STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0285

)

SHERIDAN MILLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on September 15, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Jose J. Arrojo, Esquire

Dade County Police Benevolent Association 10680 Northwest 25th Street, Suite 100

Miami, Florida 33172 STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Notice of Specific Charges filed March 17, 1995; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 15, 1994, when the School Board of Dade County, Florida (DCSB) notified Respondent, Sheridan Mills, that action had been taken to suspend and initiate dismissal proceedings against her. The basis for the intended action was alleged to be Respondent's absence from work without authorized leave, ineffective and inefficient performance of duties, neglect of duties, unauthorized use of a Dade County Public School vehicle, unsafe vehicle operation, conduct unbecoming a School Board employee, and failure to comply with state laws, departmental policies, orders, procedures and Board rules.

By letter dated December 23, 1994, Respondent requested a hearing to appeal her suspension and dismissal. On January 19, 1995, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

On January 27, 1995, an order was entered directing Petitioner to file a formal statement of the specific charges against Respondent. That statement was filed on March 17, 1995. Respondent filed an answer to each of the allegations on April 7, 1995. Allegations which were admitted by Respondent are supported by the record in this cause and are hereby adopted.

At the outset of the hearing, Petitioner moved to amend the notice of specific charges which was unopposed by Respondent. The minor amendments to paragraphs 28 and 45 are set forth in the transcript at pages 4 and 5. The request to amend was granted.

By stipulation, the parties further agreed that all witnesses would be examined for both sides at one time to avoid recalling them, and to expedite the presentation of testimony. The following witnesses offered testimony: Vivian Howell, assistant chief for the Dade County Public Schools, Division of School Police (DCSP); Jose F. Gonzalez, a captain employed by the DCSP; Officer Rick Brincefield, an accident investigator employed by the DCSP; Eugene McAllister, chief of police for the DCSP; Desmond Patrick Gray, Jr., associate superintendent, bureau of professional standards and operations; Dr. Paul Gutlohn, a physician; and the Respondent.

The Petitioner's exhibits numbered 6 through 26, 28 through 43, and 45 were admitted into evidence. Petitioner's Exhibit 27 was proffered for the record.

Official recognition was taken of Petitioner's exhibits 1 through 5. Respondent's exhibits numbered 1, 2, 4 through 8, 10, 12, 13 and 17 were admitted into evidence.

The transcript of the proceeding was filed on November 7, 1995. The parties requested an extension of the time to file their proposed recommended orders which was granted. Specific rulings on their proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to this cause the Respondent was employed as a police officer/investigator with the DCSP.

   
   

2. Petitioner is a School Board charged with the duty to operate, control, and supervise all free public schools within the Dade County school district.

   
   

3. Respondent began employment with the DCSP in 1986.

   
   

4. From the time of her hiring through January of 1992 Respondent performed all duties of her employment in a competent and satisfactory manner.

   
   

5. In February, 1992, Respondent began to take sick leave and accumulated an excessive number of absences. In fact, in March, 1992 until May, 1992, Respondent was on leave and was an in-patient at a Michigan Clinic specializing in the treatment of head pain.

   
   

6. After returning to work, Respondent was assigned to duty in region IV of the DCSP. Her duties included conducting initial and follow-up investigations of crimes committed on school grounds and to conduct personnel investigations.

7. While employed in region IV, Respondent reported late to work and was absent so often that her absences adversely affected the operation of the office.

   
   

8. On July 8, 1992 and July 10, 1992, all officers assigned to region IV were directed to comply with the following procedures:

   
   

   1. All Detective Sergeants are required to report to this office at your designated starting time, and prior to departure at the end of the day. If you are the courier for the month, your starting time is at the Central Office.

   2. If for some reason, such as prior appoint- ment, etc., you cannot report to the office, you must call prior to your starting time or departure time and advise where you can be reached.

   3. If you are unable to report to work, you are required to notify the office not less than one hour before your starting time, stating the reason and the expected date of return.

   4. School Resource Officers are required to report to your assigned school at your designated starting time. You are also required to notify this office daily, within one-half hour to advise of your arrival.

   5. If for some reason, you are unable to report to your designated area, you are required to notify your principal and this office not less than one hour before your starting time, stating the reason and the expected date of return.

   6. If for some reason, such as court appoint- ments, etc., you must leave your school, you are required to notify this office, and advise your principal of your departure and expected time of return.

   7. All overtime must have prior approval of this office before working.

      
      

9. On September 24, 1992, the Respondent was reminded, in writing, of the foregoing procedures.

   
   

10. From July 6, 1992 through November 20, 1992, Respondent's work performance, when she attended her duties, was excellent. However, such performance was over shadowed by her chronic absenteeism and tardiness. Further, Respondent did not follow the directives given on July 8 and 10, 1992 and September 24, 1992.

    
    

11. On November 20, 1992, Vivian Howell notified Respondent, in writing that while her performance had been highly competent, Respondent would have to improve her work record. By that time, Respondent's absences had greatly impacted the efficiency of her unit since they were unable to depend on her being on the job.

    
    

12. Additionally, Ms. Howell directed Respondent to provide a doctor's note to verify that Respondent was able to perform her duties, and that her medication (for migraine headaches) would not impair her functioning.

13. By December 9, 1992, Respondent's attendance record had not improved. Ms. Howell sought the assistance of Ben McCardel, the director of the south division special investigative unit, to intervene in addressing the issue.

    
    

14. Ms. Howell advised Respondent on December 9, 1992, that her continued absences and tardies had placed her co-workers at a serious disadvantage and imposed a hardship.

    
    

15. On December 14, 1992, Respondent told Ms. Howell that she had been advised to take a leave of absence. Respondent did not, however, request a leave of absence until January 13, 1993.

    
    

16. Again, Respondent did not comply with the directives listed in paragraph 8.

    
    

17. For example, on certain dates Respondent would fail to timely call in and advise she would be late. On another date, Respondent would call in and tell the office she would be late, but not come in at all.

    
    

18. During this period of time, Ms. Howell visited Respondent's home on two occasions to discuss the attendance problems.

    
    

19. On January 5, 1993, Chief McAllister notified Respondent that her numerous absences constituted abandonment of her position. Nevertheless he allowed her to take a leave of absence beginning that month.

    
    

20. Respondent returned to duty on April 26, 1994 and was re-assigned to the Region II office.

    
    

21. On May 17, 1994, Respondent's new supervisor, Mr. Gonzalez, requested a conference to discuss concerns regarding Respondent's attendance and accidents in which she had been involved. He directed Respondent to appear on May 25, 1994 at 8:00 a.m. in Mr. Wheeler's office to discuss the concerns.

    
    

22. On May 25, 1994, Mr. Gonzalez issued a written summary of the deficiencies in Respondent's performance. The memorandum noted that since her re-assignment to Region II, Respondent had acted in an unprofessional manner by:

    
    

    1. The unauthorized leave of absences.

    2. Tardiness

    3. Lack of/or poor supervision of the officer(s).

    4. Violation of Administrative Directive, vehicle accident Number 85-1, Case Number 94-12529.

    
    

23. The May 25, 1994, memorandum detailed thirteen instances wherein Respondent's deficient performance was identified. The events are chronicled in Petitioner's Exhibit 13 and are adopted by reference.

    
    

24. With regard to the May 25, 1994 conference, although Mr. Gonzalez and Respondent's attorney reported to the office, Respondent failed to attend. Respondent later claimed that she had fallen asleep.

    
    

25. Respondent was given a reprimand for insubordination for failing to attend the conference after being directed to do so.

26. On June 3, 1994 a conference was held with Respondent to discuss her attendance and punctuality. Respondent was notified that her absence adversely impacted the effective operation of the office. Further, the memorandum memorializing the conference directed Respondent to comply with the following procedures:

    
    

    1. If a situation arises that you are sick or late and cannot come to work you are to contact the D.S.P. Region II office in a timely manner (1/2 hour) prior to the start of your work day at 8:00 a.m.

    2. All weekend task force details are temporarily postponed until further notice.

    3. You are to submit a memorandum to me, per our conference, with your plans to improve your attendance and punctuality.

       * * *

       Please be assured that assistance will continue to be provided to facilitate your regular attendance. Noncompliance with the directives will be considered a violation of professional responsibilities.

       
       

27. On July 20, 1994, Respondent was given thirty days to demonstrate an improvement in her attendance and punctuality. Additionally, Respondent was referred to the employee assistance program for assistance in the matter.

    
    

28. For the period April 26, 1994 through July 14, 1994, Respondent was tardy on four occasions. Respondent was also absent from her duties an inappropriate amount.

    
    

29. On August 8, 1994, Mr. Gonzalez again directed Respondent to improve her work attendance.

    
    

30. For the period July 15, 1994 through August 9, 1994, Respondent was on leave without pay 3.5 days.

    
    

31. In addition to the attendance problems, Respondent also was involved in three automobile accidents from June 16, 1994 through August 5, 1994.

    
    

32. For the three most recent accidents (reportedly there had been eight or nine others earlier), Officer Brincefield determined that the incidents were preventable.

    
    

33. Based upon the frequency of the accidents the DCSP withdrew Respondent's use of a School Board police car. Respondent's personal safety and potential liability for the school district also motivated the decision.

    
    

34. With regard to the accident occurring on August 5, 1994 (a date on which Respondent had reported in as sick), Respondent was issued a letter of reprimand for the unauthorized use of a school board vehicle.

    
    

35. On August 23, 1994, Respondent was directed to enroll in a defensive driving class.

    
    

36. On September 19, 1994, Respondent failed to report to an extra-duty job assignment.

37. On September 28, 1994, a conference was conducted with Respondent to address her performance, attendance, job-related driving record, her fitness for duty, and her future employment status.

    
    

38. As a result of the conference, Respondent agreed to select a clinical evaluator from an approved list and to notify Dr. Gray of that selection. Further, Respondent was to remain on alternate duty status pending completion of a defensive driving class and results from the medical evaluation.

    
    

39. Respondent did not timely select a clinical evaluator and notify Dr. Gray.

    
    

40. On October 11, 1994, Dr. Gray notified Respondent that she had failed to comply with the directive from the September 28, 1994 conference regarding selecting a clinical evaluator.

    
    

41. On October 14, 1994, Dr. Gray again notified Respondent of her failure to select a clinical evaluator and that she was considered to be insubordinate as a result. Dr. Gray also noted that since September 28, 1994 Respondent had been absent from her duties eight of the twelve work days.

    
    

42. On December 5, 1994, the Superintendent for the Dade County Public Schools recommended that Respondent be suspended and that dismissal proceedings be initiated.

    
    

43. On December 14, 1994, the School Board accepted the Superintendent's recommendation, took action to suspend the Respondent and to initiate dismissal proceedings against her and notified the Respondent accordingly.

    
    

44. The Respondent timely requested an administrative review of the decision.

    
    

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

    
    

46. Pursuant to Section 230.23, Florida Statutes, Petitioner is authorized to suspend and dismiss its employees.

    
    

47. The Petitioner is also authorized to adopt policies related to personnel matters. In this regard it has promulgated Rule 6GX13.

48. School Board Rule 6GX13-4E-1.011 provides: ABSENCES AND LEAVES

    No leave shall be granted for any reason

    without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is

    absent for other than reasons of sudden illness, emergency, or without such prior approval,

    shall be deemed to have been absent without leave.

49. School Board Rule 6GX13-4A-1.09 provides in part:

    
    

    The specific policies and procedures relative to the organization and responsibilities

    of security services for the school system are found in the publication, Departmental Manual, Special Investigative Unit, issued by the Bureau of Personnel Management, incorporated by reference in this rule as a part hereof.

    
    

50. Pertinent to this case are the following provisions of the Department Manual for the School Police:

    
    

    Rule 2.200.01

    KNOWLEDGE OF LAWS AND RULES: All officers

    must acquire and maintain a working knowledge of laws of the State of Florida and ordinances of Metropolitan Dade County; and the orders,

    rules, procedures, and policies of the Department and system.

    
    

    Rule 2.200.05

    RULES GOVERNING CONDUCT: Specific rules of conduct that govern every employee action or behavior cannot be established. Any act or omission contrary to good order, discipline, or accepted standards of conduct may subject an employee to disciplinary action.

    
    

    Rule 2.210.01

    REPORTING FOR DUTY: An employee shall report for duty at the time and place designated by his/her superior. Failure to report shall be deemed neglect of duty.

    
    

    Rule 2.220.01

    OBEDIENCE TO ORDERS: Employees shall obey all lawful orders and instructions issued by a superior.

    
    

    Rule 2.720.50

    ACCIDENTS INVOLVING ASSIGNED VEHICLES: An

    Employer involved in an accident while operating an assigned vehicle shall immediately notify his/her supervisor and initiate the required response action...

    
    

51. Petitioner bears the burden of proof to establish the allegations by a preponderance of the evidence. It has met that burden and established that Respondent failed to comply with directives, was insubordinate, and failed to correct deficient performance after being placed on notice and given ample opportunity to remediate deficiencies. The Respondent's illness does not mitigate the willful failure to follow Board rules and directives.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the School Board of Dade County enter a final order sustaining the suspension and dismissal of the Respondent.

DONE AND ENTERED this 27th day of February, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 27th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0285

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs not listed below are accepted.

2. Paragraph 3 is rejected as argument.

3. Paragraph 10 is rejected as irrelevant.

4. Paragraph 22 is rejected as irrelevant.

5. Paragraph 27 is rejected as irrelevant.

6. Paragraph 31 with the deletion of the word "numerous" is accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs not listed below are accepted.

2. Paragraph 1 is rejected as irrelevant but is accurate.

3. Paragraph 5 is rejected as irrelevant but is accurate.

4. Paragraph 19 is rejected as irrelevant; Respondent's supervisor assisted her to obtain the leave of absence at this time and subsequently, Respondent, knew or should have known, of the leave procedures.

5. Paragraph 28 is rejected as incomplete statement of the facts and therefore, in isolation, contrary to the weight of the credible evidence.

6. Paragraph 29 is rejected as irrelevant or contrary to the weight of the credible evidence.

7. Paragraph 30 is rejected as irrelevant or unnecessary to the resolution of the issues of this case.

8. Paragraph 31 is rejected as irrelevant and argument.

9. Paragraph 32 is rejected as irrelevant.

10. Paragraph 33 is rejected as contrary to the weight of all credible evidence.

11. Paragraph 41 is rejected as irrelevant but may be accurate.

12. Paragraphs 45 through 47 are rejected as irrelevant or contrary to the weight of all credible evidence.

13. Paragraph 48 is rejected as irrelevant.

14. Paragraph 50 is rejected as irrelevant.

15. Paragraph 51 is rejected as contrary to the weight of all credible evidence.

16. Paragraph 54 is rejected as argument; otherwise is accepted that Respondent was referred to defensive driving school.

17. Paragraph 55 is rejected as argument or contrary to the weight of all credible evidence as stated.

18. Paragraphs 56 and 57 are rejected as irrelevant or contrary to the weight of all credible evidence as stated. Part of the issue regarding the accidents was that Respondent could have prevented the incidents with proper care, could have timely and properly reported an incident, and could have not used the vehicle when on sick day.

19. Paragraphs 58 through 61 are rejected as irrelevant or contrary to the weight of all credible evidence as stated.

20. Paragraph 64 is rejected as incomplete or irrelevant or contrary to the weight of all credible evidence as stated.

21. Paragraph 68 is rejected as contrary to the weight of all credible evidence as stated.

22. Paragraph 70 is rejected as contrary to the weight of all credible evidence.

23. Paragraph 71 is rejected as contrary to the weight of all credible evidence.

24. Paragraph 72 is rejected as irrelevant or contrary to the weight of all credible evidence as stated.

25. Paragraph 73 is rejected as not supported by the record cited (none) or irrelevant.

26. Paragraph 76 is rejected as an incomplete statement or contrary to the weight of all credible evidence as stated.

27. Paragraph 77 is rejected as contrary to the weight of all credible evidence. If Respondent were able to establish physical fitness for duty (disputed by the testimony of the physician), such that she would be able to perform her duties AND that she would comply with directives (the failure of which was the essential basis for her dismissal), she could always seek reemployment with the school district.

COPIES FURNISHED:

Luis M. Garcia, Esquire

School Board of Dade County, Florida 1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Jose J. Arrojo, Esquire

Dade County Police Benevolent Association 10680 Northwest 25th Street

Suite 100

Miami, Florida 33172

Octavio J. Visiedo Superintendent

School Board of Dade County, Florida 1450 Northeast Second Avenue

Suite 403

Miami, Florida 33132-1308

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000285

Orders for Case No: 95-000285