vs.
Respondent.
) Case No. 06-2828
Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH), in LaBelle, Florida, on September 20, 2006.
For Petitioner: Daniel H. Kunkel, Esquire
For Respondent: Robert J. Coleman, Esquire
The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to
terminate Respondent's employment as an educational support employee.
On April 4, 2006, Petitioner terminated Respondent's employment. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to conduct the administrative hearing.
At the hearing, Petitioner presented the testimony of five witnesses and submitted 10 exhibits for admission into evidence. Respondent testified, presented the testimony of another witness, and submitted 10 exhibits for admission into evidence.
The identity of the witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on October 4, 2006. The ALJ granted the joint request for an extension of time to file proposed recommended orders (PROs), and the parties timely filed their respective PROs on November 6, 2006.
Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from
July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005).
The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On
March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present.
By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing).
Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2
Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3
Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the
assignment of an ALJ within 15 days of the date Petitioner received the request for hearing.
The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part:
In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process
. . . .
Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides:
The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures:
A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final
as to the sufficiency or insufficiency of the grounds for termination of employment.
A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS.
120.68. The Association shall be notified when any Association member is to be terminated.
Petitioner's Exhibit 11.
Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005).
Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20,
2006. The sole issue that Respondent included in the Joint
Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent.
If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action.
For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent.
Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded
4.5 hours.
Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m.
The workday included one unpaid meal break for
30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break.
Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m.
On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy.
Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours.
The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately
5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space.
Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday.
The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties in this proceeding. § 120.57(1), Fla. Stat. (2006). The parties received adequate notice of the formal hearing.
Respondent challenges the subject matter jurisdiction in this proceeding on the grounds that Petitioner failed to refer
the matter to DOAH and failed to ensure that the hearing was conducted within the statutorily prescribed timelines for each action. §§ 120.569(2)(a) and 1012.40(2)(c), Fla. Stat. (2005);
8 CBA § 8.074b. A determination of whether the failures affected subject matter jurisdiction in this proceeding requires some analysis of relevant statutory and judicial authority.
The first failure occurred when Petitioner did not request the assignment of an ALJ within 15 days of the date that Petitioner received the request for a hearing. § 120.569(2)(a), Fla. Stat. (2005). The statute requires in relevant part:
If the agency requests an administrative law judge from the division, it shall so notify the division within 15 days after receipt of the . . . request.
§ 120.569(2)(a), Fla. Stat. (2005).
The second failure occurred when Petitioner allowed the 60-day timeline for conducting the administrative hearing to expire before requesting the assignment of an ALJ.
§ 1012.40(2)(c), Fla. Stat. (2005); 8 CBA § 8.074b. The relevant portions of Subsection 1012.40(2)(c), Florida Statutes (2005),
state:
In the event a district school superintendent seeks termination of an [educational support] employee . . . [t]he employee shall . . . have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process . . . .
The CBA provides, in relevant part:
* * *
b. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services . . . shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120.
Petitioner's Exhibit 1.
Petitioner relies on judicial authority holding that the statutory timeline for commencing a proceeding to discipline a professional license is jurisdictional. Edgerton v. International Company, Inc., 89 So. 2d 488, 489 (Fla. 1956). The statutory timeline at issue in Edgerton was prescribed in former Subsection 511.051(5), Florida Statutes (1953). The statute provided in relevant part:
Every proceeding for suspension or revocation under this section shall be commenced within sixty days after the cause for suspension or revocation . . . arises.
§ 511.051(5), Fla. Stat. (1953).
In Edgerton, the state agency mailed the written notice of the alleged violation on day 59 of the 60-day timeline, but the licensee did not actually receive the notice until day 61. The court held that the proceeding commenced on the day the licensee received the written notice, and the failure to commence the proceeding within the 60-day statutory timeline deprived the agency of authority to commence the proceeding. The court
reasoned that the license discipline proceeding was commenced in the same manner as a criminal proceeding. In relevant part, the court stated:
Administrative authorities . . . cannot rightfully dispense with any of the essential forms of proceedings which the legislature has prescribed for the purpose of investing them with power to act. A commission may not assert the general power given it and at the same time disregard the essential conditions imposed upon its exercise.
Edgerton, 89 So. 2d at 489-490.
In 1994, the Florida Supreme Court acknowledged the that the holding in Edgerton was controlling under the Administrative Procedure Act (APA), Chapter 120, Florida Statutes (1994). Carter v. Department of Professional Regulation, 633 So. 2d 3, 6 (Fla. 1994). In Carter, the court wrote:
We acknowledge that the time limit within which an agency must commence disciplinary proceedings may be jurisdictional. See Edgerton v. International Co., 89 So. 2d 488 (Fla. 1956)(Hotel and Restaurant Commission lacked jurisdiction to initiate disciplinary proceeding because it did not do so within statutory time limit). We, however, cannot agree with Carter's contention that time limits such as those in section 455.225 that shift responsibility throughout the disciplinary process also are jurisdictional.
Id.
The timelines at issue in this proceeding are
distinguishable from those in Edgerton for at least three reasons. First, this is not a license discipline proceeding.
Second, this proceeding is not analogous, in any respect, to a criminal prosecution. Finally, a proceeding for termination of employment does not commence either when the agency requests the assignment of an ALJ or when the ALJ commences the administrative hearing. Rather, the proceeding to terminate Respondent's employment began on April 4, 2006, when Petitioner initiated the termination of Respondent's employment.
The timelines at issue in this proceeding merely shift responsibility throughout the termination proceeding between Petitioner and DOAH. The timelines are procedural timelines similar to those at issue in Carter.
The timeline for requesting the assignment of an ALJ shifts responsibility from the referring agency to DOAH. Once Petitioner requests the assignment of an ALJ, Petitioner has no authority to take further action in the proceeding except as a party litigant. § 120.569(2)(a), Fla. Stat. (2005).
The timeline for requesting the assignment of an ALJ functions as a legislative mandate for Petitioner to refrain from further action in the proceeding, except as a party litigant, no later than 15 days after receiving the request for hearing. However, Petitioner does not automatically lose authority to take further action in the proceeding when Petitioner, as it did in this case, fails to request the assignment of an ALJ within the legislatively mandated 15-day time limit.
The statutory prohibition against further action by Petitioner is not absolute, but arises only as long as DOAH has jurisdiction. The statute provides in relevant part:
The referring agency shall take no further action with respect to a proceeding under s. 120.57(1), except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1). (emphasis supplied)
§ 120.569(2)(a), Fla. Stat. (2005).
Neither the failure to timely request the assignment of an ALJ nor the failure to conduct a hearing in a timely manner is a ground for dismissal if the failure is harmless error within the meaning of Section 120.68, Florida Statutes (2005). The failure is harmless error unless the delay prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. Compare Carter, 633 So. 2d at 5 (statutory requirements concerning agency investigation are not jurisdictional) and Department of Business Regulation v. Hyman,
417 So. 2d 671 (Fla. 1982) (statutory time limit for issuance of agency final order is procedural and not jurisdictional).
A preponderance of the evidence does not support a finding that the delays caused by the failures to comply with statutory timelines prejudiced Respondent. Neither delay impaired the fairness of the proceeding or the correctness of the action. Cf. Kasdaglis v. Department of Health of the State of
Florida, 827 So. 2d 328, (Fla. 4th DCA 2002) (delay in issuing final order of approximately eight months that caused financial losses to licensee impaired the fairness of the proceeding).
The foregoing interpretation of relevant statutes does not impermissibly impair the contractual right under the CBA to a hearing within 60 days of the date that Petitioner received the request for hearing. Art. I, § 10, Fla. Const. Courts do not interpret the constitutional prohibition against the impairment of contracts as a strict prohibition against any impairment. Pomponio v. The Claridge of Pompano Condominium, Inc., 378 So. 2d 774, 776 (Fla. 1979). Rather, courts determine how much impairment is tolerable by:
[W]eigh[ing] the degree to which a party's contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state's objective, or whether it unreasonably intrudes into the parties' bargain to a degree greater than is necessary to achieve the objective.
Pompanio, 378 So. 2d at 780.
The degree to which the interpretation of relevant statutes impairs the contractual rights of Respondent is slight. The effect is limited to a procedural right and does not reach any property interest held by Respondent. Compare Pompanio, 378
So. 2d at 780 (effect of statute authorizing deposit of rent into court registry during litigation was not merely a procedure for the deposit of rents, but included economic deprivation and potential erosion of value).
Respondent had a separate remedy for the alleged breach of his contractual right to hearing within 60 days of the request for hearing. The CBA authorized a grievance procedure for the alleged violation of any provision in the CBA. Art. 6 CBA § 6.02.
On the other side of the ledger is the Petitioner's interest in the management of each school in the District. On balance, the degree of impairment of contractual rights is tolerable in light of the competing state interest in public education.
The remaining issue is whether Petitioner had just cause to terminate the employment of Petitioner. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
For reasons stated in the findings of fact, Petitioner satisfied its burden of proof by the requisite evidentiary
standard. Petitioner showed by a preponderance of the evidence that Respondent committed the acts alleged in the written notice of termination and that termination of employment is a reasonable discipline.
RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee.
DONE AND ENTERED this 11th day of December, 2006, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 11th of December, 2006.
1/ Counsel for Respondent raised the jurisdictional issue at the outset of the hearing and briefed the issue in his PRO.
3/ Respondent's PRO argues that the written notice of termination was deficient because it incorrectly stated that any hearing would be conducted pursuant to Art. 8.09(a) and (b) rather than Art. 8.074(a) and (b). The ALJ rejects the argument because the inaccuracy was harmless error. The preceding sentence in the written notice of termination refers Respondent to the correct CBA provision.
4/ The letter requesting a hearing was dated April 28, 2006, and was sent by certified mail, return receipt requested. The record does not disclose the date Petitioner actually received the request for hearing, but counsel for Petitioner does not dispute that Petitioner referred the request to DOAH more than
15 days after receiving the request.
Daniel H. Kunkel, Esquire Kunkel, Miller & Hament Orange Professional Centre
Robert J. Coleman, Esquire Coleman & Coleman
Daniel J. Woodring, General Counsel Department of Education
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
Thomas W. Conner, Superintendent Hendry County School Board
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.
