13-001489TTS Broward County School Board vs. Christine Lindstrand Status: Closed Recommended Order on Thursday, October 17, 2013.

Summary: The evidence established that Respondent abandoned her job. Recommend terminating Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 1489 TTS

CHRISTINE LINDSTRAND,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes,

before Jessica E. Varn, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH). The

hearing was held on July 30 , 2013, by video teleconference at

sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert McKee, Esquire

1718 East Seventh Avenue

Suite 301

Tampa, Florida 33605

For Respondent: Adrian Alvarez , Esquire

Deborah Klauber, Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

STATEMENT OF THE ISSUE

W hether Ms. Lindstrand violated s ection 1012.67, Florida

Statutes (2012), or whether there is just cause to terminate

Ms. Lindstrand.

PRELIMINARY STATEMENT

On March 7, 2013, the Broward County School Board (School

Board) notified Ms. Lindstrand of its intent to te rminate her

employment as a teacher at Cypress Bay High School. At a meeting

held on March 18, 2013, the School Board voted to terminate

Ms. Lindstrand. Ms. Lindstrand timely requested an

administrative hearing, and the School Board referred the matter

to DOAH on April 23, 2013. The final hearing was scheduled for

J uly 30, 2013 . On July 19, 2013, the School Board filed a Motion

for Leave to File Administrative Compl ai nt and Motion for

Continuance . On the same day, Respondent filed a Memorandum in

Opposition to Petitioner's Motion for Leave to File

Administrative Co mplaint and Motion for Continuance.

On July 23, 2013 , the undersigned entered an Order which

denied the School Board's Motion for Continuance , and granted the

Motion for Leave to File an Administrative Complaint. The

Administrative Complaint charged Ms . Lindstrand with violations of

s ection 1012.67, Florida Statutes (2012); Florida Admin istrative

Code Rule 6A - 5.056(2) (c) , alleging that Ms . Lindstrand 's acts

constitute misconduct in office; rule 6A - 5.056(3)(a ) , alleg ing

inefficiency as a result of excessi ve absences or tardiness; and

rule 6A - 5.065(5), alleging willful neglect of duty.

At the hearing, the School Board presented the testimony of

Lorenzo Calhoun, Gracie Diaz, Marianela Estripeaut , and Rebecca

Johnson. Ms. Lindstrand testified on her own behalf, and

presented the testimony of Kathleen Lindstrand , and Tom

Lindstrand. Petitioner's Exhibits 1 - 10 and Respondent's

Exhibits 1 - 8 were admitted into evidence pursuant to stipulation

of the parties.

The one - volume Trans cript was filed with DOAH on

September 20, 2013. Both parties timely filed p roposed

r ecommended o rders, which were considered in the preparation of

this Recommended Order.

Unless otherwise noted, all statutory referenc es are to

Florida Statutes (2012 ).

FIND ING S OF FACT

1. The School Board is charged with the duty to operate,

control and supervise all free public schools within Broward

County, Florida.

2. At all times relevant to this matter, the School Board

employed Ms. Lindstrand as a math teacher at Cypress Bay High

School. Ms. Lindstrand had started her employment with the

School Board in 1996.

3. In June 2011, Ms. Lindstrand was arrested for driv ing

under the influence (DUI) . She hired an attorney and contested

the charge. Her trial was scheduled for February 27 and 28,

2013.

4. Ms. Lindstrand requested and had been approved for leave

from February 26 through March 1. She requested the le ave for

February 26 through the 28th due to the trial, and the leave on

March 1st was for the intended purpose of attending her

grandfatherÓs 90th birthday party. She never inform ed the school

or her parents that she had a trial; rather, she requested the

leave for Ðpersonal reasons.Ñ

5. Ms. Lindstrand did not anticipate that she would be

found guilty of the DUI charge, or that she would, upon being

found guilty, be sentenced immediately to a period of

incarceration. She had made no plans for that possibility.

6. On February 28th, in the evening, Ms. Lind strand called

her father , Thomas Lindstrand, notifying him that she had been

through the DUI trial, had been found guilty, and had been

immediately incarcerate d. Mr. Lindstrand informed his wife, and

told her to call the school the next morning.

7. Ms. LindstrandÓs mother called the schoo l the morning of

March 1st, and spoke with Ms. Estripeaut , an assistant p rincipal

at Cypress Bay High School. She informed Ms. Estripeaut that

Ms. Lindstrand was in jail, and would remain in jail for a period

of six weeks.

8. Because Ms. Lindstrand was responsible for teaching

seven math classes, which included classes where students are

required to pass e nd - of - year tests in orde r to graduate,

Ms. Es tripeaut was tasked with the responsibility of find ing a

certified substitute teacher , with a math background , who could

serve for a lengthy period of time.

9. Once a qualified substitute te acher was sele cted,

Ms. Estripeaut and the substitute teacher me t with parents and

students in order to reconcile grades in the grade books.

Students reported that they had turned in assignments that were

missing from the grade books, and parents were concerned about

the studentsÓ preparation for the end - of - year tests.

10. On March 5th, Mr. Lindstrand called the school and

spoke with Rebecca Johnson, who works as a Leave Specialist for

the School Board. Ms. Johnson sent Mr. Lindstrand a leave

request form , which he properly completed and filed on March 6,

2013.

11. On appro ximately March 7th, Ms. Estripeaut contacted

Mr. Lorenzo Calhoun, an Employee Relations Specialist for the

School Board, and informed him that Ms. Lindstrand had been

absent from work fo r three days without approved leave.

Mr. Calhoun recommended that Ms. LindstrandÓs name be sent to the

School Board for termination , because b eing absent from work for

more than three days without approved leave constitutes

abandonment under School Board policy.

12. Prior to making hi s recommendation to Ms. Estripeaut ,

Mr. Calhoun confirmed with the Leave Department that

Ms. Lindstrand had not been approved for leave for the three or

more days that she had already been absent from work. When he

ca lled the Leave Department, she had not been approved for any

leave.

13. On March 7, 2013, a letter from the school, signed by

the p rinci pal but prepared by Ms. Estripeaut , informed

Ms. Lindstrand that her name was being forwarded to the School

Board with the recommendation that she be terminated. It also

informed her that her name would be placed on the meeting agenda

for the School BoardÓs meeting on March 18, 2013.

14. The letter was sent to the following address:

Ð1408 NE 5 Ct. #4, Fort Lauderdale, Florida, 33301.Ñ

Ms. Lindstra nd had lived at this address until August of 2012, at

which point she moved to a different address, but never informed

the school. Although Ms. Lindstrand had asked the post office to

forward her mail to her new address, she never received this

letter.

15. On March 8, 2013, an almost identical letter was sent

to Ms. Lindstrand from the Staffing Department, letting her know

that her name was being forwarded to the School Board for

termination , and that the S chool Board would meet on March 18,

2013. This letter was also sent to the only address on record

for Ms. Lindstrand - - an address where she no longer resided.

According to Ms. Lindstrand, she never received this letter

either.

16. The Chief Human Re sources Officer, Gracie Diaz,

supervises the staffing department, leave s department, and

employee relations department. On approximately March 7th,

Ms. Diaz was informed that Ms. Lindstrand was incarcerated, and

that the Cypress Bay High School p rincipal and the staffing

department were moving forward with the termination process. She

was also informed that Ms. Lindstrand had requested personal

leave.

17. Ms. Diaz spoke with the School BoardÓs general counsel,

and together they reviewed the collect ive bargaining agreement

between the Broward Teachers Union and the School Board, which

contained the following provision:

Length of Leave: An employee who has been

employed for more than three (3) years in

Broward County may be granted upon request,

pers onal leave without pay for a period not

to exceed two (2) years for reasons not

provided elsewhere in this Agreement. The

employee shall be returned to duty at the

beginning of the next school year following

the leave. Such leave shall require the

approv al of the Superintendent.

18 . Ms. Diaz took the leave request form, as well as the

letters from the p rincipal and the staffing department regarding

the termination process to the Superintendent. Given that the

collective bargaining agreement leave provision is permissive in

nature, Ms. Diaz recommended to the Superintendent that he deny

the leave request, be cause she felt it was inappropriate to grant

personal leave due to incarceration. She also recommended that

the School Board go forward with termination.

19 . The School Board met on March 18, 2013, and voted to

terminate Ms. LindstrandÓs employment.

20 . By letter dated March 22, 2013, the Leaves Department

notified Ms. Lin dstrand that her request for personal leave had

been denied by the Superintendent.

21 . By letter dated April 9, 2013, Ms. Lindstrand was

notified that the School Board had met and had approved the

recommendation for her termination.

22 . Ms. Li ndstrand was released from jail on April 6, 2013.

She receive d these final two letters at the post office, a few

days after being released.

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the subject matter and p arties to this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

24. In an administ rative proceeding to dismiss a member o f

the instructional staff, the S cho ol Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty. Sch. Bd. ,

664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). The preponderance of

the evidence standard requires proof by "the greater weight of

the evidence" or evidence that "more likely than not" tends to

prove a certain proposition. Gross v. Lyons , 763 So. 2d 276, 280

n.1 (Fla. 2000) .

25. In the Adminis trative Complaint, the School Board

asserts that Ms. Lindstrand is guilty of abandoning her job,

which, pursuant to section 1012.67, is a ground for termination.

Section 1012.67 states as follows:

Absence without leave - Any district school

board employee w ho is willfully absent from

duty without leave shall forfeit compensation

for the time of such absence, and his or her

employment shall be subject to termination by

the district school board.

26. The School Board met its burden to prove that

Respond ent was absent with out leave starting on March 4 ,

201 3. In view of the fact that Ms. Lindstrand 's absence was the

result of her DUI arrest and subsequent imprisonment , termination

is an appropriate remedy. See Lee County School Board v.

Simmons , Case No. 03 - 1498 (Fla. DOAH July 15, 2003) (recommending

termination of a school board employee pursuant to section

1012.67, Florida Statutes, when absence was due to

incarceration) ; Miami - Dade County School Board v. Holmes , Case

No. 02 - 282 0 ( Fla. DOAH Dec. 10, 20 02) (recommending termination

of a school board employee who was absent without leave as a

result of her incarceration); Stokes v. Choice , Case No. 89 - 2022

( Fla. DOAH Jan. 2, 1990) (rejecting school board employee's

argument that his incarceration was not "willful" and therefore

not a violation of the predecessor to Section 1012.67 because the

employee "willed the series of acts which set in motion the chain

of events which eventually resulted in his incarceration ").

27 . In light of the determination above that the School

Board can terminate Ms. Lindstrand based on her absence without

approved leave, it is unnecessary to determine whether the School

Board can also terminate Ms. Lindstrand for Ðjust causeÑ based

upon misc onduct, inefficiency for excessive absences, or willful

neglect of her duties.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that the Broward County School Board issue

a final order terminating Ms. Lind strandÓs employment.

DONE AND ENTERED this 17th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October , 2013 .

COPIES FURNISHED:

Robert F. McKee , Esquire

Kelly and McKee, P.A.

Suite 301

1718 East Seventh Avenue

Post Office Box 75638

Tampa, Florida 3 3675 - 0638

Adrian Alvarez , Esquire

Deborah Klauber, Esquire

Haliczer, Pettis, and Schwamm, P. A.

Seventh Floor

One Financial Plaza

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0442

1 1

Robert Runcie, Superintendent

Broward County School Board

600 S outheast Th ird Avenue

Fort Lauderdale, F lorida 33301

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0442

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.