Pursuant to notice, a final hearing was conducted in this case on February 12, 2009, in Fort Myers, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of
Administrative Hearings.
For Respondent: Robert J. Coleman, Esquire
The issue in this case is whether Respondent's employment contract with Petitioner should be terminated.
On August 26, 2008, James W. Browder, Ed.D., Superintendent of Schools, issued a Petition for Termination of Employment directed against Respondent, Debra Ballard. The Petition cited several bases for taking the action against Respondent, including dereliction of duties and excessive absences from work.
Petitioner, Lee County School Board, then forwarded the Petition to the Division of Administrative Hearings ("DOAH") on September 29, 2008, citing Respondent's request for a formal administrative hearing. At the final hearing, Petitioner called the following witnesses: John Drake, assistant principal of administration for North Fort Myers High School (hereinafter the "School"); Ken Burns, assistant principal for student affairs at the School; Steven Casolino, assistant principal (dean) of student affairs at the School; and Kimberly Lunger, principal of the School. Petitioner's Exhibits 1 through 7 and 10 through 12 were accepted into evidence. Respondent testified on her own behalf and offered Exhibits 1 through 8, 10, 11, 14, 16, and 19 into evidence, each of which was accepted. (All hearsay evidence was admitted subject to corroboration by competent,
non-hearsay evidence. To the extent such hearsay was not corroborated, it has not been used as a basis for any finding herein.)
The parties advised the undersigned that a transcript of the final hearing would be ordered. They were given ten days from the date the transcript was filed at DOAH to submit proposed recommended orders. The Transcript was filed at DOAH on March 18, 2009. Respondent subsequently filed an unopposed motion for additional time to file proposed recommended orders, and the date was extended to April 10, 2009. Each party timely submitted a Proposed Recommended Order, and they were given due consideration in the preparation of this Recommended Order.
Petitioner is the school board responsible for hiring, firing, and overseeing all employees at the School.
The School, located at 5000 Orange Grove Boulevard, North Fort Myers, is completely fenced in with a gate at the front entrance, which can be left open during normal school hours. After incidents at Columbine High School and the terrorist attacks on September 11, 2001, security at the School was heightened.
Respondent is a security specialist at the School and has been employed at the School for almost 30 years. Respondent first worked at the School as a security guard under CETA, a federally-funded training program, starting in 1979. She was then hired as a school board employee. Respondent worked in the
school clinic for a short time, but has spent the majority of her time as a security specialist.
One of Respondent's primary jobs as a security specialist was to provide security at the front gate of the school. In fact, the majority of Respondent's assignments put her at the front gate, although the School has made efforts to alter her schedule, when possible, so that she would not be stuck in one location. Due to some injuries she had experienced, however, Respondent often found assignment at the front gate to be the most conducive to her ambulatory constraints.
On November 10, 2004, Respondent was at the front gate pursuant to her assignment for that day. While she was at the gate, a visitor, Herbert Wiseman, drove up in an automobile. Respondent had known Wiseman for many years and recognized him as a "dignitary" from the school district offices. Respondent waved Wiseman through the gate without stopping him and allowed him to proceed to the front office unannounced.1 This action was in contravention of School policies which required Respondent to stop all cars coming into the School and required an announcement of all officials from the district offices. However, Respondent felt her actions were not inappropriate, because she knew the individual and knew him not to be a threat of any kind.
On that same day, a former student, Jamar Barnar, drove his vehicle onto the School campus without being stopped.
Barnar parked his car, walked into the School property, and walked freely through the halls until he was seen and identified by a School employee. Barnar ran to his car and drove off campus. Respondent said she thought Barnar was still a student and just let him pass through the gate. Again, that action is in derogation of School policies, but Respondent says she has a good relationship with the students and sometimes allows them to circumvent the rules when she feels it would not be a threat to anyone.
Respondent was issued a letter of reprimand by assistant principal Drake regarding the incidents on
November 10, 2004. Respondent signed the letter acknowledging receipt, but did not ask for a union representative or otherwise attempt to grieve the letter. In fact, Respondent gracefully accepted the letter and agreed to be more vigilant in the future. The more credible testimony at final hearing established that Respondent was given the opportunity to have union representation, if she desired it.
On March 8, 2005, there was another incident relating to security at the School which involved Respondent. Once again Respondent was posted at the front gate. She had been advised that two visitors were expected that day and that she should
watch for them, allow them through the gate after questioning, and announce their arrival via radio contact with the front office. When the visitors (a Lee County Sheriff's officer--not in uniform--and a person from the federal Homeland Security Division) arrived, Respondent did not stop them. The visitors, on their own accord, stopped to see if Respondent would question them. She apparently did not. Rather, the visitors were allowed to go unannounced to the front office where they complained to the principal about the lack of security at the front gate.
A letter of warning was issued by Principal Lunger and Assistant Principal Drake concerning the March 8, 2005, incident. Respondent was called into the office to review the letter, discuss its content, and sign it. She was offered the right to have a union representative present, but opted not to have one. Respondent acknowledged receipt of the letter of warning by her signature thereon. The letter says it is a "second written notification of a serious performance deficiency."
Another letter of warning was issued to Respondent dated February 27, 2008. The basis for this letter of warning was that Respondent allowed a student to leave campus on February 19, 2008, without written permission. The student, who was well known to Respondent, advised Respondent that he had
verbal permission from a teacher. However, School policies only allow administration or the front office to allow a student to leave campus. Respondent was aware of the policy, but again thought her relationship with the student was sufficient justification for allowing him to leave.
Respondent was offered the right to have a union representative present when the letter of warning was discussed and signed, but she again opted out. Rather, she very amiably acquiesced to the statement of violation and signed the letter without further grievance.
A letter of reprimand was issued by Assistant Principals Ken Burns and Steve Casolino dated February 29, 2008,2 relating to incidents that had occurred the previous week. On February 20, 2008, a student was seen on campus who was not supposed to be there and who had not been announced per School policies. Respondent says she had waved the student through, despite knowing it was against policy, because she knew him and had earlier allowed him to leave campus. The student (C.C.) should not have been on campus at that time due to some reason not fully disclosed at final hearing. Nevertheless, upon
re-entry to the campus (allegedly with another person in his automobile), C.C. should have been stopped and questioned as to his reason for being on campus.
On February 21, 2008, a student was attempting to leave campus without permission. Assistant Principal Casolino began to pursue the student and also called on the radio for security assistance. None of the three guards on duty (including Respondent) answered his call. Casolino called on the radio for the front gate to be shut so the student could not leave; it was not shut. Respondent maintains that she was keeping watch on an unauthorized car that had entered campus at that time. She opted to stay near the car, because it presented the higher security risk. Respondent did not explain why she did not answer the radio call.
Respondent was absent from work immediately following the February 20 and 21, 2008, incidents. Upon her return to work on February 28, 2008, Respondent was called to the front office to discuss the letter of reprimand. She was offered the right to have a union representative, but declined. In fact, Respondent was the union representative for the School at that time, although it is unclear whether she could have represented herself or whether she was qualified to do so. There were three copies of the letter presented to Respondent, one of which was to be retained by her. Assistant Principals Burns and Casolino signed each of the three copies. On her copy, Respondent wrote the words "Under Protest" and did not sign it at that time.3 At
some point in time, Respondent signed a copy of the letter of reprimand.
Respondent remembers that her copy of the letter with "Under Protest" on it was torn up or crumpled and put in the waste basket. However, the photocopy of that letter presented at final hearing does not appear to have been torn up or crumpled. There is another version of the letter with signatures by Burns, Casolino, and Respondent (who signed twice) with the words "Under Protest" on it, but it is obviously not the same one that Respondent left with Burns and Casolino at the meeting. This second letter appears to be Respondent's copy of the fully signed letter upon which she later wrote "Under Protest." There are three different versions of the
February 29, 2008, letter in evidence: (1) a letter with no signature by Respondent and the words "Under Protest" on it;
(2) a letter signed by Burns, Casolino and Respondent--twice; and (3) a letter signed by Burns, Casolino and Respondent with the words "under protest" and "second copy" handwritten on them.
At any rate, Respondent at some point signed the letter of reprimand and did not further file a grievance or complaint about the letter. However, Respondent did draft a letter to Burns and Casolino explaining her actions vis-à-vis the February 20 and 21, 2008, incidents. The letter, which is
not signed, is an explanation of her actions, but Respondent did not base a formal grievance on the letter.
Each employee of the School Board is evaluated annually concerning their work performance.4 Various categories of job duties are discussed in each evaluation and graded on a scale ranging from U-Unacceptable Level of Performance, to
I-Inconsistently Practiced, and then E-Effective Level of Performance Observed.
Respondent's 2003-2004 evaluation primarily contained grades of "E," indicating her level of performance was effective or acceptable. However, she had a "U" in the area of "Meets acceptable attendance and punctuality schedule." Comments on that evaluation say "Good worker, but absent too frequently." Respondent was absent 84.50 hours (over two full weeks) during the 2003-2004 school year.
The 2004-2005 evaluation contained no "U" grades, but had "I" grades in three areas. There were no written comments on that evaluation form.
The evaluation for school year 2005-2006 is almost completely at the effective level of performance, except for one area, "Utilizes leave only when necessary." Comments on the form say, "Total hours absent, 116.5. See below." The bottom of the form indicates 68.5 hours of sick leave, 27.5 hours of personal leave, and 20.5 hours of leave without pay for the
period July 1, 2005, through March 23, 2006. This equates to
14.5 work days absent from the job.
For the 2006-2007 school year, Respondent's evaluation again had two "I" grades in the areas called: (1) Achieves expected results with few errors; and (2) Utilizes leave only when necessary. The comments section again addresses Respondent's absences. She had 98.5 hours (12.3 total days) of leave; and 26.5 of those hours were without pay, meaning she had used up her allotted leave time.
Respondent's last (or latest) evaluation indicates five areas with unacceptable levels of performance. Included in those areas are reviews of attendance and dependability. The comments section refers to the February 27, 2008, letter of warning; the February 29, 2008, letter of reprimand; and the December 5, 2007, warning letter. For that school year, Respondent had 136.25 hours absent, including 62.5 hours of leave without pay. This equates to 17 days absent, with over eight days of leave in excess of her allotted allowance.
Respondent is accused of having excessive absences from work. This is a critical issue for the School because, due to budget cuts, there are only three security guards for a campus of over 2,200 students. There had been four guards previously, so teachers were being asked to supplement security by acting as de facto guards when possible. The presence of all
three security guards each day was critical to maintaining a high level of security.
On April 2, 2007, Respondent had sustained an injury to her right foot. Despite X-rays being taken soon after the injury, the fact that Respondent had fractures in her foot was not immediately ascertained. As a result, Respondent had a period of time that her ability to work was affected by her injury. She was under treatment by medical professionals during the entire 2007-2008 school year.
While Respondent was recovering from her injury, the School made sure she had access to a golf cart for moving around campus. It was during this period of convalescence that the School made a conscious decision to assign Respondent to the front gate so that she would be in a position that did not require as much mobility.
The excessive number of absences by Respondent caused problems for the School as far as security was concerned. Although the reasons for some of the absences was obviously due to the injury she sustained, there were also a number of absences related to other known (i.e., migraine headache) or unknown reasons.
The concerns about Respondent's attendance were taken to the Lee County School District's Human Resources Department by Principal Lunger. Lunger did not know how else to handle the
lack of security caused by Respondent's absences. Use of teachers as replacement security guards was simply not an effective means of addressing the problem. Further, the School Board did not have funds available to hire a replacement each time Respondent was absent.
The absentee issue was a legitimate concern of the School and was part of the basis for deciding to terminate Respondent's employment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to a contract with the Lee County School Board. The proceedings are governed by Sections 120.57 and 120.569, Florida Statutes (2008).5
The superintendent of schools for Lee County, Florida, has the authority to recommend to the School Board that an employee be suspended or dismissed from employment. § 1012.27, Fla. Stat.
The School Board has the authority to terminate the employment of or to suspend non-instructional personnel without pay and benefits. See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.
The burden of proof in this proceeding is on Petitioner to prove, by a preponderance of the evidence, that
just cause exists to suspend or terminate the employment of Respondent. McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).
"Just cause" is the standard of discipline applied to actions against support personnel. See Support Personnel Association of Lee County (SPALC) Agreement, Provision 7.10.
It is clear from the evidence that Respondent has had a history of violating School policies concerning her duties as a security specialist. Respondent's explanations for her actions are credible. That is, she frankly admits the violations, but minimizes their import due to her personal knowledge of the students and visitors, the minimal threat to the School, and her gut feelings. However, those explanations do not excuse her violation of School policies. It is not Respondent's duty to determine when a policy should be enforced.
Respondent has had a history of absences during her tenure with the School. Some of those absences are the result of her physical health issues, but her absences nonetheless cause problems for the School in maintaining proper security. The number of absences by Respondent is a reasonable basis for action against her by the School. The School has not ignored Respondent's physical condition and has taken steps to accommodate her needs to the extent possible.
Article 9 of the SPALC Agreement deals with the issue of absences and approved leaves. It states in pertinent part:
9.0104 - EXCESSIVE ABSENCE: Excessive
absence may result in District personnel action including but not limited to the use of the discipline or evaluation process consistent with the District's obligation under state and federal law.
9.0105 - EXCESSIVE ABSENCE DEFINED:
Excessive absence shall be defined as follows:
three (3) consecutive days of absence without medical verification in a case where abuse is suspected and/or
three (3) unauthorized absences in a twelve (12) month period and/or
a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position.
Clearly Respondent has a pattern of absences which affects her ability to carry out the functions of her position. When she is absent, the School is left with insufficient security--Respondent's job--and, of course, Respondent cannot provide security if she is not on campus. The School Board has met its burden of proof to show that absenteeism is a just cause for consideration in this matter.
Respondent argues that none of the incidents regarding her dereliction of duty can be used as a basis for action in the present matter. The rationale set forth by Respondent is that the School Board did not comply with the procedures prescribed
by the SPALC Agreement when it issued letters of reprimand or letters of warning to Respondent. That is, the School Board did not follow the provisions of Section 7.10 of the Agreement.
Section 7.10 addresses the process for discipline that constitutes a reprimand, suspension, demotion, or termination for just cause. The section requires allegations of misconduct against an employee to be reviewed by the director of Professional Standards "at the request of the employee's supervisor." There is no evidence in this case that the employee's supervisor made such a request concerning the letters of reprimand and warning. However, it is clear from the credible testimony of School administrative staff that Respondent was given every opportunity to grieve the letters, but opted not to do so. Therefore, the School Board's alleged failure to precisely follow the process for a discipline case is harmless error.
Notwithstanding the foregoing analysis, this is a de novo proceeding. As such, the finder of fact is allowed to consider the evidence of Respondent's alleged wrongdoings whether or not the prior process was correctly followed. The facts elicited during the final hearing in this matter are
within the purview of the Administrative Law Judge to consider.
The job performance deficiencies constitute just cause for taking an action against Respondent, including the
termination of her employment contract. The School Board has met its burden of proof concerning the bases for terminating the employment of Respondent.
RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Debra Ballard's, employment for the reasons set forth above.
DONE AND ENTERED this 23rd day of April, 2009, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2009.
1/ At final hearing, Respondent said she stopped Wiseman and they talked for a few minutes. Wiseman told her he was there to see the principal. This contradicts the letter she signed
concerning the incident, however, which says Wiseman was not stopped or questioned at all and that he complained to the principal about this fact.
2/ The letter was dated February 29, 2008, but signed by the assistant principals and Respondent on February 28, 2008. The typed date is obviously a clerical error.
3/ One witness, Burns, remembers Respondent signing at least one of the copies of the letter at the time of the meeting, but it is unclear as to when she actually signed it.
4/ The school year is a ten-month period, and all employees are under ten-month contracts.
5/ Unless specifically stated otherwise herein, all references to Florida Statutes are to the 2008 version.
Dr. Eric J. Smith Commissioner of Education Department of Education
Deborah K. Kearney, General Counsel Department of Education
Dr. James W. Browder Superintendent of Schools Lee County School Board 2855 Colonial Boulevard
Robert J. Coleman, Esquire Coleman and Coleman
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.
