STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4768

)

MACTAVIS BURROWS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings in Miami, Florida on March 2 and May 10, 1989.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

2780 Galloway Road

Suite 100

Twin Oaks Building Miami, Florida 33165

For Respondent: William DuFresne, Esquire

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

The issue is whether Respondent should be dismissed by the school board from his position as a teacher's assistant for misrepresentation in his application for employment and misconduct after his employment.

PRELIMINARY STATEMENT

An amended notice of charges were filed on February 22, 1989. The final hearing began on March 2, 1989, and was reconvened on May 10, 1989, for the testimony of Mr. Burrows and of Dr. Patrick Gray for the School Board. At the hearing, it was stipulated that Mr. Burrows is the person who was the subject of nine arrest reports, and was the subject of an information filed by the State Attorney in Dade County for unlawful receipt of unemployment compensation.

During the hearing, the Hearing Officer dismissed Count II of the Amended Notice of Charges. That Count sought a determination that Mr. Burrows' employment contract with the School Board is voidable because he had concealed arrests to obtain employment. The Circuit Courts have exclusive jurisdiction over equity matters, Section 26.012(2)(c), Florida Statutes. An action for rescission is an equity matter which cannot be adjudicated at the Division of

Administrative Hearings. This ruling has little effect on the outcome of the case, however, because the same conduct is alleged as the basis for Count I, seeking to terminate Mr. Burrows' employment for immorality by making misrepresentations on his application for employment.

By agreement, seven exhibits were admitted for the School Board. A transcript of the proceedings was filed on July 14, 1989. The parties waived the filing of proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The School Board of Dade County seeks the dismissal of Mactavis Burrows from employment as a teacher's assistant for misrepresentation in his application for employment, and for misconduct in the form of excessive tardiness, absenteeism, and unemployment compensation fraud.

   
   

2. Mactavis Burrows was employed by the School Board of Dade County in July 1974 as an emergency substitute teacher. He did not work regularly, but was available on a day-to-day basis to fill in for teachers at various schools in Dade County. In 1979, he became an airport limousine driver, and continued in that position until 1983. In June 1983, he was hired in a non-instructional position as a hall security monitor. On June 3, 1983, he also filed an application for reemployment in an instructional position with the School Board of Dade County. In connection with that employment application, he completed a security check authorization which posed the following question:

   
   

   Have you ever been detained, held, arrested, indicted, or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or have you ever been ordered to deposit bail or collateral for any violation of any law, police regulation or ordinance? (Include offenses for any type of drugs including marijuana and courts-martial while in military service.)

   Yes No

   (If "Yes", list in remarks section the date, nature of offense or penalty imposed or other disposition of each case.)

   
   

   Mr. Burrows answered the question "No." He also signed an oath and declaration as part of the application which states:

   
   

   I agree that any omissions or false statements anywhere in this application will constitute reason for dismissal. I also understand that unless this application is completed in detail, it will not be considered.

   
   

3. Despite his answer to the question set out above, Mr. Burrows had an extensive arrest history. His arrests included:

   
   

   1. On December 2, 1971, arrested for shoplifting.

   2. On November 22, 1973, arrested for loitering where narcotics are used.

   3. On December 11, 1973, arrested for having no valid license driver's license and resisting arrest without violence.

   4. On January 29, 1974, arrested for aggravated assault on a police officer and battery.

   5. On August 30, 1975, arrested for disorderly conduct.

   6. On September 1, 1975, arrested for disorderly conduct.

   7. On July 6, 1976, arrested for breach of the peace.

   8. On February 8, 1982, arrested for burglary and grand larceny.

      
      

      Mr. Burrow was not convicted of any of these charges. On June 16, 1987, after his application for reemployment was submitted, Mr. Burrow was arrested for unemployment compensation fraud.

      
      

4. The School Board of Dade County first offered Mr. Burrows the opportunity to work as a hall monitor. Because he had college courses, he was later offered a position as a teacher's assistant, based in part on his June 3, 1983 application for reemployment. The School Board processes the applications, insofar as they relate to the questions about prior arrests, on an honor system basis.

   
   

5. The mere indication that an applicant has been arrested does not mean that the person will not be employed. It triggers a review of the application by the School Board's Special Investigative Unit, which obtains the applicable arrest or court records. The applicant is given the opportunity to explain the situation, and to give any information relating to extenuation or mitigation about the arrest. The Special Investigative Unit will also match the applicant's statement about the disposition of the arrest with court records to determine the completeness and truthfulness of the applicant's disclosure.

   
   

6. The School Board takes into account in its hiring decisions the nature of the position for which the applicant is being considered. Mr. Burrows was offered employment as a teacher's assistant. To qualify as a teacher's assistant, an applicant must have a high school diploma, and have completed two years of college. The position does not require a state educator's license.

   The position is one which places the employee in direct contact with children in the classroom, often on an unsupervised basis. The School Board is concerned with the integrity and background of persons hired for these positions to a greater extent than it would be for positions which do not involve direct contact with pupils.

   
   

7. Mr. Burrows' dishonesty and failure to disclose his arrest history would have caused the Board not to offer him a job, had the matter come to the attention of the School Board before he was employed. His explanation for the nondisclosure was that most job applications only ask for convictions, and he had never been convicted of a crime, so he made no disclosure of his arrests. This explanation is unpersuasive. The application required disclosure of arrests.

   
   

8. In 1988, after he was employed, Mr. Burrows was the subject of an eight count information filed by the State Attorney for the Eleventh Judicial Circuit for unemployment compensation fraud, in violation of Section 443.071(1), Florida

   Statutes and for grand theft, in violation of Section 812.014, Florida Statutes, for each of the weeks from January 11, 1986, through April 5, 1986. Mr. Burrows had sought and received unemployment compensation while he was employed by the School Board of Dade County without disclosure of those earnings. Whether he had then been employed as a hall monitor or as a teacher's assistant is not clear from the evidence. Mr. Burrows was arrested on those charges at school, during school hours. He plead guilty to the charges, adjudication of guilt was withheld, and Mr. Burrows was placed on probation with a condition that he make restitution in the form of community service to repay the debt at the rate of approximately $5 per hour.

   
   

9. While employed by the School Board of Dade County during the 1987-1988 school year as a teacher's assistant at Miami-Edison High School, Mr. Burrows' performance was inadequate. He was one of two assistants assigned to work with Ms. Shirley Robinson, who taught physically impaired pupils. Their disabilities included cerebral palsy, spina bifada and other physical limitations. As a teacher's assistant, Mr. Burrows supervised and assisted pupils in going back and forth to regular classes from their special education class, assisted pupils in the bathroom (which was necessary due to their impairments) and worked with pupils on instructional tasks. The pupils would arrive by bus at 7:10 a.m. It was essential to have a teacher's assistant present to supervise disabled pupils when they arrived and to help them with their breakfast. Mr. Burrows was required to report to work at 7:00 a.m., although later his time to report to work was changed to 7:20 a.m. Mr. Burrows was consistently late in reporting to work, which created serious problems at the school in covering for Mr. Burrows and finding someone else to supervise the children. This problem was brought to his attention, but his punctuality did not improve.

   
   

10. Mr. Burrows also had other problems with attendance. On March 16, 1988, he informed Mrs. Robinson at approximately 9:40 a.m. that he had to return home because the zipper on his trousers had broken. He left the school but did not return that day. On March 24, 1988, Mr. Burrows slept in the teacher's lounge when he should have been working with his pupils. When he learned that Mrs. Robinson had made this incident known to the administration, he became verbally abusive to Mrs. Robinson.

    
    

11. Rule 6Gx13-4A-1.21 of the School Board of Dade County states, in pertinent part:

    
    

    (I) All persons employed by the School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.

    * * *

    (V) Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law by the rules of the State Department of Education.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1981).

    
    

13. The School Board has the authority to suspend and dismiss members of the instructional staff and other school employees. Section 230.23(5)(f), Florida Statutes (1987).

    
    

14. The statutory qualifications for employment by a district school board include that the person "shall be of good moral character." Section 231.02, Florida Statutes (1987). A member of the instructional staff of the district school system may be dismissed for just cause, which includes "misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." Section 231.36(1)(a), Florida Statutes (1987).

    
    

15. Mr. Burrows is guilty of immorality by failing to respond truthfully on his application for employment that he had been arrested on numerous occasions. While the arrests themselves are not disqualifying, the deceit involved in failing to disclose them to the School Board so that it could make an informed decision about the suitability of Mr. Burrows for employment in a position which entails unsupervised contact with students is serious misconduct. The application itself informed Mr. Burrows that incomplete disclosures would subject him to dismissal.

    
    

16. The repeated tardiness and absenteeism of Mr. Burrows while employed, after the matter was clearly brought to his attention, constitutes wilful neglect of duty, in violation of Section 231.36(1)(a), Florida Statutes, and also is misconduct in violation of Section 231.09, Florida Statutes, which requires members of the instructional staff of public schools to teach "efficiently and faithfully." Physically impaired students require assistance and supervision which the School Board could provide only with difficulty, by covering for Mr. Burrows' repeated incidents of tardiness or absenteeism. His sleeping on duty was an especially serious violation of his duty of faithful performance. His poor performance was sufficient reason to dismiss him from employment.

    
    

17. The arrest of Mr. Burrows in 1987, and his admission of guilt to unemployment compensation fraud while employed by the School Board is dishonesty, may be properly characterized as immorality and as misconduct in office. That conduct also subjects him to dismissal under Section 231.36(1)(a), Florida Statutes (1987).

RECOMMENDATION

It is RECOMMENDED that Mactavis Burrows be dismissed from employment with the School Board of Dade County.

DONE and ENTERED this 5th of September, 1989, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.

COPIES FURNISHED:

Frank R. Harder, Esquire 2780 Galloway Road

Suite 100

Twin Oaks Building Miami, FL 33165

William DuFresne, Esquire 2929 Southwest Third Avenue Suite One

Miami, FL 33129

Dr. Joseph A. Fernandez, Superintendent Dade County Public Schools

Office of Professional Standards 1444 Biscayne Boulevard, Suite 215

Miami, FL 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08 Tallahassee, FL 32399-0400

Docket for Case No: 88-004768

Orders for Case No: 88-004768