STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BREVARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3651

)

FREDERIC TESTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel M. Kilbride, held a formal hearing in the above-styled case on October 17, 1989, in Rockledge, Florida.

APPEARANCES

For Petitioner: Harold T. Bistline, Esquire

Building I, Suite 10 1970 Michigan Avenue

Cocoa, Florida 32922

For Respondent: Burton J. Green, Esquire

Post Office Box 320087

Cocoa Beach, Florida 32932-0087 STATEMENT OF THE ISSUES

Whether the Respondent committed an act of misconduct by having unauthorized School Board keys in his possession and, if so, whether he should be terminated from his employment with the School Board.

PRELIMINARY STATEMENT

On or about March 7, 1989, Respondent was recommended for termination from employment with the Brevard County School Board (School Board) and suspended without pay. Respondent invoked the Grievance Procedure set forth in the Union Agreement between the School Board and the Union Local 1010. Respondent's grievance was denied and the Superintendent recommended to the School Board that Respondent's employment be terminated for misconduct. Respondent requested a formal administrative hearing, pursuant to Section 120.57(1), Florida Statutes. On June 28, 1989, the School Board filed a request with the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled by notice dated August 4, 1989. At the final hearing the School Board called the following witnesses: Johnny Romans, Division of Maintenance Coordinator; Bob Dunkinson, School Board Locksmith; Leon Cowling, Assistant Superintendent Facilities and Support Services; Ed Buckner, Grounds Foreman; Henry Hartrich, Director of Maintenance; and Abe Collinsworth, Superintendent. The Respondent called the following

witnesses: Ed Buckner; Bill Swartz, Director of Security for the School Board; Michael Santroe, former School Board employee; Timothy Estep, General Repairman; Charlie Romans, Lead Painter; Bobby Young, Paint and Carpet Supervisor; Joey Hodge, Carpenter; and Respondent, Frederic Testa. Petitioner's Exhibits 1, 2, and 3, were offered into evidence and received. Respondent offered no exhibits. No transcript was prepared. The Petitioner filed its proposed findings of fact on October 30, 1989. Respondent did not file proposed findings.

FINDINGS OF FACT

1. Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years.

   
   

2. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District.

   
   

3. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida.

   
   

4. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident.

   
   

5. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys.

6. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle

271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were.

1. Mr. Cowling suspended Respondent for the remainder of March 6 and March

   7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay.

   
   

2. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy.

   
   

3. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle.

   
   

4. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck.

   
   

5. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. The termination of Respondent's employment is subject to the provisions of the Agreement between the School Board of Brevard County and the International Brotherhood of Painters and Allied Trades AFL-CIO Local 1010, dated September 8, 1987.

8. Article 11, Section 11.01 of said Agreement provides that an employee who has completed ninety (90) days of continuous service shall not therefore be discharged except for just cause.

   
   

9. Article 11, Section 11.03 provides that "just cause" includes misconduct and further provides that misconduct is cause for immediate termination.

   
   

10. The evidence clearly establishes that on or about February 28, 1989, Respondent was in possession of keys to the offices of Mr. Hartrich, Mr. Buckner, Mr. Young, the warehouse in the maintenance yard, and the big forklift in the maintenance yard. Respondent was not assigned these keys or authorized to have them in his possession. The possession of the unauthorized keys by Respondent is an act of misconduct of a serious nature and constitutes just cause for Respondent's termination under the Union Agreement with the School Board and Florida law.

    
    

11. Respondent has failed to present any evidence to prove the allegations contained in his petition of May 30, 1989, that he was not responsible for the keys being in his truck and that there was a conspiracy to terminate his employment.

RECOMMENDATION

Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County.

DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989.

COPIES FURNISHED:

Burton J. Green, Esquire Post Office Box 320087

Cocoa Beach, Florida 32932-0087

William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955

Harold T. Bistline, Esquire Building I, Suite 10

1970 Michigan Avenue

Cocoa, Florida 32922

Abraham L. Collinsworth Superintendent

School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955

Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955

Docket for Case No: 89-003651

Orders for Case No: 89-003651