STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 96-5170
)
JOHN GOLFIN, )
)
Respondent. )
Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on January 24, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Madelyn P. Schere, Esquire
The School Board of Dade County
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Angela M. Nixon, Esquire
Kaplan and Bloom, P.A. Post Office Box 144333
Coral Gables, Florida 33114-4333
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges (as finally amended)?
If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against him?
If so, what specific disciplinary action should be
taken?
On October 23, 1996, the School Board of Dade County (School Board) suspended Respondent from his position as a lead custodian and initiated dismissal proceedings against him.
Respondent thereafter requested a hearing on the matter. On November 4, 1996, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.
On or about November 26, 1996, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges. On December 16, 1996, the School Board filed a motion to amend the Notice of Specific Charges. By order issued January 3, 1997, the motion, which was
unopposed, was granted.
On January 14, 1997, the School Board filed a second motion to amend the Notice of Specific Charges. The School Board's Second Amended Notice of Specific Charges contains the following allegations:
This matter is before the Division of Administrative Hearings, pursuant to Article XI, Section 2 of the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME).
At all times material hereto, Respondent, John Golfin, was employed by Petitioner as a Lead Custodian or Custodian assigned to Miami Dorsey Skill Center (Dorsey), a Dade County public school. Respondent is a member of the AFSCME bargaining unit.
Respondent has been employed by Petitioner for approximately sixteen (16) years. In his job, Respondent has direct contact with students.
At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Fla. Stat.
5a. On or about October 11, 1994, Respondent pled nolo to and had adjudication withheld on charges of "theft/to appropriate."
On or about November 28, 1994, Respondent was arrested for burglary and grand theft. He was adjudicated guilty on or about April 25, 1995, and he was sentenced to 90 days in the Broward County Jail and one year probation.
On or about August 18, 1990, Respondent was arrested for the purchase/possession of cocaine. The case was "no- actioned" on or about January 28, 1991.
On or about May 30, 1986, Respondent was arrested for possession of marijuana and was sentenced to six months probation.
On or about June 22, 1985, Respondent was arrested for strong armed robbery. He pled guilty to "attempt to solicit," a first degree felony, on or about September 17, 1985, and served 12 weekends in the Dade County Jail and three months probation.
Petitioner no longer maintains a level of trust with Respondent due to his criminal history.
Petitioner repeats each and every allegation contained in paragraphs 1-9 above with the same force and effect as if herein fully set forth.
Respondent has failed to conduct himself in a manner that reflects credit upon himself and the school system.
Such acts by Respondent constitute conduct unbecoming a School Board employee, a ground warranting dismissal pursuant to Section 230.23(5)(f), Fla. Stat., Section 231.3605(2)(b), Fla. Stat., and School Board Rule 6Gx13-4A-1.21(1).
Petitioner repeats each and every allegation contained in paragraphs 1-9 above with the same force and effect as if herein fully set forth.
Respondent has been convicted of crime(s) involving moral turpitude.
Such acts by Respondent constitute conviction of a
crime involving turpitude, a ground warranting dismissal pursuant to Sections 230.23(5)(f), 231.02(2)(a), 231.3605(2)(b), and/or 231.36(6)(b), Fla. Stat.
Petitioner repeats each and every allegation in paragraphs 1-9 above with the same force and effect as if herein fully set forth.
Such acts by Respondent constitute conduct that is inconsistent with the standards of public conscience and good morals and is sufficiently notorious to bring Respondent or the education profession into public disgrace or disrespect and impair his service in the community.
Such acts by Respondent constitute immorality, a ground warranting dismissal pursuant to Sections 230.23(5)(f), 231.3605(2)(b), and 231.36(6)(b), Fla. Stat., and Rule 6B-4.009(4), F.A.C.; Rosario v. Burke, 605 So.2d 523, 524 (Fla. 2d DCA 1992); Smith v. School Board of Leon County, 405 So.2d 183, 184 (Fla. 1st DCA 1981).
Petitioner repeats each and every allegation in paragraphs 1-9 above with the same force and effect as if herein fully set forth.
Such acts by Respondent demonstrate a lack of good moral character, a ground warranting dismissal pursuant to Sections 230.23(5)(f), 231.3605(2)(b), and 231.02(1), Fla. Stat., and School Board Rule 6Gx13-4C-1.021.
Petitioner repeats each and every allegation in paragraphs 1-9 above with the same force and effect as if herein fully set forth.
Such acts by Respondent demonstrate a lack of good citizenship in the community, a ground warranting dismissal pursuant to Sections 230.23(5)(f), 231.3605(2)(b), Fla. Stat., and School Board Rule 6Gx13-4C-1.02.
As noted above, the final hearing in this case was held before the undersigned on January 24, 1997. At the outset of the hearing, the parties presented argument on the School Board's second motion to amend the Notice of Specific Charges. Respondent, through counsel, indicated that he opposed the motion to the extent that it sought to add the allegation that, "[o]n or about October 11, 1994, Respondent pled
nolo to and had adjudication withheld on charges of 'theft/to appropriate.'" Following the presentation of such argument, the undersigned announced that he would hear whatever evidence the parties wished to present concerning that additional allegation, but that he would not rule on the School Board's motion until the parties had had the opportunity to present further argument, in written post- hearing submittals, concerning the matter.
The following witnesses testified at the final hearing: George McCord, a police officer with the City of Pembroke Pines; Henry Horstmann, a School Board administrator; Stella Johnson, the principal of D.A. Dorsey Educational Center; and Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards. In addition, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 6 and 8 through 13 and Joint Exhibit 1.01
At the close of the evidentiary portion of the hearing on January 24, 1997, the parties were advised of their right to file proposed recommended orders and a deadline was established (15 days from the date of the Division of Administrative Hearings' receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The Division of Administrative Hearings received the
01 One other exhibit, Petitioner's Exhibit 7, was offered into evidence, but was rejected.
transcript of the final hearing in this case on February 10, 1997. On February 26, 1997, the parties filed their proposed recommended orders.
The parties' proposed recommended orders both contain argument on the issue of whether the School Board's second motion to amend the Notice of Specific Charges should be granted. Having carefully considered the parties' arguments, the undersigned hereby grants the motion, except to the extent that
it seeks to add to the Notice the allegation that, "[o]n or about October 11, 1994, Respondent pled nolo to and had adjudication withheld on charges of 'theft/to appropriate.'" Even if this allegation is true (and the unrebutted evidence adduced by the School Board at hearing reflects that it is), these facts do not provide a basis upon which to find that disciplinary action against Respondent is warranted. See Garron v. State, 528 So.2d 353 (Fla. 1988)("a plea of nolo contendre amounts to [n]either a confession of guilt [n]or a 'conviction' for purposes of capital sentencing purposes. A nolo plea means 'no contest,' not 'I confess.' It simply means that the defendant, for whatever reason, chooses not to contest the charge. He does not plead either guilty or not guilty, and it does not function as such a plea"); Molinari v. Department of Business and Professional Regulation, 22 Fla. L. Weekly D350 (Fla. 4th DCA February 5, 1997)(there is a "general rule that a
plea of no contest may be entered 'without any collateral implications to the defendant in other civil or criminal proceedings;'" licensee's "no contest plea could not . . . be the basis of the revocation of [his] license," where the licensing statute did not provide, at the time of the entry of the plea, "that a nolo contendre plea 'shall be considered a conviction'"); Kelly v. Department of Health and Rehabilitative Services, 610 So.2d 1375 (Fla. 2d DCA 1992)("[a] no contest plea . . . represents only an accused's unwillingness to contest charges against him, and does not constitute an admission of guilt in a civil suit or in an administrative
proceeding"); Wyche v. Florida Unemployment Appeals Commission, 469 So.2d 184, 186-
87 (Fla. 3d DCA 1985)("[a] plea of no contest represents only an unwillingness to contest a charge;" "[i]t does not constitute an admission of guilt and may not be used as direct evidence of guilt in a civil suit"); Holland v. Florida Real Estate Commission, 352 So.2d 914, 915 (Fla. 2d DCA 1977)("[t]raditionally, the entry of a plea of nolo contendre has been given no evidentiary effect beyond the action in which it was entered;" "[d]espite the relaxation of the strict rules of evidence which is permitted by Section 120.58(1)(a), Florida Statutes (1975), we do not believe that evidence of a nolo contendre plea would be admissible as evidence of guilt in an administrative proceeding any more than it would be in court;" "[i]n the eyes of the law a person is not deemed to have committed a crime until an adjudication of guilt has been entered against him.").
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Dade County, Florida.
Respondent has been employed by the School Board since March 23, 1979.
He is currently under suspension pending the outcome of these disciplinary proceedings.
For the duration of his employment with the School Board until his suspension, Respondent was a custodial worker assigned
to the D.A. Dorsey Educational Center (Center). At the time of his suspension, he was a lead custodian at the Center and, in the opinion of the principal of the Center, Stella Johnson, "do[ing] a fine job" performing his custodial duties.
As the lead custodian, Respondent occupied a position of trust inasmuch as he had the keys to the Center and ready access to School Board property inside the building. Furthermore, at times, the performance of his custodial duties brought him in direct contact with students.
In the summer of 1985, Respondent was the subject of a School Board police investigation.
The results of the investigation were set forth in an investigative report prepared by the School Board police.
Upon receiving the investigative report, which indicated that Respondent had been arrested after a purse snatching incident and charged with armed robbery, Henry Horstmann, a director in the School Board's Office of Professional Standards, scheduled a conference-for-the-record with Respondent.
At the time of the conference, according to the information Horstmann had received, the armed robbery charge against Respondent had not been resolved.
Horstmann warned Respondent at this 1985 conference- for-the-record that criminal activity on Respondent's part, whether occurring on or off the job, could lead to Respondent's dismissal.
Approximately a year later, Horstmann was advised that the criminal proceeding against Respondent had ended with Respondent pleading guilty to, and being convicted of, the crime of "attempting to solicit."
Because Respondent was "a good employee insofar as his performance at the work site," the principal of the Center02 wanted him to remain in his position.
Consequently, he was not terminated.
In the fall of 1994, while working a second job that involved helping in the cleaning of the Pembroke Lakes Mall in Pembroke Pines, Florida, Respondent stole merchandise from stores in the mall (after business hours when the stores were closed).
On November 28, 1994, Respondent gave a statement to Pembroke Pines police confessing to these crimes.03
Criminal charges were filed against Respondent.
On April 25, 1995, based upon guilty pleas that he had entered, Respondent was adjudicated guilty of: one count of burglary in Broward County
02 Stella Johnson was not the principal of the Center at the time. It was not until August of 1991 that she became principal of the school.
03 In response to a question asked by the interrogating officer, Respondent stated that he committed these crimes because he had "[p]roblems . . . marriage, jobs,
Circuit Court Case No. 95000607CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000609CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 94020151CF10A; and one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000671CF10A. In each of these cases, he was sentenced to 90 days in the Broward County Jail and one year of probation. The sentences were to run concurrently.
In August of 1995, Johnson received a telephone call from Respondent's probation officer, who was seeking verification of Respondent's employment status.
It was during this telephone conversation with Respondent's probation officer that Johnson first learned of the thefts that Respondent had committed while working at the Pembroke Lakes Mall.
Immediately after the conclusion of the conversation, Johnson telephoned the Office of Professional Standards for guidance and direction.04
In accordance with the advice she was given, Johnson requested the School
Board police to conduct an investigation of Respondent's criminal background.
Pursuant to Johnson's request, on or about October 25, 1995, School Board police conducted such an investigation and apprised her, in writing, of the preliminary results of the investigation.
Johnson passed on the information she had received from the School Board police to the Office of Professional Standards.
Thereafter, a conference-for-the-record was scheduled to address Respondent's "future employment status with Dade County Public Schools."
The conference-for-the-record was held on February 7, 1996. Dr. James Monroe, the executive director of the Office of Professional Standards, prepared, and
bills, drugs, just problems."
04 Johnson advised the Office of Professional Standards during this telephone call that there had been a series of thefts of school property at her school and that, in some instances, it appeared that one or more school employees might be responsible because of the absence of any signs of forced entry. Johnson, however, had insufficient evidence to prove that Respondent was the perpetrator of any of these thefts.
subsequently furnished to Respondent, a memorandum (dated February 28, 1996) in which he summarized what had transpired at the conference. The memorandum read as follows:
On February 7, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards conducted by this administrator. In attendance were Ms. Stella Johnson, Principal, Dorsey Educational Center, Mr. Nelson Perez, District Director, Ms. Chris Harris, Bargaining Agent Representative, American Federation of State, County, [and] Municipal Employees, and this administrator.
The conference was held to address Investigative Report No. A00007 concerning your prior arrest, and your future employment status with Dade County Public Schools.
As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian on March 23, 1979 and assigned to D.A. Dorsey Educational Center to the present.
A Review of the record included reference to the following investigative issues:
This administrator presented to and reviewed with you a copy of the investigative report in its entirety. In reference to your arrest of November 28, 1994, you reported having been detained by police authorities and that you remain on probation through April 4, 1996.05 You declined to make a comment when asked about your arrest of August 18, 1990 for purchase/possession of cocaine. This administrator noted a similar arrest of May 30, 1986 for possession of marijuana for which you declined to make a comment. In reference to your arrest of June 22, 1985, I noted that you had been arrested (May 30, 1986) while under a three year probation during the period of September 17, 1985 through September 17, 1988. Ms. Harris raised a question as to the need to address prior arrests. Ms. Johnson expressed concern relative to recurring incidents of theft during time periods for which you had been granted permission to enter the facilities during off duty hours. Ms. Johnson reported having previously discussed these incidents with you. Ms. Johnson noted that your second arrest had adversely impacted your overall effectiveness as an employee inasmuch as your assigned duties and responsibilities include making provisions for the maintenance, cleaning and security of School Board equipment and property.
0 5 It appears that, at the time of this
5 Cont. February 7, 1996, conference-for-the-record, the School Board administration knew that Respondent had been adjudicated guilty of, and sentenced for, the crimes (of burglary and grand theft) he had committed at the Pembroke Lakes Mall.
This administrator presented to you and reviewed with you memoranda dated March 13, 1984, February 17, 1984, February
9, 1984, December 12, 1983 and November 2, 1983 in their entirety. I specifically reviewed with you the principal's notation of your unacceptable performance relative to your failure to secure gates and doors as required. Ms. Johnson noted that she has discussed similar occurrence with you on a recurring basis.
You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Associate Superintendent in the Bureau of Professional Standards and Operations, the Assistant Superintendent of the Office of Applied Technology, Adult, Career and Community Education, and the Principal of Dorsey Education[al] Center.
Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension or dismissal.
You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record.
On or about July 2, 1996, the School Board police supplemented its previous report of the results of its investigation of Respondent's criminal record.
On September 25, 1996, another conference-for-the-record was held concerning Respondent's "future employment status with Dade County Public Schools."
Dr. Thomasina O'Donnell, who had conducted the September 25, 1996, conference-for-the-record on behalf of the Office of Professional Standards, prepared, and sent to Respondent, a summary of the conference.
The summary, which was dated September 30, 1996, read as follows:
On September 25, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards, In attendance were Ms. Stella Johnson, Principal, Miami Skill Center, Mr. Herman Bain, Board Member, AFSCME, and this administrator.
The conference was held to address your noncompliance with School Board policy and rules regarding Conduct Unbecoming a School Board Employee and your future employment status with Dade County Public Schools.
As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian in 1979 and assigned to Dorsey Education Center where you have remained.
I began by reviewing the reason for this conference which is to discuss a Records Check that revealed a total of four arrests. The last arrest was in 1994 for burglary and grand theft and it resulted in an adjudication of guilty.
You said that during that period of time when you had been arrested, you had personal problems. However, currently that is no longer the case and you have your life under control.
Ms. Johnson, your principal, said that your work performance is good and you do a fine job. Your attendance is also good.
Your union representative requested a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, Employee Conduct, which was provided. I explained that although your arrests were not directly related to your Dade County Public Schools job, there is a level of expectation regarding employee conduct and your arrests place you in violation of that expectation.
Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendation will compel formal notification of the recommended action of disciplinary measures to include: a letter of reprimand, suspension, dismissal, or the imposition of community service.
You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. Since there were not further questions or comments, the conference was adjourned.
At its October 23, 1996, meeting, the School Board suspended Respondent and initiated dismissal proceedings against him "for just cause, including violation of employee conduct rule and conviction of a crime involving moral turpitude."
As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract).
Article II, Section 3, of the AFSCME Contract provides as follows:
ARTICLE II- RECOGNITION
SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the designation of the organizational structure of the DCPS and lines of administrative authority of DCPS.
It is understood and agreed that management possess the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following:
Discipline or discharge of any employee for just cause;
Direct the work force;
Hire, assign, and transfer employees;
Determine the missions of the Board agencies;
Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions;
Introduce new or improved methods or facilities;
Change existing methods or facilities;
Relieve employees because of lack of work;
Contract out for goods or services; and,
Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment.
Article IX of the AFSCME Contract addresses the subject of "working conditions."
Section 11 of Article IX is entitled "Personal Life." It provides as follows:
The private and personal life of an employee, except for such incidents and occurrences which could lead to suspension and dismissal as provided by statute, shall not be within the appropriate concern of the Board.06
0 6 This provision of the AFSCME Contract does not protect employees who engage in criminal conduct inasmuch as the commission of a crime
Article XI of the AFSCME Contract addresses the subject of "disciplinary action."
Section 1 of Article XI is entitled "Due Process." It provides as follows:
Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed:
1. | verbal warning; | ||
2. | written warning (acknowledged); | and, | |
3. A. | Conference-for-the-Record. Conference-for-the-Record shall | be | held |
as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation.
The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be
is not a "private and personal" matter. Rather, it is "an offense against the public." Shaw v. Fletcher, 188 So. 135, 136
(Fla. 1939).
consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record).
The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated.
The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency.
The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit.
Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows:
Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-
in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non- reappointments are not subject to the grievance/arbitration procedures.
Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows:
In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Section 4 of Article XI is entitled "Types of Separation." It provides, in part, as follows:
Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation.
Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee.
Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for
termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence.
Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time.
Non-reappointment-- The employee is separated by management's decision not to offer another annual contract. However, such non-reappointment shall not be in lieu of discipline or lay-off. Employees whose performance has been deemed marginal by the supervising administrator, who have been counseled during the school year concerning performance, and have failed to perform acceptably shall not be reappointed. Such employees and the Union shall be put on written notice of possible non-reappointment. Counseling and written notice of non- reappointment shall be provided in a timely manner. This action shall not be arbitrary or capricious, but based upon reason for the best interest of the employer. AFSCME bargaining unit members employed by the school district in excess of five years shall not be subject to non-reappointment. Such employees may only be discharged for just cause.
Layoff-- . . .
The factors most important in determining what type of separation occurred for a given employee are: which party initiated the
action; what time of the work year the action occurred; and the employer's expressed intent.
Appendix III of the AFSCME Contract addresses the subject of "classification plan and procedures."
Section R of Appendix III is entitled "Custodial Services." It provides, in part, as follows:
The following guidelines and procedures will be implemented regarding the organization and provision of custodial services.
1. SUPERVISION
The site administrator (e.g., principal) shall have overall responsibility and supervisory authority for all custodial activities and resultant facility condition.
The principal's responsibility in this area is typically and properly delegated to the site Head custodian (or, in a few very large facilities, to a Plant Foreman). The Head Custodian (or Plant Foreman) shall be responsible for all custodial activities on all shifts.
Custodians who lead other custodial workers in a group or team shall be designated as Lead Custodians. Lead Custodians would be limited to one per shift, per site. Where a single custodian is assigned to a shift and is responsible for closing and securing the facility at the end of that shift, that custodian would also be designated as a Lead Custodian. . . .
CAREER LADDER
The custodial career ladder shall include criteria/guidelines, as outlined below:
Job Classification . . .
Site Custodian . . . Lead Custodian . . . Head Custodian . . . Plant Foreman . . . Master Custodian . . .
TRAINING . . .
Site Custodian
(1) Works at a school or facility site . . .
Lead/Head Custodian or Plant Foreman
(1) This is a leadership position at a school or facility site. . . .
As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations,07 including Rules 6Gx13-4A-1.21(I), 6Gx13-4C-1.02, and 6Gx13- 4C1.021,08 which provide as follows:
Rule 6Gx13-4A-1.21(I)
Permanent Personnel
RESPONSIBILITIES AND DUTIES
07 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
08 An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract.
I. EMPLOYEE CONDUCT
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.
Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.
6Gx13-4C-1.02
Activities
NON-INSTRUCTIONAL PERSONNEL
The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur.
One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms its wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state.
Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community.
6Gx13-4C-1.021
FINGERPRINTING OF ALL EMPLOYEES UPON APPLICATION AND EMPLOYMENT
Pursuant to Florida Statute 231.02, it is the intent of the School Board to insure that only individuals of good moral character09 be employed by the school system. The Dade County Public Schools work force is mobile and an employee in the course of a career may be assigned to various work locations where students are present. It is thus necessary to perform the appropriate security checks on all newly hired personnel.
All applicants for full-time and part- time jobs shall be fingerprinted at the time of application for employment. When the applicant is hired, the district shall file a complete set of fingerprints on the new hire with the Florida Department of Law Enforcement (FDLE). FDLE will process and submit the fingerprints to the Federal Bureau of Investigation (FBI) for federal processing. The cost of fingerprinting and the fingerprint processing shall be borne by the employee.
All new employees, full and part-time, shall be on probationary status pending fingerprint processing and determination, based on results of the fingerprint check, of compliance with standards of good moral character. Employees not found to be of good
0 9 Individuals who engage in "immorality," as defined in Rule 6B-4.009(2), Florida Administrative Code, (i.e., conduct "inconsistent with the standards of public conscience and good morals [which is] sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community") are not "individuals of good moral character," within the meaning of School Board Rule 6Gx13-4C-1.021.
moral character will have their probationary employment terminated.
For purposes of this rule, good moral character means exemplifying the acts and conduct which could cause a reasonable person to have confidence in an individual's honesty, fairness and respect for the rights of others and for the laws of the state and nation.
The Dade County Public Schools shall review fingerprint reports and determine if an employee's criminal record contains crimes involving moral turpitude. For purposes of this rule, moral turpitude means "a crime that is evidenced by an act of baseness, vileness, or depravity in the private and social duties, which, according to the accepted standards of the time, a person owes to other people or to society in general, and the doing of the act itself and not its prohibition by statutes, fixes moral turpitude." Rule 6B-4.009(6), FAC.
Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude will be terminated from employment.
Crimes which may demonstrate moral turpitude include but are not limited to:
Murder (Section 782.04 F.S.)
Manslaughter (Section 782.07 F.S.)
Vehicular homicide (Section 782.071 F.S.)
Killing an unborn child by injury to the mother (Section 782.09 F.S.)
Assault upon a minor (Section
784.011 F.S.)
Aggravated assault (Section 784.021 F.S.)
Aggravated assault relating to battery upon a minor (Section 784.03 F.S.)
Aggravated battery (Section 784.045 F.S.)
Kidnapping (Section 787.01 F.S.)
False imprisonment (Section 787.02 F.S.)
Removing children from the state or
concealing children contrary to court order (Section 787.04 F.S.)
Sexual battery (Section 794.011 F.S.)
Carnal intercourse with an unmarried person under 18 years of age (Section 794.05 F.S.)
Prostitution (Chapter 796 F.S.)
Arson (Section 806.01 F.S.)
Robbery (Section 812.13 F.S.)
Incest (Section 826.04 F.S.)
Aggravated child abuse (Section 827.03 F.S.)
Child abuse (Section 827.04 F.S.)
Negligent treatment of children (Section
827.05 F.S.)
Sexual performance by a child (Section
827.071 F.S.)
Exploitation of an elderly person or disabled adult (Section 825.102 F.S.)
Drug abuse if the offense was a felony or if any other person involved in the offense was a minor (Chapter 893 F.S.)
If the administration finds it appropriate upon consideration of the particular circumstances of an applicant's/employee's case (timing, persons involved, specific mitigating facts), a determination may be made finding that such crime as applied to the applicant/employee does not involve moral turpitude.
A probationary employee terminated because of lack of good moral character including but not necessarily limited to conviction of a crime involving moral turpitude shall have the right to appeal such decision to Labor Relations and Personnel Management. The request for appeal must be filed within 15 days following notification of termination.
Personnel who have been fingerprinted and processed in accordance with this rule and who have had a break in service of more than
90 days shall be required to be re- fingerprinted in order to be re-employed.
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Fla. Stat.
Such authority extends to personnel matters. Section 231.001, Fla. Stat.("[e]xcept as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees"). The School Board's Rules 6Gx13-4A-1.21(I) (which
requires School Board employees, as "representatives of the Dade County Public Schools," to "conduct themselves in a manner that will reflect credit upon themselves and the school system"), 6Gx13-4C-1.02 (which requires non-instructional School Board
employees to "demonstrat[e] good citizenship in the community" and to "represent[] the school system ably both formally and informally in the community"), and 6Gx13-4C-1.021 (which requires
School Board employees to be of "good moral character," that is "exemplifying the acts and conduct which could cause a reasonable
person to have confidence in an individual's honesty, fairness and respect for the rights of others and for the laws of the state and nation," and, in addition, gives notice that "[e]mployees found . . . to have been convicted of a crime involving moral turpitude will be terminated from employment"010)
010 Section 231.02, Florida Statutes, similarly provides that district school board employees must be of "good moral character" and that "[e]mployees found . . . to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students." According to subsection (2)(b) of Section 231.02, Florida Statutes, "the lack of good moral character shall be defined as having been convicted of a crime involving moral turpitude."
In its proposed recommended order, Respondent argues that the School Board is barred by Section 112.011(1)(a), Florida Statutes, from taking disciplinary action against him based upon
10 Cont. his criminal convictions. Section 112.011(1)(a),
Florida Statutes, provides as follows:
(1)(a) Except as provided in s. 775.16, a person shall not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or any municipality by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.
To the extent that Section 112.011, Florida Statutes, provides that a person is eligible for public employment despite having been convicted of a crime involving moral turpitude which is neither described in Section 775.16, Florida Statutes, nor a felony or first degree misdemeanor directly related to the position of employment, it does not apply to prospective or current employees of district school boards seeking or occupying
are such rules.
These rules, which impose reasonable standards of employee conduct, are not beyond the scope of School Board's personnel rule-making authority simply because they seek to regulate off-duty conduct. The School Board is entitled to require its employees to adhere to standards of social conduct that the School Board deems to be acceptable, provided these standards are reasonable. See Kennett v. Barber, 31 So.2d 44,
46-47 (Fla. 1947); Seminole County Board of County Commissioners
positions requiring direct contact with students inasmuch as Section 231.02, Florida Statutes, specifically provides that such persons are ineligible for such employment. See McKendry v. State, 641 So.2d 45, 46 (Fla. 1994)("a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms"); Adams v. Culver, 111 So.2d 665, 667 (Fla. 1959)("[i]t is a well settled rule of statutory construction, however, that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation 'the statue relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute"); Christo v. Department of Banking and Finance, 649 So.2d 318, 321 (Fla. 1st DCA 1995)("a more specific statute covering a particular subject is controlling over a statutory provision covering the same subject in more general terms"); Lincoln v. Florida Parole Commission, 643 So.2d 668, 672 (Fla. 1st DCA 1994)("[w]hen two statutes are apparently inconsistent or in conflict, the more specific statute controls over the more general statute addressing the same subject"); Department of Health and Rehabilitative Services v. Gross, 421 So.2d 44, 45 (Fla. 3d DCA 1982)("a statute dealing specifically with a particular subject matter takes precedence over another statute covering the same and other subjects in general terms").
10 Cont. Respondent's reliance on Section 112.011(1)(a), Florida
Statutes, is therefore misplaced. Furthermore, Section 112.011(1)(a), Florida Statutes, deals with convictions predating the commencement of the employment relationship, whereas the instant case involves criminal conduct and convictions occurring after Respondent had become a School Board employee and while he was subject to standards regulating School Board employee
v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982); Richter v. City
of Tallahassee, 361 So.2d 205 (Fla. 1st DCA 1978); Metropolitan Dade County v. Mingo, 339 So.2d 302, 304 (Fla. 3d DCA 1976).
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Fla. Stat.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Section 447.209, Fla. Stat.
It, however, must exercise these powers in a manner that is consistent with the requirements of law.
"Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."011 Sublett v. District School Board of Sumter County,
617 So.2d 374, 377 (Fla. 5th DCA 1993).
A district school board employee against whom dismissal proceedings have been initiated must be given a notice of
conduct.
011 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617
specific charges prior to the Section 120.57(1) hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule[, regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring opinion of Judge Jorgenson).
Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the notice of specific charges. See Kinney v. Department of State, 501
So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
At the Section 120.57(1) hearing, the burden is on the district school board to prove the allegations contained in the notice. Inasmuch as it is a disciplinary proceeding that does not involve licensure, the district school board's proof need only meet the preponderance of the evidence standard. See
Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"); see also Allen v. School Board
So.2d 374, 377 (Fla. 5th DCA 1993).
of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990)("[w]e . . .
find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in [School Board employee] dismissal proceedings was a preponderance of the evidence;" "[t]he instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard"); Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990)("[w]e
disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard").
Where the employee sought to be terminated is an "educational support employee," the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes,012 which provides, in part, as follows:
012 Contrary to the suggestion made in the Notice of Specific Charges (as finally amended) served on Respondent, and notwithstanding the holding in Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the case cited in paragraph 18 of the Notice in support of this suggestion, the termination of a non-certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified district school board personnel:
We are not completely convinced that the 12 Cont. legislature initially intended the narrow grounds for dismissal described in section
(1) As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a member of the operations department, a member of the maintenance department . . ., or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require
20 or more hours in each normal working week.
"Employee" means any person employed as an educational support employee.
"Superintendent" means the superintendent of schools or his or her
231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.
of Leon County, 405 So.2d 183 (Fla. 1st
DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning
nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
designee.
(2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school board rule in cases where a collective bargaining agreement does not exist.
Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist, or reduces the number or employees on a districtwide basis for financial reasons.
In the event the superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.
Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract).
Pursuant to Section 231.3605, Florida Statutes, his employment may be terminated only "for reasons stated in the collective bargaining agreement."
An examination of the AFSCME Contract (and Article XI thereof in particular) reveals that a bargaining unit member
covered by the agreement may be disciplined for "deficient performance," "non-performance of job responsibilities," "violation of federal statutes [and] State Statutes," "violat[ion of] any rule, regulation or policy," or "defiance of the administrator's authority," provided that the disciplinary action taken is "consistent with the concept and practice of progressive or corrective discipline" (as described in the agreement).
The Notice of Specific Charges (as finally amended) served on Respondent alleges that Respondent's dismissal is warranted under the provisions of the AFSCME Contract "due to his criminal history." According to Notice, his "criminal history" reflects that, while an employee of the School Board: (Count I) he has been guilty of "conduct unbecoming a School Board employee" in that, in violation of School Board Rule 6Gx13-4A- 1.21(I), he "has failed to conduct himself in a manner that
reflects credit upon himself and the school system;" (Count II) he "has been convicted of crimes(s) involving moral turpitude;" (Count III) he has been guilty of "immorality" in that he has
engaged in "conduct that is inconsistent with the standards of public conscience and good morals and is sufficiently notorious to bring Respondent or the education profession into public disgrace or disrespect and impair his service in the community;" (Count IV) he has been guilty of a "lack of good moral
character," in violation of School Board Rule 6Gx13-4C-1.021; and (Count V) he has been guilty of "a lack of good citizenship
in the community," in violation of School Board Rule 6Gx13-4C-
1.02.
Respondent's alleged "criminal history" is set forth in numbered paragraphs 5. through 8. of the Notice of Specific Charges (as finally amended), which contain the following allegations:
On or about November 28, 1994, Respondent was arrested
for burglary and grand theft. He was adjudicated guilty on or about April 25, 1995, and he was sentenced to 90 days in the Broward County Jail and one year probation.
On or about August 18, 1990, Respondent was arrested for the purchase/possession of cocaine. The case was "no- actioned" on or about January 28, 1991.
On or about May 30, 1986, Respondent was arrested for possession of marijuana and was sentenced to six months probation.
On or about June 22, 1985, Respondent was arrested for strong armed robbery. He pled guilty to "attempt to solicit," a first degree felony, on or about September 17, 1985, and served 12 weekends in the Dade County Jail and three months probation.
There is insufficient record evidence to support the allegations made in numbered paragraphs 6. through 8. of the Notice of Specific Charges (as finally amended). The only proof offered in support of these allegations was hearsay evidence that would not be admissible over objection in a civil action. Such evidence is not sufficient to support a finding of fact.013 See
013 Even if Respondent was arrested, as alleged in numbered paragraphs 6. through 8. of the Notice of Specific Charges (as finally amended), these arrests, standing alone, would not provide the School Board with grounds to take disciplinary action against him under the AFSCME Contract. See Clark v. School Board of Lake County, 595 So.2d 735, 739 (Fla. 5th DCA 1992)("[t]he charge of abuse is certainly not evidence of the commission of
Section 120.57(1)(c), Fla. Stat. (Supp. 1996)("[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions"); see also Carson v. Gibson, 595 So.2d 175, 176-77
(Fla. 2d DCA 1992), quoting from Bergeron Land Development, Inc., v. Knight, 307 So.2d 240, 241 (Fla. 4th DCA 1975)("[i]n order to prove some matter contained in the record of a case other than the one being litigated, a party must offer the other court file or certified copies of portions thereof into evidence in the case then being litigated").014
the act in our system of justice"); Baker v. School Board of Marion County, 450 So.2d 1194, 1195 (Fla. 5th DCA 1984)("we must reject this argument, otherwise whenever a teacher is accused of a crime and is subsequently exonerated with no evidence being
presented to tie the teacher to the crime, the school board could, nevertheless, dismiss the teacher because the attendant 13
Cont. publicity has impaired the teacher's effectiveness. Such a rule would be improper").
014 Even if the School Board had submitted proof sufficient to establish that Respondent was convicted of the crimes described in numbered paragraphs 6. through 8. of the Notice of Specific Charges (as finally amended), absent competent substantial evidence that these convictions were the result of guilty pleas entered by Respondent, such proof would be insufficient to establish that Respondent actually engaged in the criminal conduct upon which the convictions were based. See Boshnack v. World Wide Rent-A-Car, 195 So.2d 216 (Fla. 1967)("a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but . . . a judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest"); Kelly v.
Department of Health and Rehabilitative Services, 610 So.2d 1375, 1377 (Fla. 2d DCA 1992)("[a]s a general rule, a judgment of conviction, in and of itself, is not conclusive proof of the facts upon which it is based. An exception to that rule exists,
The record, however, does clearly and convincingly establish that: Respondent committed, and was subsequently convicted of (based upon his guilty pleas), the crimes of burglary and grand theft (four counts of the former and three counts of the latter) referenced in numbered paragraph 5. of the Notice of Specific Charges (as finally amended); he engaged in such conduct notwithstanding that he had been warned at a 1985 conference-for- the-record that criminal activity on his part, whether occurring on or off the job, could lead to his dismissal; not only did Respondent's conduct violate "State Statutes," his commission and conviction of the aforementioned crimes constituted violations of School Board Rules 6Gx13-4A-1.21(I), 6Gx13-4C-1.02, and 6Gx13-4C- 1.021, as alleged in the Notice of Specific Charges (as finally
amended); and these are offenses for which a bargaining unit member may be disciplined under the AFSCME Contract. Furthermore, it does not appear that there has been any material departure from the procedural requirements (prescribed by Section 231.3605, Florida Statutes, and the AFSCME Contract) which must be followed before the School Board may take final action to impose "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) against Respondent. The argument advanced by Respondent that the School Board is barred from
however, where a judgment of conviction is based upon a guilty plea. In that instance, a defendant is estopped from denying his guilt of the subject offense in a subsequent civil suit").
taking "disciplinary action" against him because "the School Board was in possession of all of the relevant information concerning [his] four prior arrests and the disposition of same as of February 7, 1996, when the first Conference for the Record in this case was held[, a]nd yet the School Board took no further action with respect to disciplining [him] until approximately seven (7) months later, in September of 1996, when a second Conference for the Record was held concerning the same conduct," is without merit.015 Neither the AFSCME Contract, Section 231.3605, Florida Statutes, nor any other statutory provision, including Section 231.291, Florida Statutes, (which deals with the maintenance and content of public school system employee personnel files) prescribes a specific time limit for the taking of "disciplinary action" against a bargaining unit member following the discovery of information that such action is warranted. Furthermore, to the extent that Respondent is relying on the doctrine of laches, he has not shown that the doctrine is applicable to the instant case. "Laches is based upon an unreasonable delay in asserting a known right which causes undue prejudice to the party against whom the claim is asserted." Appalachian, Inc., v. Olson, 468 So.2d 266, 269 (Fla. 2d DCA
015 The delay, however, does suggest that the School Board administration did not view Respondent's off-the-job criminal conduct and resulting convictions to be serious enough, in light of all surrounding circumstances, to require his swift removal
1985). "It is well established that mere lapse of time does not in itself constitute laches," and "applicability of the doctrine depends on the facts of the particular case." Wiggins v. Lykes Bros., Inc., 97 So.2d 273, 275 (Fla. 1957). The facts of the instant case do not establish that the School Board's delay in initiating the instant dismissal proceedings against Respondent has caused him any undue prejudice. Accordingly, these proceedings are not barred by the doctrine of laches.
Taking into consideration (as Article XI, Section 1.B., of the AFSCME Contract mandates) the seriousness of Respondent's offenses and his employment record with the School Board, it is the recommendation of the undersigned that the School Board decline to exercise its authority to terminate Respondent's employment and instead demote him to a site custodian position (pay grade 14) and suspend him (without pay and benefits) for a period of one year (effective October 23, 1996), during which period of time he will be expected to comply with all statutes, rules and regulations governing off-duty School Board employee conduct.016 Although Respondent has certainly set a bad example for students and raised questions regarding his honesty and trustworthiness, his offenses are not sufficiently serious to justify his termination under the particular circumstances of the
from the workplace.
instant case, given the length of his employment with the School Board, the commendable manner in which he has performed his custodial duties over that period of time, and the absence of proof establishing that the School Board has ever been the direct victim of any dishonest, larcenous or other criminal conduct on Respondent's part. See Centellas v. School Board of Dade County,
21 Fla. L. Weekly D2559 (Fla. 3d DCA December 4, 1996); Bell v.
School Board of Dade County, 21 Fla. L. Weekly D2223 (Fla. 3d DCA
October 16, 1996); Collins v. School Board of Dade County, 676 So.2d 1052 (Fla. 3d DCA 1996).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order finding that, for the reasons set forth above, "disciplinary action" against Respondent is warranted and imposing upon Respondent the "disciplinary action" described in paragraph 61 of this Recommended Order.
016 Failure to do so may result in further "disciplinary action" being taken against him.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March, 1997.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the
Division of Administrative Hearings this 4th day of March, 1997.
One other exhibit, Petitioner's Exhibit 7, was offered into evidence, but was rejected.
Stella Johnson was not the principal of the Center at the time. It was not until August of 1991 that she became principal of the school.
In response to a question asked by the interrogating officer, Respondent stated that he committed these crimes because he had "[p]roblems . . . marriage, jobs, bills, drugs, just problems."
Johnson advised the Office of Professional Standards during this telephone call that there had been a series of thefts of school property at her school and that, in some instances, it appeared that one or more school employees might be responsible because of the absence of any signs of forced entry. Johnson, however, had insufficient evidence to prove that Respondent was the perpetrator of any of these thefts.
It appears that, at the time of this February 7, 1996, conference-for-the-record, the School Board administration knew that Respondent had been adjudicated guilty of, and sentenced for, the crimes (of burglary and grand theft) he had committed at the Pembroke Lakes Mall.
This provision of the AFSCME Contract does not protect employees who engage in criminal conduct inasmuch as the commission of a crime is not a "private and personal" matter. Rather, it is "an offense against the public." Shaw v. Fletcher, 188 So. 135, 136 (Fla. 1939).
These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract.
Individuals who engage in "immorality," as defined in Rule 6B- 4.009(2), Florida Administrative Code, (i.e., conduct "inconsistent with the standards of public conscience and good morals [which is] sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community") are not "individuals of good moral character," within the meaning of School Board Rule 6Gx13-4C-1.021.
Section 231.02, Florida Statutes, similarly provides that district school board employees must be of "good moral character" and that "[e]mployees found . . . to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students." According to subsection (2)(b) of Section 231.02, Florida Statutes, "the lack of good moral character shall be defined as having been convicted of a crime involving moral turpitude."
In its proposed recommended order, Respondent argues that the School Board is barred by Section 112.011(1)(a), Florida Statutes, from taking disciplinary action against him based upon his criminal convictions. Section 112.011(1)(a), Florida Statutes, provides as follows:
(1)(a) Except as provided in s. 775.16, a person shall not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or any municipality by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.
To the extent that Section 112.011, Florida Statutes, provides that a person is eligible for public employment despite having been convicted of a crime involving moral turpitude which is neither described in Section 775.16, Florida Statutes, nor a felony or first degree misdemeanor directly related to the position of employment, it does not apply to prospective or current employees of district school boards seeking or occupying positions requiring direct contact with students inasmuch as Section 231.02, Florida Statutes, specifically provides that such persons are ineligible for such employment. See McKendry v. State, 641 So.2d 45, 46 (Fla. 1994)("a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms"); Adams v. Culver, 111 So.2d 665, 667 (Fla. 1959)("[i]t is a well settled rule of statutory construction, however, that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation 'the statue relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute"); Christo v. Department of Banking and Finance, 649 So.2d 318, 321 (Fla. 1st DCA 1995)("a more specific statute covering a particular subject is controlling over a statutory provision covering the same subject in more general terms"); Lincoln v. Florida Parole Commission, 643 So.2d 668, 672 (Fla. 1st DCA 1994)("[w]hen two statutes are apparently inconsistent or in conflict, the more specific statute controls over the more general statute addressing the same subject"); Department of Health and Rehabilitative Services v. Gross, 421 So.2d 44, 45 (Fla. 3d DCA 1982)("a statute dealing specifically with a particular subject matter takes precedence over another statute covering the same and other subjects in general terms"). Respondent's reliance on Section 112.011(1)(a), Florida Statutes, is therefore misplaced. Furthermore, Section 112.011(1)(a), Florida Statutes, deals with convictions predating the commencement of the employment relationship, whereas the instant case involves criminal conduct and convictions occurring after Respondent had become a School Board employee and while he was subject to standards regulating School Board employee conduct.
"A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
Contrary to the suggestion made in the Notice of Specific Charges (as finally amended) served on Respondent, and notwithstanding the holding in Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the case cited in paragraph 18 of the Notice in support of this suggestion, the termination of a non-certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd. of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
Even if Respondent was arrested, as alleged in numbered paragraphs 6. through 8. of the Notice of Specific Charges (as finally amended), these arrests, standing alone, would not
provide the School Board with grounds to take disciplinary action against him under the AFSCME Contract. See Clark v. School Board of Lake County, 595 So.2d 735, 739 (Fla. 5th DCA 1992)("[t]he charge of abuse is certainly not evidence of the commission of the act in our system of justice"); Baker v. School Board of Marion County, 450 So.2d 1194, 1195 (Fla. 5th DCA 1984)("we must reject this argument, otherwise whenever a teacher is accused of a crime and is subsequently exonerated with no evidence being presented to tie the teacher to the crime, the school board could, nevertheless, dismiss the teacher because the attendant publicity has impaired the teacher's effectiveness. Such a rule would be improper").
Even if the School Board had submitted proof sufficient to establish that Respondent was convicted of the crimes described in numbered paragraphs 6. through 8. of the Notice of Specific Charges (as finally amended), absent competent substantial evidence that these convictions were the result of guilty pleas entered by Respondent, such proof would be insufficient to establish that Respondent actually engaged in the criminal conduct upon which the convictions were based. See Boshnack v. World Wide Rent-A-Car, 195 So.2d 216 (Fla. 1967)("a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but . . . a judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest"); Kelly v. Department of Health and Rehabilitative Services, 610 So.2d 1375, 1377 (Fla. 2d DCA 1992)("[a]s a general rule, a judgment of conviction, in and of itself, is not conclusive proof of the facts upon which it is based. An exception to that rule exists, however, where a judgment of conviction is based upon a guilty plea. In that instance, a defendant is estopped from denying his guilt of the subject offense in a subsequent civil suit").
The delay, however, does suggest that the School Board administration did not view Respondent's off-the-job criminal conduct and resulting convictions to be serious enough, in light of all surrounding circumstances, to require his swift removal from the workplace.
Failure to do so may result in further "disciplinary action" being taken against him.
COPIES FURNISHED:
Madelyn P. Schere, Esquire
The School Board of Dade County
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Angela M. Nixon, Esquire Kaplan and Bloom, P.A. Post Office Box 144333
Coral Gables, Florida 33114-4333
Roger O. Cuevas Superintendent of Schools
The School Board of Dade County, Florida 1450 Northeast 2nd Avenue, Suite 403
Miami, Florida 33132
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 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.
| Issue Date | Proceedings |
|---|---|
| Jun. 02, 1997 | Final Order of the School Board of Dade County, Florida filed. |
| Mar. 04, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held January 24, 1997. |
| Feb. 26, 1997 | Respondent`s Proposed Findings of Fact, and Conclusions of Law; Cover Letter filed. |
| Feb. 26, 1997 | Petitioner School Board`s Proposed Recommended Order filed. |
| Feb. 10, 1997 | Transcript filed. |
| Jan. 24, 1997 | Final Video Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Jan. 23, 1997 | Letter to SML from Angela Nixon (RE: list of Respondent`s witnesses w/attachment, tagged) filed. |
| Jan. 21, 1997 | (Petitioner) Notice of Filing Petitioner`s Exhibit 14 and Second Amended Hearing Officer Log; Amended Hearing Officer Log filed. |
| Jan. 17, 1997 | Order Changing Tallahassee Site of Final Hearing sent out. (Video Final Hearing set for 1/24/97) |
| Jan. 15, 1997 | Second Amended Notice of Hearing sent out. (Video Final Hearing set for 1/24/97; 9:15am; Miami & Tallahassee) |
| Jan. 15, 1997 | Order Granting Continuance sent out. (video hearing set for 1/24/97) |
| Jan. 14, 1997 | Petitioner`s Motion to Amend Amended Notice of Specific Charges (filed via facsimile). |
| Jan. 13, 1997 | (Petitioner) Notice of Filing Petitioner`s Exhibits and Hearing Officer Log; Hearing Officer Log ; Notice of Filing Additional Petitioner`s Exhibits and Amended Hearing Officer Log; Amended Hearing Officer Log filed. |
| Jan. 13, 1997 | Letter to SML from Joseph Kaplan (RE: request for continuance) (filed via facsimile). |
| Jan. 09, 1997 | Amended Notice of Hearing sent out. (Video Final Hearing set for 1/15/97; 9:15am; Miami & Tallahassee) |
| Jan. 03, 1997 | Order sent out. (Petitioner`s motion to amend notice of specific charges is granted) |
| Dec. 16, 1996 | (Petitioner) Motion to Amend Notice of Specific Charges; (Petitioner) Amended Notice of Specific Charges (filed via facsimile). |
| Dec. 04, 1996 | Letter to SML from Madelyn Shere (RE: Request for Subpoenas ) (filed via facsimile). |
| Dec. 02, 1996 | (Petitioner) Notice of Specific Charges filed. |
| Nov. 27, 1996 | Letter to SML from Madelyn Schere (RE: Request for Subpoenas) filed. |
| Nov. 25, 1996 | Petitioner`s First Request for Production; Petitioner`s First Interrogatories to Respondent (filed via facsimile). |
| Nov. 21, 1996 | Notice of Hearing sent out. (hearing set for 1/15/97; 9:00am; Miami) |
| Nov. 21, 1996 | (Petitioner) Response to Initial Order (filed via facsimile). |
| Nov. 12, 1996 | Initial Order issued. |
| Nov. 04, 1996 | Agency referral letter; Request for a Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 29, 1997 | Agency Final Order | |
| Mar. 04, 1997 | Recommended Order | Disciplinary action was taken against school custodian based on his criminal conduct and convictions. Dismissal is too harsh in light of mitigating circumstances. |
