12:15pm. You have not reported to work

since that date.

21. On December 17, 2009, Superintendent Moxley sent a

letter to Respondent informing him that he was considered absent

without approved leave in violation of School Board Policy

6.511. The letter informed Respondent that she would be

recommending his termination of employment to the School Board

and gave him notice of his right to a hearing regarding his

dismissal.

22. Respondent sent a letter to Dr. Moxley requesting a

hearing on his termination, which gave rise to this proceeding.

23. At hearing, Respondent explained his reasons for not

signing the Appraisal II: he refused to sign the Appraisal II

because he did not want his name “besmirched”; he believes that

the school administration has not adequately dealt with the

female student’s discipline regarding her inappropriate behavior

in his class and felt he was somehow being made a scapegoat; he

was concerned that there would be some type of criminal

implications regarding the female student’s behavior and, “if I

signed that document, I would have been brought into it.”

24. Prior to the events that transpired in November and

December 2009, Respondent had received satisfactory evaluations

in the area of classroom supervision.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2009).

26. The superintendent of the School District has the

authority to make recommendations for dismissal regarding school

employees pursuant to Subsection 1012.27(5), Florida Statutes

(2009).

27. The School Board has the authority to dismiss school

board employees pursuant to Subsections 1001.42(5) and

1012.22(1)(f), Florida Statutes (2009).

28. The School Board has the burden of proof in this

employee dismissal proceeding and must meet that burden by a

preponderance of the evidence. See McNeill v. Pinellas County

School Board , 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett

v. Sumter County School Board , 644 So. 2d 1178, 1179 (Fla. 5th

DCA 1995).

29. District school boards have authority to "adopt rules

governing personnel matters." See § 1012.23(1), Fla. Stat.

(2009).

30. Petitioner's Rule No. 6.511, entitled “Absence without

Leave”, states as follows in relevant part:

(1) Administrative and instructional-

Any member of the administrative or

instructional staff who is willfully absent

from duty without leave shall forfeit

compensation for the time of the absence and

the employee’s contract shall be subject to

cancellation by the School Board. . . .

31. This rule is consistent with Section 1012.67, Florida

Statutes (2009), which states that any district employee who is

willfully absent from duty without leave shall forfeit

compensation for the time of such absence, and his employment

shall be subject to termination by the district school board.

32. The preponderance of the evidence establishes that

Respondent was willfully absent from duty without leave in

violation of School Board Rule 6.511. Respondent’s subjective

perception that he was being made a scapegoat or would somehow

be brought into a legal proceeding that did not exist does not

justify walking out of school during a school day, leaving the

school to find supervision for his students. Moreover, the

Appraisal II form clearly indicates that a teacher’s signature

only signifies receipt, not agreement with its contents.

Finally, the Appraisal II form provides space for a teacher to

provide written reasons for disagreement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating

Respondent's employment.

DONE AND ENTERED this 30th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2010.

ENDNOTE

1/ Dr. Teachout did not testify. The record is not clear as to

Dr. Teachout’s title or duties.

COPIES FURNISHED :

Stephen W. Johnson, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749-1357

Thomas Doolan, Esquire

Leigh Tucker, P.A.

Post Office Box 801

Minneola, Florida 34715

Dr. Susan Moxley

Superintendent Lake County Public Schools

201 West Burleigh Boulevard

Tavares, Florida 32778

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 Order in this case.