STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 97-3734

)

JAMELLA R. KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on January 7, 1998, at Miami, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carlos E. Mustelier, Jr., Esquire

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132 For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.

PRELIMINARY STATEMENT

On July 23, 1997, Petitioner suspended Respondent as a school bus aide and initiated steps for her dismissal. On July 29, 1997, Respondent requested an administrative hearing.

On August 5, 1997, the case was filed with the Division of Administrative Hearings for assignment to an administrative law judge to conduct the proceedings. Petitioner filed its Notice of Specific Charges on September 29, 1997, alleging that Respondent was excessively absent without authorization, was tardy, failed to follow the proper call-in procedures, and refused or willfully neglected to follow reasonable directives given by the proper authorities of Petitioner.

The final hearing was scheduled for October 29, 1997. On that date, Respondent appeared and advised that she was going to be represented by the local union, the American Federation of State, County, and Municipal Employees. Notice of the hearing had been provided to Respondent and to the local union representative. No representative from the union appeared, and counsel for Petitioner called the union and asked why no representative was present. Shortly thereafter, a person from the union appeared but was not able to qualify as a personal representative. The final hearing was continued until January 7, 1998. Notice of the final hearing was sent to Respondent and to the union.

Neither Respondent nor a representative from the union appeared at the final hearing on January 7, 1998. Petitioner called the following witnesses: Jerry Klein, Susan Lilly, and Ron Johnson. Petitioner's Exhibits 1-14 were admitted in evidence. Official recognition was taken of the following:

Miami-Dade County School Board Rules 6Gx13-3E-1.10, 6Gx13-4A- 1.21, 6Gx13-4E-1.011, and 6Gx13-4E-1.10; Transportation Operational Procedures; Sections 230.23, 230.02, 231.3605, 231.44, and 447.209, Florida Statutes; Articles II, V, and XI from the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees and The School Board of Dade, County, Florida; Section 9 of the Department of Transportation Handbook; and Rule 6B-4.009, Florida Administrative Code.

No transcript was filed. Petitioner filed its proposed recommended order on January 16, 1998. The undersigned administrative law judge considered the Proposed Recommended Order in rendering this recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes.

2. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board.

3. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives.

4. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions.

5. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services.

6. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave.

7. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year.

8. From August 28, 1995, to May 28, 1996, King accumulated

   the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences.

9. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance.

10. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive.

11. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed.

12. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance.

13. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem.

14. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver.

15. The Collective Bargaining Agreement between AFSCME and the Board provides:

    ARTICLE II -- RECOGNITION

    
    

    * * *

    
    

    Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the 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:

    1. Discipline or discharge of any employee for just cause; . . .

       * * * ARTICLE V --DEFINITIONS

       * * *

       Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance.

       
       

       Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent.

       
       

       Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave.

       * * *

       
       

       ARTICLE XI -- DISCIPLINARY ACTION

       
       

       Section 4. Types of Separation Dissolution of the employment relation

       between a permanent unit member and the Board may occur in any of four distinct types of separation.

       
       

       * * *

       
       

    2. 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. . . .

       
       

    3. 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.

       
       

16. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

18. The Board is empowered by Section 231.3605(2)(b), Florida Statutes, to terminate an employee for reasons stated in the collective bargaining agreement.

19. Article XI, Section 4B of the AFSCME Collective Bargaining Agreement provides that unauthorized absences totaling ten or more workdays in the previous 12-month period are grounds for dismissal.

20. School Board Rule 6Gx13-4E-1.011, provides that "[a]ny employee who is absent for other than reason of sudden illness, emergency, or without such prior approval, shall be deemed to have been willfully absent without leave."

21. Section 231.44, Florida Statutes, provides that any

    employee who is "willfully absent without leave . . .shall be subject to termination by the school board."

22. From April 23, 1996, through April 22, 1997, King had

    
    

    40 unauthorized absences, which constitutes excessive absenteeism and grounds for dismissal pursuant to the Collective Bargaining Agreement, School Board Rule 6Gx13-4E-1.01l, and Section 231.44, Florida Statutes.

23. School Board Rule 6Gx13-4A-1.21 provides:

    
    

    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.

    
    

24. School Board Rule 6Gx13-3E-1.10 provides that with respect to school bus transportation, the "specific procedures to be followed are outlined in the document entitled "Transportation Rules and Policies Manual," which is incorporated by reference in this rule are a part hereof." The specific provision in the manual addresses King's behavior is found in Section 9 "Attendance Responsibilities: Bus Drivers and Aides," which provides:

    1. Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver misses a route without prior approval, the absence may be considered unauthorized. If time off is taken during a regular working day without a supervisor's approval, the absence may also be considered unauthorized.

       * * *

       
       

    2. The same rules for drivers pertaining to attendance and absences also apply to aides.

    
    

25. Accumulating over 40 days of unauthorized absences over a twelve month period fails to reflect credit upon either the school system or King. King's actions are in direct violation of School Board Rules 6Gx13-4A-1.21 and 6Gx13-3E-1.10, and constitute sufficient grounds and just cause to warrant dismissal of King pursuant to Articles II and IX of the AFSCME Collective

    Bargaining Agreement, and Sections 230.23(5)(f) and 447.209, Florida Statutes.

26. King has continually refused to obey reasonable orders given by her administrators, thereby constituting the nonperformance or deficient performance of her job responsibilities as prohibited by Article XI, Section 4C of the AFSCME Collective Bargaining Agreement.

27. Such nonperformance of her job responsibilities constitutes sufficient grounds and just cause to warrant dismissal pursuant to Articles II and XI, Section 4C of the AFSCME Collective Bargaining Agreement, and Sections 230.23(5)(f), 447.209, and 231.3605(2)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide.

DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 Filed with the Clerk of the

Division of Administrative Hearings this 4th day of February, 1998.

ENDNOTE

1 Subsequent to the initiation of this case, the electorate of the county voted to change the name of the county from Dade to Miami-Dade.

COPIES FURNISHED:

Roger O. Cuevas Superintendent

Dade County School Board 1450 Northeast Second Avenue Suite 403

Miami, Florida 33132

Frank T. Brogan Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Carlos E. Mustelier, Jr., Esquire 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Jamella R. King, pro se 1931 Northwest 77th Street Miami, Florida 33147

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.

Docket for Case No: 97-003734

Orders for Case No: 97-003734