STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2005

)

EDWARD E. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 8 - 9, 1994, November 21 - 22, 1994,

December 15 - 16, 1994 and January 26 - 27, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Dade County School Board

1450 North East Second Avenue, Suite 301 Miami, Florida 33132

For Respondent: Robert A. Sugarman, Esquire

Noah Scott Warman, Esquire Sugarman & Susskind, P. A.

5959 Blue Lagoon Drive, Suite 150

Miami, Florida 33126 STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner's suspension/termination of Respondent is proper.

PRELIMINARY STATEMENT

By letter dated March 24, 1994, the Dade County School Board (Petitioner), by and through its Associate Superintendent, Dr. Patrick Gray, notified Edward

E. Smith (Respondent) that the Petitioner had suspended him and initiated dismissal proceedings against him from employment with the Dade County Public Schools, effective March 23, 1994. Petitioner indicated that its action was based upon "just cause, including but not limited to, misconduct in office, willful neglect of duty, and violation of School Board Rule 6Gx13-4A-1.21(1), Responsibilities and Duties, Employee Conduct." By letter dated April 4, 1994, and by request for hearing dated April 7, 1994, Petitioner requested a formal hearing and denied that certain statements which were in his file were true.

This matter was refereed to the Division of Administrative Hearings for formal hearing. Pursuant to writing notice, a formal hearing was scheduled on

September 8 - 9, 1994. Due to the matter not being completed within the allotted time, several additional days, spanning several months, were subsequently scheduled.

On June 13, 1994, Petitioner filed specific charges against Respondent alleging in essence that Respondent had used Petitioner time, equipment, and personnel to conduct non-Petitioner business, thereby failing to conduct himself in a manner that reflects credit upon himself and the school system in violation of Petitioner's Employee Conduct rule, Rule 6Gx13-4A-1.21(1). Among other things, Petitioner alleged that on certain dates Respondent conducted business for Tri-City Community Association and/or personal business during the time that he was employed to perform Petitioner's work; that between 1989 and 1994, Respondent used Petitioner's property to perform non-Petitioner work/business; that between 1989 and 1994, Respondent used Petitioner's employees to perform non-Petitioner work; that, even though on two occasions (on or about May 23, 1991, and February 7, 1992) Respondent was warned about not working a full-day and directed to notify his administrator of his whereabouts when he was away from his work site premises and whether and when he needed to vary his arrival and departure times and to be available by beeper, Respondent failed to regularly inform his staff and supervisor of his whereabouts and was not regularly available and responsive to office function questions. Further, Petitioner charged that, as a result of Respondent's conduct, Respondent violated Rule 6Gx13-4A-1.21(1) by failing to conduct himself in a manner that reflects credit upon himself and the school system, i. e., engaging in misconduct, which constitutes cause for dismissal pursuant to Section 230.23(5)(f), Florida Statutes.

Prior to hearing, the parties filed a prehearing stipulation. At hearing, Petitioner presented the testimony of 22 witnesses and entered 56 exhibits into evidence. Respondent testified on his own behalf and presented the testimony of five witnesses and entered 16 exhibits into evidence.

A transcript of the formal proceeding was ordered. At the request of the parties, the time for filing posthearing submissions was set for more than ten days following the filing of the transcript. An extension of time was granted extending the filing beyond the agreed upon deadline. The parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes.

   
   

2. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States.

   
   

3. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets,

   which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years.

   
   

4. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks.

   
   

5. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation.

   
   

6. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request.

   
   

   INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC.

   
   

7. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended.

   
   

8. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so.

   
   

9. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner.

   
   

10. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon.

    
    

11. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees.

    
    

12. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his

    lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion.

    
    

13. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent.

    
    

14. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only.

    
    

15. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure.

    
    

16. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it.

    
    

17. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office.

    
    

    CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME

    
    

18. Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed.

    
    

19. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P.

    M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner.

    
    

20. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour.

    
    

21. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City.

    Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner.

    
    

22. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M.

    This day was also a work day for Respondent for which he was paid by Petitioner.

    
    

    USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE

    
    

23. From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten

    (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time.

    
    

24. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them.

    
    

25. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office.

    
    

26. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons.

    
    

27. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City.

    
    

28. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace.

    
    

29. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment.

    
    

30. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would

    involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly.

    
    

31. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch.

    
    

32. Most of the time Respondent would not eat lunch but would work through lunch.

    
    

33. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors.

    
    

34. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week.

    
    

35. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls.

    
    

36. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper.

    
    

37. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive.

    
    

38. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees.

    
    

39. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business.

    
    

40. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals

    associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner.

    
    

41. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office.

    Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data.

    
    

    RESPONDENT'S OFFICE SITUATION

    
    

42. Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks.

    
    

43. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home.

    
    

44. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations.

    
    

45. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision.

    
    

46. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going.

    
    

47. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices.

    
    

48. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open.

    
    

49. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time,

    Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him.

    
    

50. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent.

    
    

51. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings.

    
    

52. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused.

    
    

53. Respondent's performance is not an issue in this proceeding.

    
    

54. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours.

    
    

55. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason.

    
    

56. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring.

    
    

57. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day.

    
    

58. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and

    having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment.

    
    

59. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent.

    
    

60. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items.

    
    

61. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis.

    
    

62. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation.

    
    

63. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police.

    
    

64. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors.

    
    

65. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive.

    
    

66. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee.

    
    

67. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls.

    
    

68. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation.

69. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure.

    
    

70. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting.

    
    

71. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything.

    
    

72. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers.

    
    

73. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments.

    
    

74. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared.

    
    

75. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even

    though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments.

    
    

76. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor.

    
    

77. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else.

    
    

78. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities.

    
    

79. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour.

    
    

    SUSPENSION/DISMISSAL

    
    

80. On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.

    
    

    CONCLUSIONS OF LAW

    
    

81. The Division of Administrative Hearings had jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

82. Petitioner's Rule 6Gx13-4A-1.21 provides in pertinent part: RESPONSIBILITIES AND DUTIES

    1. Employee Conduct

       All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect upon themselves and the school system.

83. Petitioner has demonstrated that Respondent used its equipment to conduct non-Petitioner related business, i.e., Tri-City business. Over a 3-year period, Petitioner's fax machine was used by Respondent and by an employee at Respondent's request to fax at least 30 items and used to receive faxed items; Petitioner's personal computer was used by an employee at Respondent's request to type at least 20 items; Respondent's personal computer, issued by Petitioner, was used to produce, as well as store, documents; and Petitioner's copy machine was used by an employee at Respondent's request to copy at least 20 items and used by Respondent, himself, to copy items. No credible evidence was presented to show the quantity of items Respondent, himself, faxed, or produced on the computer, or copied.

    
    

84. Further, for almost two years, three quarters of Respondent's in- coming telephone calls to his office were non- Petitioner related business, i.e., Tri-City business. However, no credible evidence was presented to show the length of time of the telephone calls.

    
    

85. Although Petitioner has demonstrated that Respondent used its equipment for non-Petitioner related business, the evidence further shows that it was common practice for Petitioner's employees at Respondent's workplace to use the same equipment for personal use. Moreover, there is no evidence to show that the equipment was negatively impacted by Respondent's use or the use of the equipment at his request, or that the use of the equipment far exceeded the personal use by other employees at Respondent's place or was excessive.

    
    

86. Also, no evidence was presented to show that the Tri-City work performed by the employee at Respondent's request interfered with her performing Petitioner related work or her duties or responsibilities.

    
    

87. Petitioner has demonstrated that, beginning sometime in 1993, Respondent requested Tri-City employees to contact him through his beeper which was issued by Petitioner. There is no evidence to show the frequency that Tri- City employees contacted Respondent through his beeper.

    
    

88. Petitioner has demonstrated that on one occasion, Respondent held a non-Petitioner related meeting, i.e., a Tri-City meeting, at his workplace after his workday ended. Even though the actual meeting began after Respondent's workday ended, individuals attending the meeting began arriving at least 2 1/2 hours before the end of Respondent's workday and went to his individual office when they arrived.

    
    

89. Petitioner has demonstrated that on one occasion, Respondent conducted interviews in his individual office for a position which was non-Petitioner related, i.e., Tri-City business. Also, Petitioner demonstrated that for a week prior to the day of the interviews, Respondent's workplace fielded telephone calls regarding the interviews and position which caused Petitioner's employees in Respondent's workplace to devote less time to their work which was Petitioner related.

    
    

90. Petitioner has demonstrated that Respondent received Tri-City and other visitors at his workplace. However, it was common practice for Petitioner's employees at Respondent's workplace to receive visitors. Furthermore, Petitioner did not present evidence to show that the visits were excessive or to show, quantitatively, the visits occurring outside of Respondent's designated lunch period.

91. Petitioner has demonstrated that on two occasions Respondent attended Tri-City meetings beyond his lunch hour. Respondent remained at the two meetings at least 15 minutes to 30 minutes beyond his lunch hour.

    
    

92. Petitioner has demonstrated that, on one occasion, Respondent was at Tri-City's office site on non-Petitioner related business for at least 30 minutes.

    
    

93. Petitioner has also demonstrated that, on one occasion, Respondent departed his workplace on Tri-City related business one(1) hour before his work day ended.

    
    

94. Respondent's performance is not an issue in this proceeding and therefore, the relationship between Respondent's involvement with Tri-City and his performance at work will not be addressed.

    
    

95. Respondent has been employed by Petitioner for approximately 11 years. Petitioner has shown that Respondent has engaged in limited transgressions spanning approximately a three-year period. Considering all the circumstances, Respondent's limited transgressions do not rise to the level or gravamen for the imposition of a suspension, and, in turn, a dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking

the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate.

DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 21st day of August, 1995.

ENDNOTES

1/ Petitioner withdrew its exhibit of the documents from Respondent's hard drive and, therefore, none of the documents were entered into evidence.

2/ Ibid.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

1 and 3. Partially accepted in finding of fact 3.

2. Partially accepted in finding of fact 1. 4,10 and 15. Rejected as being subordinate.

5. Partially accepted in finding of fact 45.

6 and 7. Partially accepted in finding of fact 51.

1. Partially accepted in findings of fact 7, 8 and 11.

2. Partially accepted in findings of fact 9 and 10.

1. Partially accepted in finding of fact 52.

2. Partially accepted in findings of fact 30 and 31.

3. Partially accepted in findings of fact 34, 35 and 37.

4. Partially accepted in findings of fact 4 and 6.

1. Partially accepted in finding of fact 25.

2. Partially accepted in findings of fact 23 and 27.

18, 44, 52, 61, 62, 77, 85, 91 and 94. Rejected as not supported by the more credible evidence.

1. Partially accepted in findings of fact 28 and 41.

2. Partially accepted in findings of fact 24, 26, 33, and 38.

3. Partially accepted in finding of fact 10.

4. Partially accepted in finding of fact 18.

5. Rejected as being subordinate, or not supported by the more credible evidence.

6. Partially accepted in finding of fact 17.

25, 28, 29, 32-36, 40, 41, 43, 45-48, 50, 51, 53-60, 63, 64 66-72, 74, 78

and 80. Partially accepted in findings of fact 18 and 19.

26. Partially accepted in finding of fact 54.

27 and 65. Partially accepted in finding of fact 19.

1. Partially accepted in finding of fact 55.

2. Partially accepted in finding of fact 7.

37. Partially accepted in finding of fact 56.

38 and 42. Partially accepted in finding of fact 57.

39. Partially accepted in finding of fact 39.

49. Partially accepted in finding of fact 40.

73. Partially accepted in finding of fact 21.

1. Partially accepted in finding of fact 58.

2. Rejected as being subordinate, irrelevant, or unnecessary.

79. Partially accepted in finding of fact 22.

1. Partially accepted in findings of fact 62, 64 and 65.

2. Rejected as not supported by the evidence.

3. Rejected as not supported by the evidence, argument, or conclusion of

   law.

   
   

4. Partially accepted in findings of fact 28 and 72.

1. Partially accepted in finding of fact 30.

2. Partially accepted in finding of fact 76.

3. Rejected as being irrelevant, unnecessary, or not supported by the

   more credible evidence.

4. Partially accepted in finding of fact 79.

5. Rejected as being irrelevant, or unnecessary.

1. Partially accepted in findings of fact 4-6, 32, 46 and 47.

2. Partially accepted in findings of fact 34 and 35.

95. Partially accepted in finding of fact 47.

96-98. Rejected as being irrelevant, unnecessary, or argument.

1. Partially accepted in findings of fact 18, 19, 22-36, 38-41, and 52.

2. Rejected as not supported by the more credible evidence, or argument.

3. Partially accepted in finding of fact 80.

Respondent's Proposed Findings of Fact.

1. Partially accepted in finding of fact 2.

2. Partially accepted in finding of fact 3.

3, 18, 29, 34, 36, 39-44, 51-53, 57, 59, 60, 78, 79, 96, 97, 99, 101-103,

105, 122, 135, 137, and 141. Rejected as being subordinate.

4. Partially accepted in findings of fact 3 and 51.

5 and 19. Partially accepted in findings of fact 4 and 5.

1. Partially accepted in findings of fact 28 and 48.

2. Partially accepted in findings of fact 49 and 50. 8-11. Partially accepted in finding of fact 47.

1. Partially accepted in findings of fact 6 and 32.

2. Partially accepted in finding of fact 7.

3. Partially accepted in finding of fact 46.

4. Partially accepted in finding of fact 80.

5. Partially accepted in finding of fact 44.

6. Partially accepted in findings of fact 5 and 6.

20 and 26. Partially accepted in finding of fact 37. 21-25. Partially accepted in finding of fact 26.

1. Partially accepted in findings of fact 23 and 24.

2. Partially accepted in finding of fact 33.

30 and 32. Partially accepted in finding of fact 4.

31. Partially accepted in finding of fact 5.

33 and 35.. Partially accepted in finding of fact 66.

1. Partially accepted in finding of fact 45.

2. Partially accepted in finding of fact 56.

45-48. Rejected as being subordinate, irrelevant, or unnecessary.

1. Partially accepted in finding of fact 23.

2. Partially accepted in findings of fact 23-25.

54, 56, and 148. Partially accepted in finding of fact 58.

55. Partially accepted in finding of fact 51.

58. Partially accepted in findings of fact 58 and 59.

61 and 63. Partially accepted in findings of fact 59, 60, 63, 67, 71 and

72.

62. Partially accepted in findings of fact 59 and 60.

1. Partially accepted in finding of fact 61.

2. Partially accepted in findings of fact 64 and 65.

3. Partially accepted in finding of fact 67.

67, 71, 73, 74, and 123. Partially accepted in finding of fact 63.

68 and 69. Rejected as being subordinate. Also, see Endnotes 1 and 2.

70. Partially accepted in findings of fact 28 and 41.

72. Partially accepted in findings of fact 28 and 49.

1. Partially accepted in finding of fact 9.

2. Partially accepted in findings of fact 7, 10 and 11.

3. Partially accepted in findings of fact 10 and 64.

1. Partially accepted in findings of fact 30 and 31.

2. Partially accepted in findings of fact 36 and 41.

3. Partially accepted in finding of fact 24.

4. Partially accepted in findings of fact 10, 11 and 18.

84 and 86. Partially accepted in findings of fact 10 and 12.

85. Partially accepted in findings of fact 13.

87. Partially accepted in findings of fact 16 and 17.

88-95. Partially accepted in findings of fact 14 and 15.

98. Partially accepted in finding of fact 18.

100. Partially accepted in finding of fact 64.

104. Rejected as being, subordinate, irrelevant, or unnecessary.

1. Partially accepted in finding of fact 62.

2. Partially accepted in finding of fact 68.

108 and 110-112. Partially accepted in finding of fact 69.

109. Partially accepted in findings of fact 69 and 70.

113 and 114. Partially accepted in finding of fact 70. 115-119. Partially accepted in findings of 71 and 72.

1. Partially accepted in findings of fact 71-73 and 75.

2. Partially accepted in finding of fact 72.

124-130. Partially accepted in findings of fact 70 and 73.

131 and 133. Partially accepted in finding of fact 74.

132. Partially accepted in finding of fact 75.

134. Rejected as being argument, or conclusion of law.

136. Rejected as being argument.

1. Partially accepted in findings of fact 14, 15 and 73.

2. Partially accepted in findings of fact 69, 73 and 74.

3. Rejected as being argument or conclusion of law.

142. Partially accepted in finding of fact 76.

143 and 144. Partially accepted in findings of fact 77 and 78.

145 and 146. Partially accepted in finding of fact 77.

147 and 149-152. Partially accepted in finding of fact 80.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Madelyn P. Schere, Esq.

School Board Administration Bldg. Suite 301

1450 Northeast Second Avenue Miami, FL 33132

Robert A. Sugarman, Esq. Noah Scott Warman, Esq. Sugarman & Suskind

5959 Blue Lagoon Drive Suite 150

Miami, FL 33126

Octavio J. Visiedo Superintendent of Schools Dade County Public Schools

School Board Administration Bldg. 1450 NE Second Avenue

Miami, FL 33132

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.

================================================================= AGENCY FINAL ORDER

================================================================= IN THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA,

Petitioner, CASE NO. 94-2005 EDWARD E. SMITH,

Respondent.

/

FINAL ORDER

OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

THIS CAUSE coming on to be heard before The School Board of Dade County, Florida, at its regular meeting of September 20, 1995, and the Board having heard argument of counsel on the exceptions filed by the Petitioner herein, and having read the complete record in this case and being fully advised in the premises, it is therefore ordered as follows:

The School Board accepts the findings of fact of the Hearing Officer, attached hereto aid incorporated herein by reference, except for 8, 46, & 76. As to 8, 46, and 76, the School Board accepts the rationale of the exceptions,

attached hereto and incorporated herein by reference, and their citations to the record.

1. The School Board accepts the conclusions of law of the Hearing Officer, attached hereto and incorporated herein by reference, except for 85, 90, and 95. As to 85, 90, and 95, the School Board accepts the rationale of the exceptions, attached hereto and incorporated herein by reference, and their citations to the record.

   
   

2. The School Board rejects the recommendation of the Hearing Officer that the School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate.

IT IS THEREUPON ORDERED by The School Board of Dade County, Florida, that:

1. the Hearing Officer's Findings of Fact be and the same are hereby adopted in this the Final Order of The School Board of Dade County, Florida, except for 8, 46, and 76.

   
   

2. Finding of Fact 8 is not based upon substantial competent evidence, for the reasons stated in the exceptions. It is therefore modified as follows:

   
   

   8. Respondent did not inform Petitioner of his involvement with Tri-City in spite of the fact that he had his secretary research the School Board rule with regard to doing community work on School Board time and that secretary reported back to him that if the organization was school-allied and if he were granted permission by his supervisors", he could conduct such business on School Board time. Respondent was required to seek administrative authorization to become involved with Tri-City on School Board time, and he failed to do so.

   
   

3. Finding of Fact 46 is not based upon substantial competent evidence, for the reasons stated in the exceptions. It is therefore modified as follows:

   
   

   46. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Respondent, however, was under a specific written directive to notify his supervisor any time he left the office and he was to explain the reason, and he failed to do so.

   
   

4. Finding of Fact 76 is not based upon substantial competent evidence, for the reasons stated in the exceptions. It is therefore modified as follows:

   
   

   76. After the meeting held on September 28, 1993, and on that same day, Respondent was "redeployed" (moved) from his office to another location. The locks on his former office were changed. Although given a whole afternoon and part of the next day to move, Respondent, in his haste, left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related unsealed, previously opened personal mail which was clearly addressed to Respondent. Some of this previously opened, unsealed personal mail was taken out and reviewed by Respondent's secretary.

   
   

5. The Hearing Officer's Conclusions of Law be and the same are adopted in this Final Order of The School Board of Dade County, Florida, except for 85, 90, and 95.

   
   

6. Conclusion of Law 85 is modified as follows:

   
   

   85. Petitioner has demonstrated that Respondent used its equipment for non-Petitioner related business. The evidence further shows that it was common practice for Petitioner's employees at Respondent's workplace to use the same equipment for limited personal use. There was no evidence to show that the equipment was negatively impacted by Respondent's use or the use of equipment at his request; however, Respondent's use of the equipment far exceeded the personal use of the other employees at Respondent's workplace and was excessive.

7. Conclusion of Law 90 is modified as follows:

   
   

   90. Petitioner has demonstrated that Respondent received Tri-City and other visitors at his workplace. It was common practice for Petitioner's employees at Respondent's workplace to receive visitors for limited visits. Petitioner presented evidence to show that the visits to Respondent were excessive and that the visits occurred outside of Respondent's designated lunch period.

   
   

8. Conclusion of Law 95 is modified as follows:

   
   

   95. Because of the correction of the erroneous conclusions of law in 85 and 90, Petitioner has shown that Respondent has engaged in transgressions spanning approximately a three year period. Respondent's transgressions rise

   to the level warranting a suspension and dismissal.

   
   

9. As a result of the modified Conclusion of Law 85, 90, and 95, and the adopted citations in the Exceptions, Edward E. Smith be and is hereby found guilty of failing to conduct himself in a manner that reflects credit upon himself and the school system by engaging in misconduct. Grounds exist to increase the penalty.

   
   

10. The suspension without pay of Edward E. Smith be and is hereby affirmed; and

    
    

11. The employment of Edward E. Smith be and is hereby terminated, and Edward E. Smith shall forfeit all compensation from March 23, 1994, through June 30, 1994.

DONE AND ORDERED this 20th day of September, 1995.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By Holmes Braddock

Chairperson

Filed with the Clerk of The School Board of Dade County, Florida, this 21st day of September 1995.

APPEAL OF FINAL ORDER

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), Florida Statutes, and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of the rendition of this Order.

Docket for Case No: 94-002005

Orders for Case No: 94-002005