STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3622

)

ERNESTINE ARENDALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 23, 1990, in Panama City, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Franklin R. Harrison, Esquire

P.O. Drawer 1579

Panama City Florida 32401

For Respondent: Alisa James, Esquire

Legal Services of North Florida

204 E. 4th Street

Panama City, Florida 32401 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent may be terminated from her employment position with Petitioner for misconduct in office.

PRELIMINARY STATEMENT

On or about May 15, 1986, Respondent received written documentation from Petitioner's representatives that termination of her employment would be recommended to Petitioner.

Respondent requested a formal administrative hearing before Petitioner on the matter. Respondent then requested that the scheduled hearing be postponed. The requested postponement was granted until July of 1986, when Respondent requested another postponement. Petitioner's representatives then postponed the requested hearing pending notification from Respondent of a desired hearing time.

In March of 1989, counsel for Respondent requested a formal administrative hearing regarding termination of Respondent's employment. The matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of five witnesses and eight evidentiary exhibits. Respondent presented the testimony of one witness, herself, and five evidentiary exhibits.

The transcript of the hearing was filed with the Division Of Administrative Hearings on November 26, 1990. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Ernestine Arendall. She has been employed by Petitioner for approximately 11 years. At all times during her employment with Petitioner, Respondent worked in a secretarial capacity at a facility maintained by Petitioner and known as the Kilbourn warehouse.

   
   

2. In the course of her employment, Respondent was designated as the cost center payroll clerk for the seven person work force at the warehouse. The payroll clerk was responsible for compiling a record of the hours worked by each of the warehouse employees for each pay period. That record was then forwarded to Petitioner's county payroll office to provide the basis for determining the salary amount to be paid to each employee for the pay period.

   
   

3. In addition to compiling the record of hours worked by each employee, Respondent also maintained the leave records, i.e., sick leave, annual leave or leave without pay, for the warehouse employees. The record of leave used by each employee at the cost center during a particular pay period was approved by the warehouse manager and then included by the payroll clerk, Respondent, in the payroll record sent to the county payroll office.

   
   

4. Copies of the payroll record and leave requests were retained at the warehouse in an unlocked filing cabinet in the office shared by Respondent and the warehouse manager. Copies of the leave requests were also provided to Petitioner's county personnel office as well as the payroll office.

   
   

5. For the pay period of April 14, 1986 through April 28, 1986, the copy of the payroll record prepared by Respondent, and retained at the warehouse, shows that Respondent worked a total of 58.5 hours. The warehouse copy of that record also shows that Respondent was on leave without pay for the days of April 16, 17,and 18, 1986. Further, Respondent was absent, according to the warehouse payroll record, for five and one half hours on April 15, 1986, in a leave without pay status. This record conforms with the copies of leave requests retained at the warehouse.

   
   

6. Respondent concedes that the copies of her payroll and leave records retained at the warehouse are accurate and correctly reflect her leave and hours worked during the April 14-28 pay period.

   
   

7. On May 5, 1986, a courier from Petitioner's county office delivered salary checks to the warehouse manager for the April 14-28, 1986 pay period. Upon review of the checks prior to distribution, the warehouse manager noted that the amount of Respondent's check did not seem to comport with the number of hours worked during the pay period by Respondent. The warehouse manager gave Respondent her check and requested that Respondent check with the county payroll office about the accuracy of the amount of the check.

8. Later that day, Respondent communicated with the payroll office and initiated a review of payroll records by personnel in that office. The warehouse manager subsequently learned, during a telephone discussion with payroll office personnel that the amount of hours reported to have been worked by Respondent on the copy of the payroll form retained at the warehouse differed from the record later received by the payroll office.

   
   

9. At a subsequent meeting between the warehousemanager and personnel of the payroll office where a comparison was made between the records retained at the warehouse and those received from the warehouse by the payroll office, the discrepancy was confirmed. Specifically, the documentation of Respondent's work status on April 16-18, 1986, on the record received by the payroll office had been changed from leave without pay, previously indicated on the record by a "W", to depict that Respondent had worked eight hours on each of those three days. The numeral "8" had been transposed over the "W" for each day, resulting in payment to Respondent for 24 hours which she had not worked.

   
   

10. The payroll record received by the payroll office and the payroll record retained by the warehouse bore the signature of Respondent in her capacity as the cost center payroll clerk. Further, the documents received at the district office were initialled by a records clerk at that office and identified at the final hearing as the same documents originally reviewed by her.

    
    

11. While the payroll record received from the warehouse by the payroll office conformed with the warehouse record with regard to Respondent's work status on April 15, 1986, a copy of a leave request accompanying the record documented Respondent's use of 5.5 hours of "over used sick leave" on that date, as opposed to the leave without pay status indicated on the payroll form. The leave request bore the forged signature of the warehouse manager and the actual signature of Respondent.

    
    

12. On the morning of May 7, 1986, Respondent was confronted at the warehouse by the warehouse manager andPetitioner's director of finance. Respondent was shown the payroll office documents and the documents retained at the warehouse. Regarding the changes made to the payroll office time and leave documents, her comment was: "I didn't do it, but that's my writing and if I did it I must have been out of my mind".

    
    

13. The finance director informed Respondent that he would recommend the termination of Respondent's employment on the grounds of misconduct. He did not indicate to Respondent that she was suspended or terminated from her employment at that time.

    
    

14. However, Respondent presumed she was fired. She called her father and informed him that she had been fired. Respondent then gathered her personal belongings and left the warehouse office where she had worked with the warehouse manager for the previous eight years.

    
    

15. With regard to resignations, Petitioner utilizes a prepared resignation form issued by Petitioner's personnel office. The form contains blank spaces to be completed with pertinent information on a case by case basis.

    
    

16. On May 12, 1986, Respondent telephoned the warehouse manager and asked if she needed to sign any papers regarding her termination. He said she needed to come down and sign a form. She told the warehouse manager that she would not sign a form acknowledging that she had committed any misconduct. The warehouse

    manager assured her that he had not filled in that portion of the form yet. She returned to the warehouse and signed a resignation form, prepared by the warehouse manager, documenting herresignation from Petitioner's employment effective May 12, 1986, for "personal reasons." The warehouse manager co-signed the resignation form in the space reserved for the signature of the principal or department head.

    
    

17. With regard to employment terminations, Petitioner utilizes another form prepared for this purpose and issued by Petitioner's personnel office. The form also contains blank spaces to be completed with pertinent information on a case by case basis.

    
    

18. On May 13, the warehouse manager sent a letter to Respondent, enclosing Respondent's resignation executed on the previous day. The warehouse manager had marked out his signature on the form. He then dated and initialled the signature deletion with the date of May 13, 1986. In the accompanying letter, the warehouse manager acknowledged the following:

    
    

    Prior to receiving your resignation form I had already prepared a termination form based upon the fact that you abandoned your job at approximately 12:20 PM on Wednesday, May 7 and I had no further contact with you until noon on May 12. Also, the circumstances that prompted you to abandon your job and your failure to adequately explain the altered payroll documents.

    
    

    The altered payroll timesheets and leave forms in your handwriting constitute misconduct.

    The leave form containing my forged signature is a matter of grave concern which you were unable to explain. Accordingly, I have recommended your termination for misconduct; a recommendation that Mr. McLeod [Petitioner's finance director] concurs with.

    
    

19. In view of his demeanor at the final hearing and his letter of May 13, 1986, initially confessing to execution of atermination form prior to the May 12, 1986 meeting with Respondent, the warehouse manager's testimony that he did inform Respondent on May 12, 1986, that he had previously executed a termination form is not credited.

    
    

20. Respondent's testimony regarding the meeting with the warehouse manager on May 12, 1986, is creditable and establishes that the warehouse manager did not provide Respondent at that meeting with a copy of the form recommending her employment termination for misconduct. Further, her testimony establishes that she tendered a resignation to her supervisor on the basis of "personal reasons" which, in the absence of evidence to the contrary, has never been withdrawn.

    
    

21. The form, recommending Respondent's employment termination, to be effective May 13, 1986, for misconduct in office was executed by the warehouse manager, although his signature on that form is undated. The signatures of supervisory personnel on the form are dated May 13, 1986.

22. The recommended termination, as depicted on the form, was approved by Petitioner's board on June 11, 1986. The form bears the written statement by the warehouse manager that Respondent refused to sign the document, although she had never seen the form prior to receipt of a copy in the mail on May 15, 1986.

    
    

23. Upon receipt of the warehouse manager's letter on May 15, 1986, Respondent obtained a meeting with the district school superintendent. After that meeting, Respondent wrote amemorandum, dated May 16, 1986, to the superintendent requesting a hearing at the next regularly scheduled meeting of the school board as the result of allegations of misconduct in office made against her.

    
    

24. The text of Respondent's May 16, 1986 memorandum reads as follows:

    
    

    Upon your recommendation I formally request that I be granted a School Board hearing at the next regularly scheduled Board meeting. This request is the result of allegations of misconduct as secretary at Kilbourn Warehouse.

    
    

25. In response to Respondent's memorandum, a hearing was scheduled for the school board's June, 1986 meeting. At Respondent's request, the hearing was postponed until the board's July meeting. A subsequent request by Respondent for further postponement to permit her newly obtained counsel to review the matter was granted with the understanding that a hearing would be held when Respondent was ready to attend. On March 29, 1989, counsel for Respondent requested that the hearing be held.

    
    

26. Both Petitioner and Respondent stipulate that the district superintendent of schools possesses the authority to suspend an employee with pay, while only the Bay County School Board retains the authority to terminate employment.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

28. Section 6.12, paragraph E., of Petitioner'semployment practices manual provides for termination of employment of school board employees for misconduct in office.

    
    

29. In order to terminate Respondent's employment, Petitioner is required to show by a preponderance of the evidence that Respondent was an employee at the time of the recommended termination and committed the acts alleged in the administrative complaint; namely, misconduct in office as a result of Respondent's alteration of her own payroll time sheets and leave forms in her official capacity as the cost center payroll clerk for the seven person work force at the Kilbourn warehouse.

    
    

30. The evidence received at the final hearing establishes Respondent prepared the payroll and leave records for the warehouse and forwarded copies of those documents to the district office. Those records, when received at the district office, contained alterations as to time worked and leave taken by Respondent. Those changes were discovered later during a comparison with the warehouse records; a comparison resulting from the warehouse manager questioning the amount of Respondent's pay check for that time period.

31. While not clearly admitting or denying her culpability, Respondent's responsibility for the record alterations is supported by her concession that the warehouse records are accurate; that the signature on the altered records is hers; and her demurrer that she must have been out of her mind if she made the changes to the documents forwarded to the district office.

    
    

32. However, whether Respondent's actions constitutedmisconduct in office is not a matter which need be resolved in view of Respondent's resignation. Clearly, upon the facts presented, Respondent resigned her employment on May 12, 1986, prior to Petitioner's attempt to terminate that employment on June 11, 1986, or the attempts of Petitioner's representatives to recommend such termination on May 13, 1986. 1/ Respondent possesses the right to withdraw her resignation at any time prior to acceptance. Hart v. School Bd. of Wakulla County, 340 So.2d 121 (1st DCA 1976). Under the facts presented in this case, Respondent did not exercise that right.

    
    

33. In the absence of proof that Respondent did not, or could not, resign instanter, subsequent attempts by Petitioner to terminate that employment must be deemed a nullity.

    
    

34. Respondent's subsequent request for a hearing in the face of Petitioner's ineffective termination is deemed a mistake of law which, absent proof that she meant to withdraw her previous resignation, cannot operate to vest Petitioner with jurisdiction to take action detrimental to Respondent's interests.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered by the School Board of Bay County, Florida finding that Respondent resigned her employment position with Petitioner on May 12, 1986, and dismissing further proceedings in this cause.

RECOMMENDED this 11th day of December, 1990, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3622

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-7. Adopted in substance, though not verbatim.

8. 1st sentence is rejected, while it is possible that Respondent made the alterations, that finding need not be made in view of the ultimate result in the case; the remainder of this proposed finding has been adopted although not verbatim.

9.-17. Adopted in substance, though not verbatim.

18. Rejected; conclusion of law.

Respondent's Proposed Findings.

1.-14. Adopted in substance, though not verbatim.

15. Adopted by reference.

COPIES FURNISHED:

Franklin R. Harrison, Esq.

P.O. Drawer 1579 Panama City FL 32401

Alisa James, Esq.

Legal Services of North Florida

204 E. 4th Street Panama City, FL 32401

Jack Simonson Superintendent of Schools Bay County, Florida

P.O. Drawer 820 Panama City, FL 32402

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003622

Orders for Case No: 90-003622