This cause came on for final hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (DOAH) on September 19, 2008, in
Pensacola, Florida.
For Petitioner: Joseph L. Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
The issue is whether just cause exists to terminate the employment of Respondent with the Escambia County School Board (School District or School Board).
Respondent, Andrew Mardesich, was employed by the School District as a leaderman mechanic assigned to the Transportation Department. The School District received information that automobile parts had been installed in a School District employee's private vehicle at the expense of the School District. After investigating the charges, Petitioner concluded that Respondent was involved in a scheme to defraud the School District by falsifying records to conceal the ordering of automobile parts at the School District's expense, to be installed in a private vehicle.
Petitioner first suspended Respondent pending the outcome of the investigation, but later terminated his employment when it believed the charges against Respondent were justified.
Respondent timely petitioned for a formal administrative hearing before DOAH which was conducted on September 19, 2008.
At the final hearing, Petitioner presented the testimony of David Bryant, Karen Nobles, Dr. Alan Scott, and Jeffery Teffs; and offered Exhibits 1 through 9, all of which were admitted into evidence. Respondent testified on his own behalf, and offered Exhibits 1 through 12, all of which were admitted into evidence.
The parties jointly filed a Pre-hearing Stipulation. Upon the request made by Respondent, the undersigned took official recognition of the Nolle Prosequi entered in the criminal case
against Respondent and of the related DOAH Case No. 07-4861 against Respondent's supervisor, Terry Orso. Additionally, official recognition was taken of the Florida Retirement System DROP provisions, Subsection 121.091(13), Florida Statutes (2007), pursuant to which Respondent was deemed a retiree at all times relevant to this proceeding.
References to statutes are to Florida Statutes (2007), unless otherwise noted.
At all times material to these proceedings, Respondent was employed as a leaderman mechanic assigned to the Transportation Department. In this position, he was responsible for ensuring that mechanics properly completed their work and their records. Respondent's direct supervisor was Terry Orso.
The Transportation Department is responsible for maintaining and operating the School District's fleet of school buses, as well as the support vehicles which are generally known as the "white fleet."
The Transportation Department, including the garage for the maintenance of Petitioner's vehicles, is within the same building as the Parts Department. The Parts Department, however, is separated from the garage by a wall to ensure the security of the stocks of parts until these parts are turned
over for installation in and the maintenance of Petitioner's vehicles.
As a leaderman mechanic, Respondent initiated "Repair Orders," which were also known as "Work Orders," and completed part of a "Request for Materials," also known as a "chit" so that parts could be ordered from outside vendors and installed in Petitioner's vehicles requiring repair.
The School District form known as a "Repair Order" requires information, including the vehicle number assigned by Petitioner, mileage of the vehicle, and the vehicle make and year. The form includes a section to identify the repairs to be made.
The practice within the School District is to complete the top portion of the Repair Order when the vehicle is brought in for repairs with the identifying information. Each Repair Order has an identification number.
The person completing the Repair Order is usually, but not always, a leaderman mechanic. Once the vehicle is repaired, the leaderman mechanic initials the form to confirm the correct repairs have been made and that the vehicle has been inspected. The initials of the leaderman mechanic are also written next to the identification number when all repairs are completed.
When a vehicle has been brought to the Transportation Department for repairs, the Parts Department issues a chit.
Once the chit is issued, an employee from the Parts Department, which is usually a leaderman mechanic, completes the upper left portion of the chit. This section identifies the vehicle, the date the request for materials is submitted, the initials of the mechanic submitting the request, the work order number, and the year and make of the vehicle brought in for repair. A Parts Department employee completes the upper right hand portion of the chit with information identifying the date the request for materials is received, the vendor that is contacted, the name of the person from whom the part is ordered at the vendor, and time of the estimated delivery of the parts.
In 2007, Petitioner received information from one of its employees, John Bodie, that parts had been ordered from a vendor at the School District's expense for installation in a private vehicle. Mr. Bodie delivered a letter to the superintendent with copies of Transportation Department records attached. Petitioner initiated an investigation based upon the allegations of Mr. Bodie and the records he provided.
Mr. Bodie alleged that he had been approached by Garage Manager Terry Orso to repair a vehicle owned by another employee, Ms. Diana Archer. Mr. Bodie claimed that, at Mr. Orso's request, he took Ms. Archer's vehicle, which was a 1988 Chevrolet Blazer, to his home to assess the needed repairs. He
made a list of the parts that were needed to repair the Blazer's front end.
Mr. Bodie alleged that, after he agreed to make the repairs, Mr. Orso told him the parts were on Lanny's (Respondent's nickname) desk. Mr. Bodie needed two additional brake calipers and alleged he was told by Mr. Orso that the parts would be ordered. Mr. Bodie received the additional parts and completed the repairs on Ms. Archer's Blazer.
Ms. Archer paid Mr. Bodie for his services.
Ms. Archer's statement was admitted into evidence without objection. She stated that Mr. Bodie repaired her Blazer and that she paid him for the work. She alleged that Mr. Orso told her "not to worry about the parts" and that the cost of the repairs would be $300.00-$350.00.
Since Mr. Bodie admitted to being untruthful in an earlier investigation, Petitioner took extra care when attempting to corroborate his allegations. The investigation revealed that through Repair Order #22721 for School District vehicle #8667, a Chevrolet C-10 pick-up truck, parts were ordered for that vehicle, including parts for "front end repair." A chit was then completed for vehicle #8667 with a request for materials received June 2, 2005. The chit ordered "front end parts." The parts were ordered from a vendor First Call and received at Petitioner's Parts Department the same day.
The parts ordered through Repair Order #22721 for vehicle #8667, the C-10 pickup, would not fit that vehicle. Those parts did fit a 1988 Blazer owned by Ms. Archer and repaired by Mr. Bodie.
Repair Order #22721 bears the initials of Respondent as confirmed by Ms. Karen Nobles, a forensic document examiner. She noted that Respondent has a distinctive style of handwriting and that there was no question that he had initialed the Repair Order in question.
To further corroborate Mr. Bodie's testimony, the School Board Auditor David Bryant was directed to check Petitioner's records to verify whether Mr. Bodie ordered the two calipers after initially receiving the parts to complete the repairs to Ms. Archer's vehicle. Mr. Bryant first checked the service records on vehicle #8667. Finding no calipers ordered in June 2005 for that vehicle, he checked a similar vehicle, #8691, another Chevrolet C-10 pick-up truck. Mr. Bryant located Repair Order #24674 dated June 7, 2005, indicating that brake repairs were needed, specifically "R and R both front brake calipers--flex lines."
Respondent's initials were found on Repair Order #24674 indicating that the work was requested, inspected, and completed. The Repair Order corresponds with a chit for vehicle #8691, and the work order corresponds with the purchase order
for the parts. Ms. Nobles, through forensic examination of these initials, verified that they too belonged to Respondent.
The chit, however, was not completed in the normal manner. It was completed by a Parts Department employee identifying "Lanny" as the person requesting materials and that the "parts were ordered by White Fleet direct." The parts that were ordered were two calipers. As was the case with vehicle #8667, the parts that were ordered would not fit vehicle #8691, a Chevrolet C-10 pick-up truck, but would fit Ms. Archer's Blazer.
Dr. Alan Scott, Assistant Superintendent, received a call from a mechanic telling him that Respondent and another mechanic, Robert Hutto, were planning to bring the C-10 pick-up truck into the garage to make it look as though repairs had been done to the front end of the truck. Dr. Scott and Mr. Bryant moved the truck into an area covered by surveillance cameras and then called the Sheriff's Department. The truck was secured by the Sheriff's Department and removed to its impound yard to be inspected by Sheriff's Department mechanics.
Sheriff's Department employee, Louie Kemp, inspected Petitioner's C-10 pick-up truck and found that no new parts had been installed on its front end.
Mr. Bryant's investigation concerning vehicle #8691 demonstrated not only that the brake parts ordered would not fit
the C-10 pick-up truck, but that the same brake repairs had been reported as completed on the same C-10 pick-up truck three times in 2005: on February 16, June 7, and October 20.
The State Attorney's Office reviewed the same evidence and determined not to further prosecute the case against Respondent, entering a Nolle Prosequi in the matter of State
of Florida v. Andrew L. Mardesich, Circuit Court Case
No. 1707CF005289B, for the reason that insufficient evidence existed to prove the charge beyond a reasonable doubt.
Respondent does not know nor does he have any relationship with Ms. Archer.
Respondent never spoke with Ms. Archer or anyone else about parts or repairs for her Blazer.
Mr. Bodie acknowledged that he never spoke with Respondent about parts he needed to perform the work on
Ms. Archer's Blazer; nor did Mr. Bodie obtain any parts from Respondent; nor was Respondent present when Mr. Bodie allegedly got the parts from Respondent's desk to repair Ms. Archer's vehicle.
Mr. Bodie testified via deposition that he never personally observed Respondent involved with the purchase and installation of parts in Ms. Archer's car in any way.
Mr. Bodie was not aware of any benefit Respondent may have received as a result of the work being performed on Ms. Archer's Blazer.
Mr. Bodie's only involvement with the parts was through Mr. Orso, Respondent's supervisor, who told him about the job to be performed on Ms. Archer's vehicle and where to find the parts on Respondent's desk.
Petitioner relied upon Mr. Bodie's statement to take action against Respondent and Mr. Orso for the ordering and installation of parts in Ms. Archer's vehicle.
Respondent denies that he ordered or was ever asked to order parts that were installed in Ms. Archer's vehicle or any other non-School District owned vehicles. He denies ever ordering parts at the School District's expense and approving or installing them on vehicles not owned by the School District. Based upon Respondent's long work history with Petitioner, as well as his demeanor and candor in responding to questions at the hearing, the undersigned finds Respondent's testimony to be credible.
Petitioner's records establish that parts were ordered using one vehicle number and installed in other vehicles owned by the School District. Petitioner's investigation documents establish that parts were not always ordered using the correct vehicle numbers.
Respondent acknowledged that the ordering of parts using one vehicle number and installed in another vehicle owned by the School District was done when budget constraints forced a department to reimburse at a later date for services needed right away. Mr. Bryant, as well as other School District employees who looked into Transportation Department practices, expressed concern about this practice.
Respondent acknowledged that as a leaderman mechanic, due to the busy work schedule in the garage, sometimes he took other mechanics at their word that the repairs had been performed and he would initial the work orders without a thorough, or even any, inspection of the work performed.
Respondent never completed any work documents using the name "Lanny" or ordering any parts directly. Parts were ordered by the Parts Department. Respondent's usual way of initialing repair orders was with "A.M."
The preponderance of the evidence presented at the hearing demonstrates that a scheme existed to order parts and perform work on non-District owned vehicles, in this case, a 1988 Chevrolet Blazer owned by one of Petitioner's employees, Ms. Archer. Mr. Bodie performed the repairs on Ms. Archer's vehicle using the parts ordered under the School District's account.
Respondent did not knowingly sign repair orders or order parts for repairs on non-District owned vehicles, such as the Blazer owned by Ms. Archer.
Prior to the investigation and notice of termination, Respondent had voluntarily entered the Deferred Retirement Option Program (DROP). Once he received notice from Petitioner that his employment would be terminated effective October 17, 2007, Respondent advanced his DROP exit and regular retirement to be effective October 17, 2007.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and of the parties hereto pursuant to Section 120.569 and Subsections 120.57(1) and 1012.796(6), Florida Statutes (2008).
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The School Board has the burden of establishing by a preponderance of the evidence, the grounds for terminating the employee. See Nassau County School Board v. MacMillan, 629 So. 2d 226 (Fla. 1st DCA 1994); McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); and Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).
Petitioner terminated Respondent's employment for what Petitioner deemed to be "just cause." In the case of support personnel, "just cause" includes, but is not limited to, misconduct in office, incompetence, gross insubordination, willful neglect of duty, or an act involving moral turpitude as such is defined by the State Board of Education Rules. Lee County School Board v. Chan, 2006 Fla. Div. Adm. Hear. Lexis 258 (June 16, 2006); citing Lee County School Board v. Kehn, Case
No. 04-1912 (DOAH February 21, 2005) (adopted in toto by Final Order dated March 10, 2005).
Petitioner has failed to demonstrate that Respondent falsified records so he could order parts for Ms. Archer, a School Board employee with whom he had no prior relationship or, according to the evidence, had ever met. The evidence supports the fact that Respondent was sometimes lax in his inspection of work performed on vehicles and initialed Repair Orders based upon representations of other employees that may have been incorrect or even fraudulent. While this behavior shows sloppiness or even simple negligence by Respondent, it does not rise to the level of fraudulent or even willful behavior on his part. It is understandable that in a busy work environment, such as the School District garage, Respondent may have signed- off on many work orders without scrutinizing them to determine if the work was actually performed as indicated. While this does not constitute a good business practice, the evidence failed to establish that Respondent benefited or even knew that anyone benefited from his occasional careless practice of signing work orders without closely reviewing them.
The evidence does not support Respondent's allegation that Mr. Bodie had a motive or scheme against him and falsified the records concerning the repairs to Ms. Archer's vehicle in order to discredit him. Mr. Bodie performed the repairs on
Ms. Archer's vehicle in violation of School District rules and policies, but the evidence failed to establish that Respondent knew about the repairs being performed or in any way falsified records to allow the repair job.
Petitioner failed to establish any motive on the part of Respondent; any relationship of Respondent to the employee receiving the repairs; or any personal gain received by Respondent in making the unauthorized repairs. Accordingly, the School District had no reasonable basis to conclude that Respondent engaged in misconduct warranting termination of his
31 years of service.
RECOMMENDED that Petitioner, Escambia County School Board, rescind Respondent's termination and compensate him for his lost salary and benefits, including accrued retirement benefits, since the date of his termination on October 17, 2007.
DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2008.
Joseph L. Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
Dr. Eric J. Smith Commissioner of Education Department of Education
Deborah K. Kearney, General Counsel Department of Education
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.
