STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4233

)

MICHAEL L. CHIUCHIOLO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 21, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Hazel Lucas, Esquire

Palm Beach County School Board Office of the General Counsel

3381 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33406-5813 (At the formal hearing.)

Glen J. Torcivia, Esquire One Clearlake Centre

250 Australian Avenue South, Suite 1504 West Palm Beach, Florida 33401

(On the post-hearing submittal.)

For Respondent: Isidro M. Garcia, Esquire

3501 South Congress Avenue Lake Worth, Florida 33461

STATEMENT OF THE ISSUES

Whether Respondent resigned his position of employment with Petitioner and, if not, whether Respondent's position of employment with Petitioner should be terminated for cause, specifically, the Respondent's alleged absence without leave, his alleged abuse of sick leave, and his alleged theft of school property.

PRELIMINARY STATEMENT

Respondent was employed by Petitioner as a painter pursuant to an annual contract of employment. Effective January 29, 1993, Respondent's employment was terminated by Petitioner on the theory that Respondent should be deemed to have resigned his position by his failure to report to work for three consecutive days without authorized leave. Respondent timely challenged that determination,

and this proceeding followed. Petitioner asserts in this proceeding that Respondent should be found to have resigned his position of employment. In the alternative, Petitioner asserts that cause exists for the termination of Respondent's employment if it is found that he did not resign. The cause argued by Petitioner for the termination of employment is that Respondent was absent without authorized leave for more than three days, he abused sick leave, and he converted school property to his own use. Respondent asserts that he did not resign his employment, that he should not be presumed to have resigned his employment, and that good cause does not exist for the involuntary termination of his employment.

At the formal hearing, Petitioner called as its witnesses Warren Haan, Jacques Brisson, Hal Laird, Wilford Paul Lachance, James Sapyta, Dennis Shea, John Spriggs, Lawrence G. Zabik, and Walter H. Pierce. All of Petitioner's witnesses were School Board employees at the times pertinent to this proceeding. Petitioner presented ten exhibits, one of which was marked for identification purposes only, and nine of which were accepted into evidence. Respondent testified on his own behalf and presented ten exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for April 4, 1994, which was more than ten days following the filing of the transcript.

Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was employed by Petitioner as a painter pursuant to an annual contract from January 17, 1983, until January 29, 1993. Respondent was not a member of the instructional staff, a principal, or a supervisor.

   
   

2. Respondent did not submit to the Petitioner a formal resignation of his employment, nor did he ever intend to do so.

   
   

3. A School Board employee with an annual contract may be dismissed during the term of his contract for cause.

   
   

4. Respondent had frequently taken leave during his term of employment with the Petitioner and he was aware of the School Board's policies pertaining to leave.

   
   

5. Respondent is a member of a collective bargaining unit represented by the International Brotherhood of Firemen and Oilers, Local 1277, AFL-CIO (IBFO). The collective bargaining agreement between the IBFO and the School Board contains terms and conditions of employment pertinent to this proceeding.

   
   

6. Article IV, Section F pertains to "Return from Leave" and provides as follows:

   
   

   Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for

   dismissal. This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.

   
   

7. Article IV, Section A of the collective bargaining agreement pertains to sick leave and provides, in pertinent part, as follows:

   
   

   3. Sick Leave Charged -- Sick leave shall be charged in no less than half-day segments.

   Each school or Department shall record absences on an hourly basis. When the appropriate

   half-day increment is reached, based upon the assigned employee workday, the employee shall have 1/2 day of accumulated sick leave deducted. . . .

   * * *

   10. False Claim -- False claim for sick leave shall be grounds for dismissal by the School Board.

   
   

8. Petitioner's Administrative Directive D-3.47(3) is a rule of the School Board and provides, in pertinent part, as follows:

   
   

   (3) District employees shall not convert School Board property, including any equipment and supplies, for personal business or activity.

   
   

   CONVERSION OF SCHOOL BOARD PROPERTY

   
   

9. In November 1992, Warren Haan, the paint supervisor for the Petitioner's Department of Maintenance and Operations, was told by Jacques Brisson, Respondent's foreman, that it appeared to him that Respondent was taking school property for his own use. Mr. Haan investigated the allegations and went to the area in the maintenance department where the employees parked their vehicles. Mr. Haan looked into Respondent's personal vehicle and discovered that Respondent had placed inside of his vehicle property of the School Board. The evidence established that Respondent intended to convert this property to his own use. The property, which was taken from the Respondent before he could remove it from school grounds, consisted of an empty paint bucket, painter's rags, a small quantity of caulk, and a caulking gun. Mr. Haan referred this matter to the school security department on January 4, 1993. Respondent had not been disciplined at the time of his alleged resignation because the matter was still under investigation at that time.

   
   

10. Respondent testified that other painters regularly took items such as empty paint buckets and paint rags. This self-serving testimony does not establish that Petitioner routinely permitted painters to violate the clear school policies pertaining to unauthorized use of school property. To the contrary, the testimony of Mr. Brisson established that theft had been a problem that he had tried to stop.

    ABUSE OF SICK LEAVE

    
    

11. The Respondent occasionally was employed as a painter by individuals and entities other than the Petitioner. Such employment was permissible, but an employee was not permitted to perform services for private individuals while out on sick leave.

    
    

12. The Respondent reported to work on December 3, 1992, and left his employment in the late morning using sick leave for the remainder of the day. That same day, Mr. Haan received information that led him to believe that Respondent had taken sick leave, but that he was working as a painter at a house under construction in an area referred to as Boca Grove in Boca Raton, Florida. Mr. Haan went with Dave Traill, another school board employee, to this private residence at approximately 2:30 p.m. on December 3, 1992, where he observed Respondent's automobile. He went to the residence under construction and asked to see the Respondent. The Respondent thereafter came out of the house and talked with Mr. Haan and Mr. Traill. Mr. Haan and Mr. Traill did not see what Respondent had been doing inside the residence. Respondent testified that he had seen his doctor for a brief appointment earlier that day and had gone from his doctor's office to the residence at Boca Grove. Respondent admitted at the formal hearing that he had agreed to paint the house for the owner, but asserted that he had gone to the house to tell the owner that he would not be working that day. Respondent testified that he had taken vacation leave when he actually worked on the private residence. Respondent admitted that he had spent approximately two hours on December 3, 1992, while on sick leave going over with the owner items of work that he was to perform. This meeting was a necessary part of the painting job he was to do for the owner. From the evidence presented, it is found that on December 3, 1992, the Respondent performed services unrelated to his duties as a school board employee for his personal gain at this house in Boca Grove while absent from his employment with the Petitioner pursuant to sick leave. Respondent abused Petitioner's sick leave policy.

    
    

    ABSENCES WITHOUT LEAVE

    
    

13. In January 1993, Petitioner took time off from his work to attend to his wife, who continued to experience physical problems resulting from a heel fracture on August 28, 1992. Respondent contacted his foreman, Jacques Brisson, at approximately 7:30 a.m. on Monday, January 25, 1993, to request that he be allowed to take that week off as vacation time. Mr. Brisson approved that leave, but he informed Respondent that he would have to contact Warren Haan, the painting supervisor, if he wanted to take any additional time off. Respondent was absent from his employment without approved leave on Monday, February 1, 1993; Tuesday, February 2, 1993; Wednesday, February 3, 1993; and Thursday, February 4, 1993. Friday, February 5, 1993, was not a scheduled work day since the paint department was on a four day work week.

    
    

14. Respondent testified that he contacted Mr. Haan during the last week of January 1993 and told him he may need to be off work for a week or longer. Respondent also testified that Mr. Haan authorized his leave during the last week of January 1993. Mr. Haan testified at the formal hearing, but he was not questioned about this conversation or whether he authorized leave for the Respondent during any part of February 1993. Mr. Haan testifed that Respondent's employment was terminated because he was absent without authorization for the days in February and that Respondent would have contacted Mr. Brisson to obtain authorization for leave. Respondent later testified that he did not know why he had not contacted anyone prior to being absent on

    February 1, 2, 3, and 4, 1993. The apparent conflicts in Respondent's testimony are resolved by finding that while Respondent may have told Mr. Haan at some time during January 1993 that he needed to take some time off, he did not seek and he was not given authorization to be absent from his employment on February 1, 2, 3, and 4, 1993.

    
    

15. On February 5, 1993, Warren Page, Coordinator of Petitioner's Department of Maintenance and Plant Operations, sent to Respondent by certified mailing a letter which provided, in pertinent part, as follows:

    
    

    This is to confirm that you have not reported to work since January 29, 1993. You have not contacted this office as required to report your intended absences. You have not requested or received approval for a short term leave of absence. Therefore, you are currently absent without approved leave.

    In the absence of any correspondence from you, I can only assume that you have decided not to continue working as a Painter for the Palm Beach County School Board. Please be advised that your name will be submitted to the Palm Beach County School Board at its next regularly scheduled meeting for acceptance of your resignation from employment.

    Should you have any questions, feel free to contact this office.

    
    

16. Respondent received the certified mailing on Saturday, February 6, 1993. On Monday, February 8, 1993, Respondent contacted Lawrence G. Zabik, the Petitioner's Assistant Superintendent for Support Services, and asked him what he should do about the certified mailing that he had received. Mr. Zabik told Respondent that he should meet with Mr. Page to see if he could work things out. Respondent did not contact Mr. Page, and he did not report to work.

    
    

17. During a regularly scheduled meeting in February, 1993, the School Board voted to accept his resignation with an effective date of January 29, 1993. January 29, 1993, was the effective date of the acceptance of Respondent's "resignation" and the date his employment with the School Board was terminated because it was the last day Respondent was out on authorized leave. This action was taken pursuant to Petitioner's Administrative Directive D- 3.27(2)(c), which provides as follows:

    
    

    (c) When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employees stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting.

    
    

18. By notice dated March 2, 1993, Respondent was notified that the School Board had accepted his resignation as a painter with an effective date of January 29, 1993.

19. The notice dated March 2, 1993, contained an old address for the Respondent. Consequently, he did not receive a copy of the notice until May 24, 1993, when he was officially informed that his employment had been terminated effective January 29, 1993, the last day on which Respondent had been on approved leave. Respondent thereafter requested a formal hearing to contest his termination, and this proceeding followed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Petitioner has the burden of proving by a preponderance of the evidence that there exists cause to terminate the Respondent's employment. See, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981); Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990; and Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

22. This formal proceeding conducted pursuant to the provisions of Section 120.57(1), Florida Statutes, is considered a de novo proceeding as opposed to an appeal. The Florida Supreme Court recently discussed the difference between an appeal and a de novo proceeding in Young v. Department of Community Affairs, 625 So.2d 831, 833, (Fla. 1993) as follows:

    
    

    An appeal involves review by an appellate court of the decision of a lower court. The burden is on the appellant to show reversible error. City of Miami v. Hollis, 77 So.2d 834 (Fla. 1955). Moreover, the judgment below is clothed with a presumption of correctness that the appellant must overcome. Id. However, a chapter 120 proceeding is a hearing de novo

    intended "to formulate final agency action, not to review action taken earlier and preliminarily." McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla.

    1st DCA 1977).

    
    

23. Although there is no separate charging document in this proceeding such as a notice of specific charges or an administrative complaint, it is clear that Respondent had actual notice of the grounds that the School Board asserted as cause for the termination of his employment. Any deficiency in the notice of these charges was waived by this actual notice and by the absence of a timely objection to the failure of Petitioner to provide a formal, written notice.

    See, Forehand v. School Board of Gulf County, 600 So.2d 1187 (Fla. 1st DCA 1992); Krischer v. School Board of Dade County, 555 So.2d 436 (Fla. 3d DCA 1990); and Powell v. Board of Public Instruction of Levy County, 229 So.2d 308 (Fla. 1st DCA 1969). Based on the foregoing, it is concluded that the School Board may assert that there exists cause to terminate his employment if it is found that Respondent did not resign his employment.

    
    

24. Respondent's unauthorized absences on February 1, 2, 3, and 4, 1993, did not constitute a resignation. Those absences created a presumption that Respondent intended to resign, a presumption that Respondent rebutted at the formal hearing. Consequently, it is determined that Respondent did not resign his employment, nor should he be presumed to have done so. Compare, Rule 22A-

    7.010(2), Florida Administrative Code, pertaining to State of Florida employees, and Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2d DCA 1990), which interprets that rule.

    
    

25. Section 231.36, Florida Statutes, provides that "just cause" is necessary for the involuntary termination by a school board of the employment of members of the instructional staff, supervisors, and principals. Because the Respondent is a noninstructional employee without supervisory responsibilities, the provisions of Section 231.36, Florida Statutes, do not expressly apply to his employment. Respondent's contract of employment with the School Board provided him a reasonable expectation of continued employment that cannot be terminated by the School Board without cause. In determining what constitutes cause sufficient to justify the termination of Respondent's employment, it is helpful to consider that misconduct in office and willful neglect of duty are included in the statutory listing of "just cause" contained in Section 231.36, Florida Statutes.

    
    

26. The filing of a false claim for sick leave is specifically made grounds for dismissal by the collective bargaining agreement. Petitioner established that Respondent abused its sick leave policy by working for a private individual while on sick leave. This abuse of sick leave violates Petitioner's Administrative Directive D-3.27(3)(m) and Article IV, Section A, Paragraph 10 of the collective bargaining agreement and constitutes misconduct in office and willful neglect of duties. It is concluded that this abuse of sick leave constitutes cause for the termination of Respondent's employment.

    
    

27. The School Board has enacted a rule that prohibits employees from converting school supplies and equipment to their own personal use. Petitioner established that Respondent was caught in the process of converting to his own use property of the School Board. While the items of property involved were of little value, the conversion of school property by employees violates the Petitioner's Administrative Directive D-3.47(3) and constitutes misconduct in office. It is concluded that this attempted taking of school equipment and supplies for his own personal use constitutes cause for the termination of Respondent's employment.

    
    

28. The failure of an employee to return from authorized leave constitutes absence without leave and is specifically made grounds for dismissal by the collective bargaining agreement. Petitioner established that Respondent failed to return to his employment following the expiration of his leave on January 29, 1993, and that he was absent without authorized or approved leave on February 1, 2, 3, and 4, 1993. It is concluded that Respondent violated the provisions of Article IV, Section F of the collective bargaining agreement and that this violation constitutes misconduct in office and willful neglect of duty. Respondent's failure to return to his employment following the expiration of his approved leave constitutes cause for the termination of his employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which terminates the employment of the Respondent.

DONE AND ENTERED this 18th day of May, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 18th day of May 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4233

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, and 15 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence established that the incident involving conversion of school board property occurred in November 1992, but that it was reported to Mr. Sapyta on January 4, 1993.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 4, 5, 6, 7, 13, and 15 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 2, 3, and 10 are rejected as being unnecessary as findings of fact, but the proposed findings are adopted either as preliminary matters or as conclusions of law.

3. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraph 9 are adopted by the Recommended Order or are subordinate to the findings made.

5. The proposed findings of fact in the first sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached since there is no contention that Respondent had exhausted his sick leave. The proposed findings in the second sentence of paragraph 11 are rejected. Specifically, Mr. Haan's credibility was not eroded as asserted by Respondent. The other findings of fact in paragraph 11 are adopted by the Recommended Order or are subordinate to the findings made.

6. The proposed findings of fact in paragraphs 12 and 14 are rejected as being unnecessary to the conclusions reached since this is a de novo proceeding.

7. The proposed findings of fact in paragraph 16 are subordinate to the findings made.

8. The proposed findings of fact in paragraph 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made.

9. The proposed findings of fact in paragraph 18 are subordinate to the findings made or to the conclusions reached.

COPIES FURNISHED:

Hazel Lucas, Esquire

Palm Beach County School Board Office of the General Counsel

381 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33406-5813

Glen J. Torcivia, Esquire One Clearlake Centre

250 Australian Avenue South Suite 1504

West Palm Beach, Florida 33401

Isidro M. Garcia, Esquire 3501 South Congress Avenue Lake Worth, Florida 33461

Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact 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.

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DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

MICHAEL L. CHIUCHIOLO, FOURTH DISTRICT

Appellant,

v. CASE NO. 94-2368

L.T. CASE NO. 93-4233

PALM BEACH COUNTY SCHOOL BOARD,

Appellee.

/ Decision filed December 6, 1995

Administrative appeal from the School Board of Palm Beach County. Charles W. Musgrove, West Palm Beach, for appellant.

Glen J. Torcivia of Law Offices of Glen J. Torcivia, P.A., West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

WARNER, FARMER and PARIENTE, JJ., concur.

M A N D A T E

from

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable Bobby W. Gunther, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day.

DATE: December 22, 1995

CASE NO.: 94-2368

COUNTY OF ORIGIN: Palm Beach County School Board

T.C. CASE NO.: 93-4233

STYLE: Michael L. Chiuchiolo v. Palm Beach County School Board

Marilyn Beuttenmuller, Clerk District Court of Appeal Fourth District

ORIGINAL TO: Palm Beach County School Board

cc: Charles W. Musgrove

Law Offices of Glen J. Torcivia, P.A.

Docket for Case No: 93-004233

Orders for Case No: 93-004233