STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 97-0859

)

WILLIE VANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone conference call on January 13, 1998, with the parties to appear at Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Luis M. Garcia

Assistant School Board Attorney School Board of Dade County, Florida

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether the Respondent should be disciplined as alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on February 6, 1997, when the Petitioner, School Board of Dade County, Florida (Board), notified Respondent, Willie Vance, of its action to suspend the employee from his employment with the Board and its intention to initiate dismissal proceedings. The Board alleged just cause for such action based upon the Respondent's alleged excessive absenteeism and conduct unbecoming a School Board employee. Thereafter the Respondent timely filed a challenge to the proposed action, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on February 24, 1997.

An order was entered requiring specific charges in this cause. By Notice of Specific Charges filed on August 8, 1997, the Respondent was charged with deficient performance in his duties as a lead custodian, excessive absenteeism or abandonment of position, gross insubordination and willful neglect of duty, conduct unbecoming a School Board employee, and violating School Board rules.

At the hearing, the School Board requested, and official recognition has been taken, of provisions of the Rules of the School Board of Dade County, Florida, which are included in this record as Petitioner's Exhibits 1 through 3. Additionally, the School Board requested official recognition of provisions of Florida law found in Chapters 230, 231, and 447. Such request

was also granted.

The School Board presented testimony from Dr. Thomasina O'Donnell, the director for the Board's Office of Professional Standards; and Susan Lilly, a School Board payroll officer. The Board's exhibits numbered 4 through 56 were admitted in to evidence. The Respondent did not appear, and no evidence was presented in his behalf.

The transcript of the proceeding was filed on February 18, 1998. Thereafter, the Petitioner moved for an extension of time to file a proposed recommended order. Such motion was granted and the parties were granted leave until 5:00 p.m., March 23, 1998, to file such proposed orders. The proposed order filed by the School Board has been duly considered in the preparation of this order. The Respondent has not filed a proposed order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Respondent, Willie Vance, was employed as a lead custodian at Ponce de Leon Middle School in Dade County, Florida.

2. Over the course of several years, starting as early as 1986, Respondent was counseled regarding the personnel rules and employment requirements for continued employment with the School Board.

3. More specifically, Respondent was advised that absenteeism presented a hardship in the workplace and that he would not be permitted to adversely affect the normal operation

   of the school. In this regard, Respondent was referred to the Petitioner's Employee Assistance Program on at least two occasions.

4. In May 1990, Respondent was cited for excessive absenteeism and reminded of the collective bargaining agreement provisions which outline when absences may be grounds for termination.

5. In the years that followed, Respondent continued to have difficulty complying with the regulations regarding absences. He was cited for failing to adhere to the procedures for reporting absences.

6. As lead custodian Respondent was responsible for opening the school at the beginning of each school day.

7. On several occasions, school staff were left to wait for Respondent to arrive to open the school or turn off security alarm systems.

8. Respondent's attendance problem increased and in 1995 he received verbal and written directives regarding his attendance and work performance.

9. By January 1996, Respondent's conduct had not improved. Instead, his continued failure to abide by the directives regarding attendance and work performance led to an incident wherein Respondent used profane and vulgar language and threatened a member of the school staff with bodily harm. These acts occurred in the presence of students and staff members.

10. On February 9, 1996, Respondent was directed to refrain from threatening and/or verbally abusing other staff members. More important, Respondent was advised that continued behavior would result in further disciplinary action.

11. On February 29, 1996, Respondent was absent from work, failed to timely alert school staff that he would not be at work, and, as a result, the school did not open on time.

12. On March 18, 1996, Respondent was absent from work without prior authorization and did not report his absence to school administrators.

13. On March 19, 1996, Respondent failed to sign out on the payroll sheet as all employees had been directed.

14. On March 20, 1996, Respondent failed to report to work without prior authorization from the school principal.

15. On March 26, 1996, Respondent was issued a written warning that his continued failure to perform his assigned duties and repeated indifference to the directives regarding attendance would result in further disciplinary measures.

16. On April 2, 1996, Respondent was advised that continued failure to follow directives would be considered insubordination.

17. On April 11, 1996, Respondent failed to report for work, failed to give notice of his absence, and failed to open the school timely. Since no one knew Respondent would be absent, no administrator could cover for Respondent. As a result, on this date the school mail was not delivered (including employees'

    paychecks).

    
    

18. On April 24, 1996, Respondent was notified that if his performance did not improve by the end of the 1995-96 school year, that a recommendation for disciplinary action would be made to the School Board by the principal.

19. In May 1996, the principal was notified that Respondent had failed to follow through with the Employee Assistance Program's recommendations.

20. Subsequently, Respondent's conduct deteriorated. On May 31, 1996, he made a threat to another staff member; on

    June 4, 1996, he had a verbal altercation with another custodian; on June 7, 1996, he was absent without prior approval; on July 9, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 17, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 22, 1996, he was absent from work without prior authorization; and on July 23, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time.

21. On July 24, 1996, Respondent was issued a written warning again advising him that his continued failure to comply with procedures could not be tolerated. He was advised that his performance was unacceptable, that it was having a detrimental effect on his co-workers, and that continued failure would be considered neglect of duty and gross insubordination.

22. On September 11, 1996, in the presence of students, Respondent was verbally abusive and threatening to an assistant principal.

23. On September 25, 1996, Respondent had another altercation with a co-worker. Respondent threatened the employee by holding a gasoline container and suggesting he would pour gasoline over the worker and light a match.

24. Despite additional warnings and conferences with Respondent, Respondent failed to abide by the directives from school administrators. The directives were reasonable in nature and related to the offensive and inappropriate behavior exhibited by Respondent. Nevertheless, Respondent did not improve.

25. From October 1996 through January 6, 1997, Respondent continued to exhibit an indifference to the directives from school personnel. He continued to fail to report to work and, on January 6, 1997, did not report his absence.

26. On February 5, 1997, the School Board took action to suspend Respondent from his employment with the school district and to initiate dismissal proceedings against him.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

28. Section 231.44, Florida Statutes (1997), entitled Absence Without Leave, provides that:

    Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board.

    
    

29. School Board Rule 6Gx13-4E-1.011, provides that an "employee who is absent for other than reason of sudden illness, emergency or without such prior approval, shall be deemed to have been willfully absent without leave."

30. Section 447.209, Florida Statutes (1997), states in pertinent part that:

    It is . . . the right of the public employer to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.

    
    

31. Petitioner is empowered by law to "terminate . . . (an) employee for reasons stated in the collective bargaining agreement . . ." Section 231.3605(2)(b), Florida Statutes (1997).

32. Section 230.23(5)(f), Florida Statutes (1997), lists the authority bestowed on a school board in dismissing an employee of the school system and provides in pertinent part:

    Suspension and dismissal and return to annual contract status. Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees . . .

    
    

33. Section 231.001, Florida Statutes (1997), provides the school board with the authority to issue policies relating to personnel matters and states that:

    Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.

    
    

34. The Collective Bargaining Agreement between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184 ("AFSCME labor contract"), provides in pertinent part:

    Article II - Recognition:

    
    

    Section 3. . . . It is understood that management possess the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with other provisions of the agreement. These rights include, but are not limited to, . . . A. Discipline or discharge of any employee for just cause. . .

    * * * Article V - Definitions:

    Section 27. Unauthorized absences - Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five (5) days in advance.

    
    

    Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent.

    
    

    Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as an unauthorized absence and may result in disciplinary action in accordance with Article XI. . . . [N]othing herein precludes requested leave being determined to

    be unauthorized where the employee does not have available sick or sufficient personal leave.

    
    

35. Further, Article XI, Section provides in pertinent part:

    Section 4. Types of Separation

    
    

    Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of four distinct types of separation.

    
    

    * * *

    
    

    1. Excessive Absenteeism/Abandonment of Position - An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling ten (10) or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination.

       
       

    2. Disciplinary - The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities.

       Such action occurs at any necessary point and time. (Emphasis added).

       
       

36. In this case, the Petitioner has established by clear and convincing evidence that the Respondent failed to abide by the directives of the school administrators, failed to perform his duties in accordance with such reasonable directives, failed to comply with the School Board's attendance policies and procedures, and violated School Board rules by failing to comply with such measures and by threatening other School Board employees. Notwithstanding numerous efforts of assistance,

    Respondent failed to improve.

    
    

37. It is concluded the School Board has presented sufficient grounds and just cause for termination of this employee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a Final Order sustaining the suspension without pay previously entered, and dismissing Respondent from his employment with the School Board.

DONE AND ENTERED this 31st day of March, 1998, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998.

COPIES FURNISHED:

Dr. Roger C. Cuevas Superintendent

Dade County Public Schools 1450 Northeast Second Avenue Suite 403

Miami, Florida 33132

Frank T. Brogan Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Luis M. Garcia, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Willie Vance, pro se 3682 Grand Avenue, No. 3

Miami, Florida 33133

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000859

Orders for Case No: 97-000859