STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM )

BEACH COUNTY, )

)

Petitioner, )

)

v. ) CASE NO. 83-3214

)

EDDIE P. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted an administrative hearing in this case on December 8, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

For Respondent: Eddie P. Jones, pro se

1118 Northeast Second Street Boynton Beach, Florida 33435

Issue

Whether respondent, an employee of the School Board of Palm Beach County, should be dismissed from his employment on charges of misconduct, immorality, gross insubordination, and willful neglect of duty, arising out of his alleged repeated falsification of time sheets.

Background

By Petition for Dismissal, dated October 6, 1983, the Superintendent of Schools of Palm Beach County recommended that respondent Eddie P. Jones ("respondent") be dismissed from his employment for misconduct involving alleged falsification of his time sheets. On September 30, 1983, respondent requested a hearing to challenge the Superintendent's recommendation. Thereafter, petitioner School Board of Palm Beach County ("School Board") forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was then set for December 8, 1983. At hearing the School Board presented the testimony of Jack L. Thompson, Principal of Hagen Road Elementary School and J. Kenneth Schrimsher, Assistant Superintendent for Personnel

Relations. Petitioner's Exhibit Nos. 1 through 4 were received into evidence. 1/

Respondent testified on his own behalf and presented the testimony of Lloyd

1. Brown, a friend.

   
   

   The School Board filed proposed findings of fact by December 16, 1983.

   Respondent filed a request for another hearing, stating he "was not satisfied with the results" of the original hearing. Since the reason given does not justify a second hearing, the request is denied.

   
   

   Based on the evidence presented at hearing, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. The School Board employed respondent as a custodian at Hagen Road Elementary School for approximately three years. His assigned working hours were from 2:00 P.M.- 10:30 P.M., Monday-Thursday; 11:00 A.M.-7:30 P.M. on Friday; and 7:30 A.M.-3:30 P.M. on days when school was not in session. One of his job requirements was that he record his daily work hours on a Custodian

      Time-In and Time-Out Sheet" furnished by the School Board. (Testimony of Thompson)

      
      

   2. In January, 1983, Judith Kurzawski, Principal of Hagen Road Elementary School, noted that respondent, on three occasions, was not on school grounds during his assigned work hours, and that he had not checked out for the evening on his time sheets. She then met with respondent to discuss the seriousness of false time sheet reporting. Jack Thompson, Assistant Principal, and Ben Chapman, Custodial Foreperson, also attended the meeting. Respondent admitted falsifying his time sheets and agreed to correct them. Principal Kurzawski specifically directed that, in the future, he closely adhere to his assigned work hours and accurately record work check-in and checkout times. After the meeting, she wrote a letter to respondent reiterating her directive and warning that his failure to comply with them would result in her recommending that his appointment as custodian not be renewed. Respondent acknowledged receiving this letter. (Testimony of Thompson, P-1)

      
      

   3. When the 1982-83 school year ended, Mr. Chapman and Principal Kurzawski evaluated respondent's work performance for the year. On his evaluation form, they rated his attendance as "unsatisfactory" and reminded him to adhere to his work schedule and accurately report hours worked. On June 6, 1983, he signed this evaluation, indicating that he "agree[d] with its content."

      
      

   4. Yet on three occasions during the next school year, respondent was absent, without permission, from Hagen Road School during his assigned work hours. On September 1, 1983, he was absent from 8:00 P.M.-10:30 P.M.; on September 6, 1983, from 9:55 P.M.-10:30 P.M.; and on September 7, 1983, from 8:00 P.M. -10:30 P.M. Each absence was unauthorized. He falsely indicated on his time sheet that he had worked until 10:30 P.M., each evening. He made these entries knowing they were false. (Testimony of Thompson)

      
      

   5. On September 9, 1983, Assistant Principal Thompson confronted respondent with these time sheet discrepancies. Respondent admitted that, on each of these occasions, he left work earlier than shown on his time sheet, yet he gave no explanation for his actions. Mr. Thompson told him that if he did not resign, he would seek his immediate dismissal. Respondent replied that he

      would resign and find a job elsewhere. Later, respondent changed his mind. The Superintendent of Schools then filed his petition, recommending that respondent be dismissed.

      
      

   6. By leaving work early, without permission, and then concealing his departure by falsifying his time sheets, respondent seriously impaired his effectiveness as an employee of the School Board. His falsification of records was knowing, unexcused, and repetitive. As a result, he was paid for work not performed, his employer was defrauded, and public funds were wasted. He engaged in this activity despite his supervisor's prior warnings, clearly understood, that further falsification of time records would result in his termination.

      
      

   7. Respondent contends that he left work early on September 1, 1983, due to illness. This contention is rejected as unworthy of belief since it is uncorroborated, he did not seek approval to leave early, and, when later confronted by Assistant Principal Thompson, he did not give this as a reason for his absence.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1981).

      
      

   9. As grounds for its disciplinary action against respondent, the School Board relies on Rule 6Gx50-3.27, Florida Administrative Code, and Section 230.33, Florida Statutes (1981). But the rule, presumably a School Board rule not printed in the Florida Administrative Code, was not offered into evidence. Neither was official recognition of its contents requested. 2/ Thus Rule 6Gx50-

      3.27 cannot serve as the basis for disciplinary action against the respondent. See, Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977).

      
      

   10. Section 230.33, Florida Statutes (1981), the statutory provision relied on by the School Board, authorizes superintendents of district school systems to, among other things, "recommend employees for dismissal." 230.33(7)(e), Fla. Stat. (1981). No grounds for dismissal are specified for employees, such as respondent, who are neither instructional nor administrative employees of the school system.

       
       

   11. Public employers, however, have the right to discipline their employees for "proper cause," see 447.209, Fla. Stat. (1981) , even where specific rules of conduct are absent. If the employee is not mislead in preparing his defense, and if the alleged misconduct, as a matter of common sense, is incompatible with the employment relationship, the employee can be disciplined without a need for further delineation. Cf. Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3d DCA 1983)

       
       

   12. Measured by these standards, the School Board has sustained its burden of proving "proper cause" exists for respondent's dismissal. It has shown that he falsified his time records to conceal his early, and unauthorized, departure from work. His actions were adverse to the interests of his employer and violated the explicit directive of his supervisor. He is guilty of misconduct, immorality, and willful neglect of duty, as charged in the Petition for Dismissal. He is, however, not guilty of gross insubordination, which requires contumacious conduct, something more than violation of a supervisor's directive. See, Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981)

   13. Respondent was given a fair opportunity to improve his performance, and demonstrate a willingness to honor his work schedule and keep accurate time records. He failed to avail himself of this opportunity. Neither has he shown why Principal Kurzawski's clear warning, unheeded by him, should not now be fulfilled. His dismissal, is therefore, justified and appropriate.

       
       

   14. The School Board's proposed findings of fact have been considered in preparing this recommended order. To the extent the findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be dismissed from his employment for misconduct, immorality, and willful neglect of duty.

DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1984.

ENDNOTES

1/ Petitioner's Exhibits will be referred to as "P- ."

2/ Official recognition is an administrative concept similar to judicial notice, but the parties must be allowed to examine and contest the material. 120.61, Fla.Stat. (1981).

COPIES FURNISHED:

Abbey G. Hairston, Esquire 3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

Eddie P. Jones

1118 N.E. Second Street Boynton Beach, Florida 33435

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

THOMAS J. MILLS,

Superintendent of Schools,

Petitioner,

vs. CASE NO: 83-247

DOAH CASE NO: 83-3214

EDDIE P. JONES,

Respondent.

/

FINAL ORDER

THIS MATTER came on to be heard by the School Board of Palm Beach County, Florida, for the purpose of entering a final order in the above-styled cause. In consideration of the recommendations of the Superintendent and the Division of Administrative Hearings (DOAH) Hearing Officer, and the attached exhibits, the School Board finds the following:

BACKGROUND:

On December 8, 1983, a hearing was held by the DOAH Hearing Officer in order to take evidence concerning the Superintendent's charge that the Respondent was guilty of misconduct, immorality, gross insubordination and willful neglect of duty in his work performance. The Respondent contended that he was not guilty as charged. On January 12, 1984, the Hearing Officer issued his recommended order (Attached as Exhibit 1) in which he determined that the Respondent had falsified his time records to conceal his early and unauthorized departures from work. The Hearing Officer recommended that the Respondent be dismissed from employment because his actions constituted misconduct, immorality and willful neglect of duty.

FINDINGS OF FACT:

1. The School Board of Palm Beach County, Florida, has reviewed the entire record and finds that the Hearing Officer's findings of fact are supported by competent substantial evidence in the record and that the proceeding upon which the findings of fact are based comply with the essential requirements of the law.

2. Accordingly, the Hearing Officer's findings of fact are adopted as the School Board's findings of fact. See, 120.57(1)(b)(9), Florida Statutes.

CONCLUSIONS OF LAW:

1. The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto.

   
   

2. The School Board of Palm Beach County, Florida, has reviewed the entire record and takes exception to Conclusion of Law #3.

The Hearing Officer determined that the Respondent is not guilty of gross insubordination as alleged by the Superin- tendent. The Hearing Officer cites Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981) as the authority for his conclusion. The Hearing Officer interpreted that case too narrowly by concluding that gross insubordination requires more than violation of a supervisor's directive. Rather, the court in Smith determined that the employee was not grossly insubordinate within the meaning of the Florida Statute since her action was an isolated outburst and was not "constant or continuing". Furthermore, the record in that case did not establish that the employee refused to obey any order of the director.

1. In the case at bar, there was competent evidence presented at the hearing to show that the Respondent falsified his time records on more than one occasion. Respondent's action was continuous and in violation of an order by his superiors to accurately record the hours which he worked.

   
   

2. Therefore, we modify the Hearing Officer's conclusion and find that the Respondent is guilty of gross insubordination, in addition to being guilty of misconduct, immorality , and willful neglect of duty. The Hearing Officer's findings of fact #2-6 support this conclusion.

   
   

3. The Hearing Officer's conclusion of law #4 is adopted as the School Board's conclusion of law. All other conclusions of law which were immaterial or unnecessary, have been rejected. See, 120.57(1)(b)(9), Florida Statutes.

ORDERED AND ADJUDGED that the employment of the Respondent, Eddie P. Jones, with the School Board of Palm Beach County, Florida, is hereby terminated effective October 5, 1983, and no back pay, salary, or other benefits of employment shall be granted to Respondent following his suspension without pay on September 15, 1983.

DONE AND ORDERED this 15th day of February, 1984.

CHAIRMAN

SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

(SEAL)

Filed with the Clerk of the School Board this 15th day of February, 1984.

BETTY MOFFITT CLERK

Docket for Case No: 83-003214

Orders for Case No: 83-003214