Dunham v. Highlands County School Bd.
| Decision Date | 17 March 1995 |
| Docket Number | No. 94-01130,94-01130 |
| Citation | 652 So.2d 894 |
| Parties | 99 Ed. Law Rep. 684, 20 Fla. L. Weekly D675 Marian D. DUNHAM, Appellant, v. HIGHLANDS COUNTY SCHOOL BOARD, Appellee. |
| Court | Florida District Court of Appeals |
Mark Herdman of Herdman & Sakellarides, P.A., Palm Harbor, for appellant.
James F. McCollum of McCollum & Johnson, P.A., Sebring, for appellee.
Marian Dunham appeals a final order of the Highlands County School Board terminating her continuing contract of employment as a teacher. Dunham contends that the school board erred by rejecting the recommended order issued by a hearing officer pursuant to section 120.57, Florida Statutes (1993). We agree and reverse.
By letter dated April 8, 1993, Dunham was advised that her employment with the school board was being terminated because of absence without leave, willful neglect of duty, and misconduct in office. She was also advised that she owed the school district $3,272.09 for duties which were not performed and $343.14 for excessive sick leave taken. 1 These sums were withheld from her final paycheck. At Dunham's request, a formal hearing was conducted by an administrative hearing officer. After considering all of the testimony and evidence presented, and receiving proposed findings of fact, conclusions of law and recommended penalties from both parties, the hearing officer issued a recommended order that concluded the school board did not prove willful neglect of duty and further that it did prove that Dunham was absent without leave, but only for six hours on March 17, 1993. The hearing officer's order recommended that the school board refund Dunham $3,125.09 2 and reinstate her, without back pay, to a continuing contract at her former rate of pay as of the first day of school after January 1, 1994.
The school board rejected the hearing officer's recommendation and terminated Dunham for "willful neglect of duty and absence without leave," directing that the sum of $3,272.09 be withheld from her final check. In its final order, the school board adopted the findings of fact and conclusions of law in the recommended order with the exception of part or all of 14 paragraphs. In rejecting some of the hearing officer's findings, the school board stated that these findings "do not fairly represent the evidence," that they are "an unfair characterization of the evidence," and that they are "not based upon competent substantial evidence." The final order also contained a recital that "[t]he testimony on page 422 line 23 is sticken [sic] as leading." In the conclusions of law, the school board's order states, in part:
Petitioner [school board] has proved the existence of a duty for the Respondent [Dunham] to be on campus during class time and proved the Respondent has willfully neglected such duty; that the Respondent was willfully absent without leave as described in the charges; that Petitioner has demonstrated a right to withhold the sum of $3,272.09 representing Respondent's hourly rate of $24.50 multiplied by the hours during which she was absent without leave; and that School Board Policy 2.31 authorizes termination for absence without leave without any minimum absence.
It is clear that the school board's view of the evidence relevant to the issues in dispute was contrary to that of the hearing officer. We are now called upon to review both the hearing officer's findings of fact and the school board's substituted findings of fact and determine which should prevail. The standard which governs our review is set forth in McDonald v. Dep't of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
In determining whether substantial evidence supports the agency's substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those...
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