STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4822

)

STEVE GUANCHE, )

)

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 March 26 and 27, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Gerald A. Williams, Esquire

Mack, Williams, Haygood and McLean, P.A. 980 North Federal Highway, Suite 305 Boca Raton, Florida 33432

For Respondent: Leslie W. Langbein, Esquire

Langbein and Langbein, P.A.

20801 Biscayne Boulevard, Suite 506

Aventura, Florida 33180 STATEMENT OF THE ISSUES

Whether the School Board has just cause for taking disciplinary action against Respondent, a school board employee. If it does have just cause, whether termination of employment is appropriate or whether other discipline should be imposed. If it does not have just cause, the appropriate remedy to which Respondent is entitled.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was employed by the School Board on a full-time basis as an electrician and on a part-time basis as an instructor at William Turner Technical School, a public school in Dade County, Florida. On March 16, 1995, the Superintendent of Schools notified Respondent that he was recommending to the School Board at its next regularly scheduled meeting that Respondent's employment (both part-time and full-time) be suspended pending termination, for conduct unbecoming a School Board employee and insubordination. The School Board adopted the Superintendent's recommendation at its meeting of March 22, 1995. Respondent timely challenged the proposed agency action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

All witnesses in this proceeding were School Board employees or former employees. The Petitioner called as its witnesses Jeffery Price, Raymond Singler, Max Metzger, Eddie Pryor, Kenneth MacFarlane, Peter Vadas, Scott Ellinport, and Maria Davis. Respondent testified on his own behalf and called as additional witnesses Louise Harms, Tracy Scott, Patrick O'Brien and Patrick Gray. Dr. Gray's testimony was taken telephonically on April 5, 1996. The Petitioner presented twelve exhibits, each of which was admitted into evidence. The Respondent presented 23 exhibits, thirteen of which were admitted and ten of which were rejected.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for 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. Petitioner is a duly constituted School Board responsible for the control and supervision of all free public schools within the school district of Dade County, Florida. Petitioner is a public employer and a political subdivision of the State of Florida.

   
   

2. Respondent was employed by the Petitioner in a permanent full-time position as an Electrician II, which is a journeyman electrician position, from December 6, 1983, when he was hired under the name of Guarino Delgado Guanche, III, until the School Board voted to terminate his employment on March 22, 1995. Respondent was an "educational support employee" as that term is defined by Section 231.3605(1), Florida Statutes. 1/

   
   

3. Respondent is a member of the Dade County School Maintenance Employee Committee (DCSMEC) bargaining unit. Although he is not a member of that union, the terms and conditions of his employment are set forth in the collective bargaining agreement between the DCSMEC and the Petitioner and by pertinent rules and policies adopted by the School Board. The collective bargaining agreement does not have a negotiated discipline code with an itemized list of disciplinary offenses or range of penalties and it does not require that Petitioner administer progressive discipline as to employees covered by the agreement. Article IV of that agreement reserves unto the School Board the right to discipline, suspend, or terminate the employment of any employee for "just and good cause."

   
   

4. The Petitioner has not promulgated disciplinary rules or standards for educational support employees. There are no published rules, policies, procedures, or guidelines which put educational support employees on notice of the standard of conduct expected of them or the range of penalties that they may suffer for infractions. Decisions concerning the level of discipline to be imposed against educational support employees are made by administrators on a case-by-case basis. Rule 6Gx13-4A-1.21 adopted by Petitioner pertains to conduct of all permanent employees, and provides in pertinent part as follows:

   
   

   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 credit upon them- selves and the school system.

      
      

5. The Petitioner has no published rules, policies, procedures, criteria, or guidelines concerning allegations of misconduct by educational support employees and how those allegations are investigated. There was insufficient evidence to establish that any investigation pertinent to this proceeding was inappropriate or deprived Respondent of due process.

   
   

6. From September 1993 until the School Board's action of March 22, 1995, Respondent was also employed by Petitioner as a part-time instructor at William Turner Technical School (Turner Tech), a public school in Dade County. The School Board's action of March 22, 1995, included the termination of Respondent's employment at Turner Tech. There was no evidence that Respondent had entered into a written contract with Petitioner pertaining to his employment at Turner Tech, and there was no evidence concerning the terms and conditions of this employment.

   
   

7. One does not have to already be a School Board employee to obtain part- time employment as an instructor at Turner Tech. A full-time employee of the School Board can seek and hold part-time employment at Turner Tech, and one type of employment is not dependent on the other.

   
   

8. Prior to his employment at Turner Tech, Respondent underwent a review by the Petitioner's Office of Professional Standards and received authorization by that office to be hired.

   
   

9. There was sufficient enrollment in Respondent's class to sustain the class being taught. Consequently, Respondent had a reasonable expectation of retaining his part-time employment at Turner Tech. The School Board required good cause to terminate that employment.

   
   

10. It is the Petitioner's practice to dismiss an employee from all positions of employment with Petitioner if there exists just cause to dismiss the employee from his primary position of employment. That policy has not been adopted by a rule, but is rational.

    
    

11. The recommendation of the Superintendent of Schools to the School Board was based on events that occurred July 6, 1994. The School Board based its action of March 22, 1995, on the Superintendent's recommendation. This recommendation included the suspension of Respondent's total employment without pay pending termination proceedings on the grounds of conduct unbecoming a School Board employee or insubordination. 2/

    
    

12. By its "Notice of Specific Charges" filed in this de novo proceeding, Petitioner notified Respondent that it was asserting additional incidents of alleged misconduct in support of its action. This notice timely advised Respondent as to these additional charges of misconduct.

    
    

13. Conferences for the record (CFRs) are used by the Board as a fact- finding forum that often lead to discipline, but CFRs are not a form of discipline. While Respondent was the subject of several CFRs during his employment with the School Board, his only prior discipline consisted of a reprimand in 1984 for attendance problems and a reprimand in 1993 for violation of break time rules.

14. Disciplinary measures that can be imposed against an employee without action of the School Board are oral counseling, written reprimands, and involuntary transfers. Suspensions or dismissals require School Board action.

    
    

    THE INCIDENT OF JULY 6, 1994

    
    

15. At the times pertinent to the incident of July 6, 1994, Respondent was working on an electrical installation project at Treasure Island Elementary School. His foreperson was Jeff Price. Respondent and Mr. Price were close personal friends.

    
    

16. Respondent's assignment, pertinent to this proceeding, was to install three electrical conduits (referred to as raceways) pursuant to a sketch that had been provided by an electrical engineer in the Mechanical Section. Respondent encountered difficulties with a concrete beam, which impeded the installation of the three raceways as designed by the electrical engineer. Respondent determined that the installation of two raceways would suffice and would meet code. Respondent showed Mr. Price calculations purporting to justify the installation of only two raceways. Respondent thereafter installed only two raceways. Reducing the number of raceways constituted a major change in the planned work. Respondent thought that Mr. Price knew that he was only installing two raceways and he thought that Mr. Price had approved that change. Although a foreperson has the authority to authorize major field changes, the evidence failed to establish that Mr. Price authorized the changes or that he knew that Respondent was only installing two raceways. Although the installation of the two raceways by Respondent passed inspection, it was subsequently necessary for Petitioner to correct Respondent's work. 3/

    
    

17. Ray Singler, a Coordinator I in Petitioner's Mechanical Section, was responsible for overseeing the electrical project at Treasure Island Elementary School. In a subsequent inspection, Mr. Singler discovered that only two raceways had been installed. He discussed this modification with Mr. Price, who told Mr. Singler that he was unaware of the change. Mr. Singler suspected that Respondent had intentionally failed to follow the original plans and had been insubordinate.

    
    

18. To learn why Respondent had made this change, Mr. Singler scheduled a conference for the record (CFR) with Respondent for the last hour of Respondent's workday on July 5, 1994. This CFR could have resulted in Respondent being disciplined since Respondent had no authority to reduce the number of raceways. Mr. Price attended the CFR and responded to questions asked by Mr. Singler in a yes or no fashion. Mr. Price did not volunteer any information, and indicated that he did not know why Respondent had installed only two raceways. Mr. Price did not tell Mr. Singler that he and Respondent had had conversations about the modification. Respondent testified that because of their friendship, he was "shocked" to see Mr. Price at the CFR since Mr. Price had not told him that he would be at the CFR. Respondent also testified that he was upset and confused by what he considered Mr. Price's failure to be totally forthcoming.

    
    

19. On July 6, 1994, Mr. Price's work crew was assigned to Meadowland Elementary School. They were using a classroom as an office, storage area, and breakroom. On that morning, Mr. Price gave his crew their assignments and then walked around to observe their various jobs. Respondent was not at his assigned work site.

20. When Mr. Price returned to the classroom they were using, Respondent was in the room waiting for him. Respondent was seated at a table holding a mug of coffee he had brought from his home. Following a brief conversation as to the CFR that occurred the day before, Mr. Price told Respondent to return to work. Respondent then threw the mug of cold coffee on Mr. Price, hitting his face and shirt. 4/

    
    

21. There is no evidence that anyone, including other employees, saw or overheard the incident.

    
    

22. Following a brief, nonviolent conversation, Mr. Price left the room and asked his supervisor, Kenneth MacFarlane, for permission to go home to change his clothes. Mr. MacFarlane authorized Mr. Price to go home and recommended to him that he call the school police.

    
    

23. Mr. Price testified that he waited two days to call the school police because he expected Respondent to apologize for the incident. After Respondent failed to apologize, Mr. Price called the school police, who treated the incident as a "battery". Mr. Price signed a form by which he agreed not to bring criminal charges against Respondent.

    
    

24. Thereafter, Respondent was transferred to another work crew where he worked until his employment was suspended by the School Board pending termination proceedings.

    
    

    THE INCIDENT OF JUNE 8, 1992

    
    

25. Health Examinetics is an outside firm that Petitioner hired pursuant to its health care cafeteria plan for employees to receive health examinations on school sites.

    
    

26. On June 8, 1992, Kevin McCarthy, an administrator, visited a Health Examinetics' trailer that had been set up on school grounds. This visit had been approved by Mr. McCarthy's supervisor.

    
    

27. On June 8, 1992, Respondent submitted to Max Metzger, an administrator above Mr. McCarthy, a hand written complaint that Mr. McCarthy was using work time for his health examination. This memo reflected that Respondent, during hours that he should have been working, kept Mr. McCarthy's activities under surveillance. Respondent reported that he saw Mr. McCarthy enter the health examination area and that Mr. McCarthy did not exit that area until over an hour later. Respondent obtained a copy of the sign-in sheet that reflected Mr. McCarthy's signature. Respondent's observation of Mr. McCarthy and his copying of the sign-in sheet were unauthorized acts and constituted a misuse of Respondent's work time. This incident was included in the Notice of Specific Charges, but information as to this incident was not provided the School Board for its meeting of March 22, 1995.

    
    

    THE INCIDENT OF DECEMBER 21, 1994

    
    

28. While the Office of Facilities Operation was reviewing Respondent's status, an incident occurred that Petitioner asserts supports its decision to terminate Respondent's employment. This incident was also included in the Notice of Specific Charges. Information as to this incident was not provided the School Board for its meeting of March 22, 1995.

29. On December 20, 1994, Respondent was advised that his classroom at Turner Tech was going to be used the next day by Scott Ellinport, an alarm trade supervisor employed by the Petitioner. Mr. Ellinport's office had developed a test designed to determine whether a candidate for employment as an alarm worker has the requisite skills to perform the work. Electricians frequently apply for employment as alarm workers.

    
    

30. Mr. Ellinport had hired several alarm contractors to take a practice test to ensure the integrity of the test. The practice test was to be administered on December 21, 1994, in the classroom Respondent used to teach his night class at Turner Tech. This classroom had two doors on the exterior wall. One door was a conventional door and the other was a large, roll-up door.

    
    

31. On December 21, 1994, Respondent was assigned to work at Miami Edison Senior High School under the supervision of Tracy Scott, a lead electrician and acting foreperson. On his way to work, Respondent's vehicle broke down during a rain storm. Because of his proximity to Turner Tech, Respondent had his vehicle towed to that location.

    
    

32. At Turner Tech, Respondent talked to Patrick O'Brien, an instructor who was the supervisor for his part-time employment. Mr. O'Brien gave Respondent a cup of coffee and let him use his telephone. Respondent also talked to a janitor who worked at Turner Tech. Respondent was not authorized by Mr. O'Brien or by any other person in a position of authority to enter the classroom while Mr. Ellinport was using the room.

    
    

33. Respondent entered the classroom at a time he knew the room was being used by Mr. Ellinport for this practice test. When he entered the classroom at approximately 8:50 a.m., Mr. Ellinport was briefing the people who were to take the alarm worker test and the wiring and other materials that were to be used during the test were displayed on a table. Respondent entered the classroom and walked all the way across the classroom to the exterior wall. He opened the conventional door and began to open the roll-up door when Mr. Ellinport stopped him. Respondent stopped what he was doing and immediately left the classroom when asked to do so by Mr. Ellinport. 5/ Respondent was in the classroom approximately four minutes.

    
    

34. Respondent disrupted the administration of the test by Mr. Ellinport. Mr. Ellinport testified, credibly, that Respondent's presence in the classroom also compromised the integrity of the alarm worker examination because Respondent was able to observe the wiring scheme that was being tested. This information would benefit a person in his preparation for the examination.

    
    

35. Respondent's workday for December 21, 1994, was scheduled to begin at 7:00 a.m. After his vehicle broke down, Respondent beeped Tracy Scott, the lead electrician with whom he was working that day to advise that he would arrive at work as soon as he could. Respondent thereafter arrived at his work site and worked part of the day. Respondent did not work a full eight hour shift on December 21, 1994.

    
    

36. At the end of the workday on December 21, 1994, Mr. Scott filled out a form entitled "Daily Status Report" that reflected that he and Respondent had worked a full eight hour shift that day. This Daily Status Report does not reflect that Respondent spent part of his work day at Turner Tech due to car problems. Respondent signed this form that reflected this incorrect information. After Respondent returned to work from the Christmas break, he

    completed and signed a time card that incorrectly reflected that he worked eight hours on December 21, 1994.

    
    

37. During the course of his employment, Respondent has filed grievances and memoranda about such subjects as health and safety issues, inequitable treatment, inefficiency, and abusive behavior by supervisors. Some of these grievances had been taken to outside agencies such as the Equal Employment Opportunity Commission and the Public Employee Relations Commission. Some of the grievances and memoranda concerned supervisors and administrators such as Max Metzger, Eddie Pryor, Ray Singler, Mike Brush, and Vernon Holloway.

    
    

38. Prior to the School Board action of March 22, 1995, the recommendation to terminate Respondent's employment was made by Peter Vadas and ratified by Dr. Patrick Gray. There was insufficient evidence to establish Respondent's contention that either of these two administrators considered Respondent a "troublemaker" (the term used by Respondent) or that the decision to terminate his employment was "retaliatory". The greater weight of the evidence established that both of these administrators based their recommendations solely on what they perceived to be misconduct by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

40. An educational support employee who has completed a period of probationary employment may expect his employment to continue from year to year unless, pursuant to Section 231.3605(2)(b), Florida Statutes, " . . . the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule where a collective bargaining agreement does not exist. "

    
    

41. The Petitioner's collective bargaining agreement with the Dade County School Maintenance Employee Committee pertains to this proceeding. Article IV of that agreement reserves unto the School Board the right to discipline, suspend, or terminate the employment of any employee for "just and good cause." That collective bargaining agreement does not require that Petitioner administer progressive discipline. No School Board rule requires that Petitioner administer progressive discipline.

    
    

42. Petitioner has the burden of establishing by a preponderance of the evidence that it has just and good cause to terminate Respondent's employment. See, Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990) and Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3d DCA 1990).

    
    

43. Petitioner met that burden by establishing that Respondent threw coffee in his supervisor's face and on his shirt on July 6, 1994. That act constitutes conduct unbecoming a School Board employee (or misconduct) and is viewed as being so egregious as to warrant the termination of Respondent's part- time and full-time employment.

    
    

44. The Respondent's acts of misconduct dealing with his misuse of work time on June 8, 1992, in keeping Mr. McCarthy under surveillance and his disruption of the test being established by Mr. Ellinport on December 21, 1994, justify the discipline of Respondent, but they would not form an independent basis for the suspension or termination of his employment.

45. Respondent's execution of the incorrect Daily Status Report on December 21, 1994, and the subsequent execution of an incorrect time card are acts of misconduct that justify the discipline of the Respondent and, taken in conjunction with the coffee throwing of July 6, 1994, support the conclusion that just and good cause exists for the termination of Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

facts and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's full-time and part-time employment with the Petitioner.

DONE AND ENTERED this 14th day of August, 1996, 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 14th day of August, 1996.

ENDNOTES

1/ Section 231.3605(1)(a), Florida Statutes, defines the term "educational support employee" in pertinent part, as follows:

(1) As used in this section:

(a) "Educational support employee" means any person employed by a district school system who is so employed as a . . . member of the operations department [or] a member of the maintenance department . . .

2/ At the formal hearing, the parties focused on whether the Respondent was guilty of conduct unbecoming a School Board employee, which will be referred to as misconduct.

3/ Petitioner is not attempting to discipline Respondent for deviating from the electrical plan by installing only two raceways. That installation was the reason for the conference for the record with Mr. Price on July 5 and the subsequent incident on July 6, 1994.

4/ Respondent's attempt to explain this as a personal act between two friends is rejected. This act occurred on school property, during work hours, and resulted from a work-related incident.

5/ Although this classroom is not equipped for automobile repair, Respondent apparently intended to use space in the classroom to work on his vehicle. Mr. Ellinport observed the tow truck when Respondent opened the conventional door.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4822

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

1. The proposed findings of fact in paragraphs 1-45, and 49-52 are adopted in material part by the Recommended Order or are subordinate to the findings made.

2. The proposed findings of fact in paragraphs 46, 47, and 48 are rejected as being unnecessary to the conclusions reached since Respondent's absence from his work site was not planned.

3. The proposed findings of fact in paragraphs 53-57 are subordinate to the findings made.

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

1. The proposed findings of fact in paragraphs 1-10, 12-38, 41-50, 52, 53, and 56 are adopted in material part by the Recommended Order or are subordinate to the findings made.

2. The proposed findings of fact in paragraphs 11, 39, 54, and 62 are either adopted by the Recommended Order or are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 40 are rejected as being contrary to the findings made and as to the conclusions reached. The Notice of Specific Charges timely advised Respondent as to these additional grounds. Since this is a de novo proceeding and not merely an appeal of the School Board's action, these additional grounds may be properly considered.

4. The proposed findings of fact in paragraph 51 are rejected as being based on self-serving testimony that lacks credibility or as being unnecessary to the findings made and to the conclusions reached.

5. The proposed findings of fact in paragraph 55 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraphs 57-61 are rejected as being contrary to the findings made or to the conclusions reached.

COPIES FURNISHED:

Gerald A. Williams, Esquire

Mack, Williams, Haygood and McLean, P.A. 980 North Federal Highway, Suite 305 Boca Raton, Florida 33432

Leslie W. Langbein, Esquire

20801 Biscayne Boulevard, Suite 432

Aventura, Florida 33180

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue, No. 403

Miami, Florida 33132-1308

Frank Brogan, Commissioner Department of Education The Capitol

Tallahassee, Florida 32399-0400

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.

Docket for Case No: 95-004822

Orders for Case No: 95-004822