STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LEE COUNTY, )
)
Petitioner, )
)
vs. ) Case No. 99-2214
)
EDWARD G. FULMER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on January 18 and 19, 2000, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Victor M. Arias, Esquire
School Board of Lee County 2055 Central Avenue
Fort Myers, Florida 33901-3988
For Respondent: Robert J. Coleman, Esquire
Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUE
The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, an educational support employee of the Lee County School District, for theft of school property and smoking on school grounds.
PRELIMINARY STATEMENT
On April 13, 1999, Dr. Bruce Harter, Superintendent of Schools for Lee County, presented to the School Board a Petition for Suspension Without Pay and Benefits Pending Termination of Employment (the "Petition"). The Petition set forth factual allegations that Respondent, a carpenter in the Facilities Management and Capital Projects Department ("Facilities Management") of the School Board, removed videotapes without authorization or permission from the Family Learning Center at Tropic Isles Elementary School ("Tropic Isles") and was smoking cigarettes on school grounds. The Petition stated that theft of School Board property is a serious offense, that School Board Policy 2.46 prohibits smoking on school property, and recommended that Respondent be suspended without pay and benefits, pending termination of his employment. The School Board voted to accept the Petition on April 20, 1999.
By letter dated May 7, 1999, counsel for Respondent notified the School Board that Respondent requested a formal evidentiary hearing. On May 17, 1999, the School Board forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing in this matter, pursuant to Section 120.57(1), Florida Statutes. The case was assigned to the undersigned and scheduled for hearing on October 15, 1999. The
case was continued and rescheduled for January 18-19, 2000, when the hearing was held.
At the final hearing, Petitioner presented the testimony of Annette Puckett, a School Board employee in the Title I early intervention reading program; Gary Stephans, a carpenter with Facilities Management; Joseph D. Murphy, a carpenter crew leader with Facilities Management; Joe A. Vaughn, a foreman with Facilities Management; Donald Easterly, construction manager of Facilities Management; Cecelia Mattingly, principal of Tropic Isles during the relevant time period; F. Ralph Gutknecht, director of Facilities Management; Gail Williams, director of personnel services for the School Board; and Jack Hennebery, director of employee relations for the School Board. Respondent testified on his own behalf and presented the testimony of William Mudrey, a retired building maintenance supervisor with the School Board.
Petitioner’s Exhibits C through K, M, and N were admitted into evidence. Respondent’s Exhibits 1-4 were admitted into evidence.
No transcript of the final hearing was ordered. On February 7, 2000, the parties filed a joint motion for extension of time to file proposed recommended orders, which was granted. Respondent filed a proposed recommended order on February 17, 2000. Petitioner did not file a proposed recommended order.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
Since October 1983, Respondent has been employed by the Lee County School District. He was initially employed as a trades helper, promoted to furniture repair, and finally to carpenter in the maintenance department of Facilities Management. He worked for the school district continuously until December 3, 1998, when he was suspended with pay and benefits. Following a predetermination conference and a petition by the Superintendent of Schools, the School Board voted to suspend Respondent without pay and benefits on April 20, 1999.
Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria, aside from recurring criticism for overuse of leave time. Joe Vaughn, Respondent’s immediate supervisor, described his job performance as above average.
On November 23, 1998, Mr. Vaughn teamed Respondent with Gary Stephans, another carpenter, to build bulletin boards and dry erase boards at Tropic Isles. The men were working outside the portables on the Tropic Isles campus.
Annette Puckett works in the Title I department of the School Board. Title I is a federally funded program that
provides take-home computers to students. Among Ms. Puckett’s duties is cleaning and reprogramming the computers.
Ms. Puckett’s main office is at Suncoast Elementary School ("Suncoast"), but her job entails maintaining the computers at all of the Title I schools in the district. On November 23, 1998, Ms. Puckett was cleaning computers in the Family Learning Center portable at Tropic Isles.
Ms. Puckett testified that she knew Respondent fairly well, and saw him outside working with Mr. Stephans, with whom she was less familiar. She had a brief conversation with Respondent, during which she told him that he and Mr. Stephans were welcome to come into the portable to get out of the heat when they finished their job.
Respondent and Mr. Stephans went into the portable where Ms. Puckett was working and took a break in the air conditioning. With Ms. Puckett’s consent, they then moved their materials into the portable and used one of the inside tables as a work table to build bulletin boards.
The portable contained audio-visual equipment, including a television, a stereo, and VCRs used to duplicate tapes for parent training classes. The VCRs were on a stand that also held several neatly stacked piles of blank VHS videotapes.
Mr. Stephans recalled that the tapes were in white cardboard sleeves; Ms. Puckett recalled that the tapes had no covers.
Because Tropic Isles also used this portable as its "Christmas store," the portable contained boxes of holiday materials, including decorative paper bags for gifts.
Both Mr. Stephans and Ms. Puckett testified that as they worked on their respective tasks, Respondent wandered through the portable, looking through its contents. Respondent began looking into the holiday boxes. Ms. Puckett told him that those materials belonged to Tropic Isles, not her program, and that he should not touch those boxes.
Ms. Puckett testified that Respondent next walked over to a closet. She told Respondent not to go in the closet.
Ms. Puckett stated that Respondent told her that he wanted to see if he could use anything in the closet for his daughter’s upcoming birthday. Respondent’s employment file indicates that his daughter’s birthday is on November 30.
Mr. Stephans and Ms. Puckett testified that Respondent took several of the decorative bags and at least two of the videotapes, and walked out of the portable with them. When Respondent returned into the portable shortly thereafter, he was empty-handed.
Ms. Puckett testified that, while Respondent was outside the portable, Mr. Stephans said to her that they could all be blamed for Respondent’s theft, because they were the only three people in the portable. Mr. Stephans recalled telling
Ms. Puckett that he found it "hard to believe" what Respondent had just done.
Ms. Puckett testified that, when Respondent returned to the portable, she confronted him and asked him if he realized he could lose his job over two tapes. Mr. Stephans remembered her statement to Respondent, but recalled that she made it as Respondent was exiting the portable with the tapes and bags.
Ms. Puckett testified that Respondent answered that she had given him the tapes. Ms. Puckett stated that she adamantly denied that she had given the tapes to Respondent, who then stated that Ms. Puckett’s Title I program had so much money it would never miss two tapes.
Mr. Stephans testified that about ten minutes after returning to the portable, Respondent took at least two more tapes and walked out of the portable with them. Mr. Stephans stated that Ms. Puckett was working with her back turned to the two men, and thus he could not be sure that Ms. Puckett witnessed this second incident. Ms. Puckett confirmed that she saw only one such incident.
Mr. Stephans testified that during a break from work in the portable, Respondent smoked a cigarette on the school grounds. Respondent admitted to smoking the cigarette.
Shortly before 3 p.m., Mr. Stephans and Respondent packed their materials into the School Board van they had driven to the site, and returned to Maintenance headquarters to clock
out for the day. Mr. Stephans testified that he saw a plastic grocery bag between the two front seats of the van, and he could see that the tapes were in the bag.
Mr. Stephans testified that Respondent drove the van, and that Respondent mentioned a need for caution when driving into the Maintenance parking lot to avoid the security cameras. Respondent parked the van and each man carried his own tools to his own car, walking in opposite directions. Mr. Stephans testified that when he returned to the van after stowing his tools in his car, the plastic grocery bag containing the tapes was no longer in the van.
Mr. Stephans testified that he told no one about the incident that afternoon because he thought that Respondent would think about what he had done and correct the situation.
The next morning, November 24, 1998, Respondent and Mr. Stephans were again teamed as partners. Mr. Stephans testified that Respondent was concerned and on edge, worried about getting into trouble over what he had done. Mr. Stephans
advised him to return the tapes and apologize to Ms. Puckett, and thus perhaps receive a lesser punishment for the theft.
Mr. Stephans testified that Respondent answered that he could not return the tapes, as that would constitute an admission that he had taken them. The two men drove to another campus to work and did not discuss the situation again that day.
Mr. Stephans did not discuss the matter with anyone else on November 24, 1998.
On November 25, 1998, Mr. Stephans and Respondent had another conversation about the tapes. Respondent again voiced his concerns, Mr. Stephans again advised Respondent to return the tapes, and Respondent again declined the advice. Mr. Stephans testified that at this point, he became worried that he might be implicated in the matter if he maintained his silence about Respondent’s actions.
Mr. Stephans wanted to discuss the matter with his supervisor, Joe Vaughn, but Mr. Vaughn was not at work that day. Mr. Stephans decided to talk the matter over with another carpenter, Joe Murphy. Mr. Murphy had been Mr. Stephans’ first partner when the latter began with the School Board, and
Mr. Stephans still considered him a friend and confidant.
Mr. Murphy told Mr. Stephans that, because Mr. Stephans witnessed the incident, he could be found just as culpable as Respondent if he failed to come forward. Mr. Murphy advised
Mr. Stephans that he had no choice but to report Respondent’s actions. Mr. Stephans asked Mr. Murphy to accompany him to the office of Donald Easterly, assistant director of maintenance and supervisor to the absent Mr. Vaughn.
The two men went to Mr. Easterly’s office and told him the story. Mr. Easterly told them that Rick Gutknecht, the head of Facilities Management, was out that day but that he would
discuss the matter with Mr. Gutknecht when he returned. After the men left his office, Mr. Easterly called Marilyn Strong, director of personnel for the School Board, who advised him to call the principal of Tropic Isles and confirm that items were missing from the portable.
Cecelia Mattingly was the principal of Tropic Isles. Mr. Easterly phoned her and asked if anything had been reported missing at the school. Ms. Mattingly checked and confirmed that nothing was missing, though she did not check the Family Learning Center portable. Mr. Easterly subsequently suggested she check that portable. Ms. Mattingly spoke with the full-time Title I employee assigned there. The employee confirmed that tapes appeared to be missing from the neat stacks on the television stand. The employee estimated that it would take six tapes to fill the space in the stack. Ms. Mattingly sent Mr. Easterly an electronic mail message confirming that tapes were missing.
After leaving Mr. Easterly’s office, Mr. Stephans returned to work, partnered again with Respondent. They drove together to Tropic Isles to continue work on the bulletin boards. Mr. Stephans testified that when they arrived at Tropic Isles, the building supervisor angrily confronted them, asking if they knew anything about tapes missing from the Family Learning Center. Respondent denied any knowledge about tapes.
Mr. Stephans remained silent.
Mr. Stephans testified that after the building supervisor walked away, Respondent told him to get in the van. Respondent drove the van to Suncoast in search of Ms. Puckett. Mr. Stephans stated that during the drive to Suncoast, Respondent poked him in the chest with his finger and said that if
Mr. Stephans turned him in for stealing the tapes, Respondent would say either that Mr. Stephans stole them or that Ms. Puckett gave him the tapes. Mr. Stephans characterized Respondent as "in a frenzy."
Mr. Stephans testified that Respondent searched the Suncoast campus for Ms. Puckett. Respondent went to the portable where she worked, but it was locked. Respondent persuaded the custodian to open the portable so that he could attempt to find Ms. Puckett’s home phone number inside. Respondent went inside while Mr. Stephans waited outside. Respondent soon emerged, empty-handed. Mr. Stephans testified that someone on the campus told them that Ms. Puckett had gone for the day. Respondent told Mr. Stephans he could get her phone number from someone at Maintenance who knew Ms. Puckett.
Mr. Stephans testified that he and Respondent returned to Maintenance at about 3 p.m., and Respondent began asking around for Ms. Puckett’s phone number. Mr. Stephans went to Mr. Easterly’s office and briefed him on the events of the day, including Respondent’s threat to blame Mr. Stephans or
Ms. Puckett if the incident were reported.
Ms. Puckett heard from a Suncoast employee that Respondent had been looking for her, saying he had something very important to discuss with her. That evening, Ms. Puckett tried to find Respondent’s phone number. Failing that, she found Mr. Stephans’ number in the phone book and called him.
Ms. Puckett testified that she became frustrated because Mr. Stephans would not tell her why Respondent was urgently trying to reach her. She refused to give Mr. Stephans her phone number because she did not want Respondent to know it. Mr. Stephans testified that he did not want to discuss the matter with Ms. Puckett because he wanted to leave the matter in
Mr. Easterly’s office and not become further involved. He told Ms. Puckett about the confrontation with the Tropic Isles building supervisor, but not about his conversations that day with either Respondent or Mr. Easterly. Mr. Stephans gave Respondent’s home phone number to Ms. Puckett so that she could speak directly to Respondent.
Ms. Puckett phoned Respondent, who also told her about the confrontation with the building supervisor, and that he had said to the supervisor that he knew nothing about the tapes.
Ms. Puckett testified that Respondent told her that if he knew nothing about the tapes, and Mr. Stephans knew nothing about the tapes, and she knew nothing about the tapes, then they would all have the same story.
Ms. Puckett testified that Respondent asked her if she was recording their conversation. She said she wasn’t. Respondent again asserted that Ms. Puckett had given him the tapes. Ms. Puckett again stated that she did no such thing. Respondent told her that he could lie about her and about
Mr. Stephans, and suggested she do the same about what he had done. Ms. Puckett responded that she had no reason to lie.
The next day, November 26, 1998, was Thanksgiving Day. Nothing of relevance to this case occurred over the Thanksgiving weekend. Both Mr. Stephans and Ms. Puckett testified that their most recent conversations with Respondent made them worried and apprehensive over the weekend, because they both feared that Respondent would attempt to convince school authorities that one or both of them stole the tapes.
Ms. Puckett testified that she was still scared on the following Monday, November 30, 1998. She hesitated to come forward because she was afraid she would not be believed.
On that morning, Mr. Easterly told Mr. Stephans to report to Mr. Gutknecht. Mr. Stephans reported to
Mr. Gutknecht’s office and told him his version of events.
Mr. Gutknecht requested that Mr. Stephans place his statement in writing. Mr. Stephans resisted producing a written statement.
Mr. Stephans testified that, before writing a statement, he wanted assurances that he would not get into trouble. He testified that Mr. Gutknecht became angry at his
refusal to write a statement, and refused to make any promises that he would not suspend either or both Mr. Stephans and Respondent.
Mr. Gutknecht essentially confirmed Mr. Stephans’ testimony on this episode. Mr. Gutknecht observed that Mr. Stephans believed his obligation was over once he had
informed management of the situation. Mr. Gutknecht testified that he told Mr. Stephans that the investigation would go forward whether or not Mr. Stephans gave a written statement.
Mr. Gutknecht told Mr. Stephans that as of that moment, all he had were fingers pointing both ways regarding the tapes.
Mr. Gutknecht would not rule out any course of action, depending on the facts revealed by his investigation.
Mr. Stephans implored Mr. Easterly to intervene, but Mr. Easterly told Mr. Stephans that he should do the right thing and be honest about what happened. Mr. Stephans also talked to Mr. Vaughn, who told him that Mr. Gutknecht would eventually learn the facts and that Mr. Stephans would be wise to go along and provide a written statement. Mr. Vaughn agreed to write the statement at Mr. Stephans’ dictation, because of Mr. Stephans’ poor handwriting. Both Mr. Vaughn and Mr. Stephans testified that the latter was the sole author of the statement, and that Mr. Vaughn simply wrote down what he was told by Mr. Stephans.
Three drafts of the statement were written. Messrs. Gutknecht, Stephans, and Vaughn all confirmed that when the first
two drafts were discussed, additional information came up that caused Mr. Gutknecht to tell Mr. Stephans to rewrite the statements to include that information. Only the final draft was presented in evidence.
On Tuesday, December 1, 1998, Ms. Puckett came forward and told her immediate supervisor about the events at Tropic Isles. The supervisor advised her to wait and see what Facilities Management was going to do about the situation, because the supervisor was aware that Respondent’s supervisor knew about the incident.
On December 2, 1998, Ms. Puckett took it upon herself to call Mr. Vaughn, mainly to complain about Respondent’s trying to get her home phone number and having himself let into her office at Suncoast. Mr. Vaughn transferred the call to
Mr. Gutknecht, who advised her to call him immediately if Respondent contacted her. Ms. Puckett testified that during the conversation she told Mr. Gutknecht that she had seen Respondent take some tapes out of the portable at Tropic Isles.
Soon thereafter, Ms. Puckett went to Mr. Gutknecht’s office to meet him in person and give him the details of events. Ms. Puckett did not produce a written statement until she was contacted by Gail Williams, the School Board’s investigator.
Ms. Puckett’s written statement was admitted into evidence.
Respondent testified on his own behalf. He agreed that on November 23, 1998, he and Mr. Stephans were working outside at
Tropic Isles and that Ms. Puckett invited them to work in the Family Learning Center portable. Respondent disputed the testimony that he loafed while Mr. Stephans worked, stating that he worked the entire time they were in the portable except during their afternoon break.
Respondent admitted to admiring the audio-visual equipment in the portable, and testified that there were videotapes in white cardboard sleeves stacked on the video stand. Respondent denied taking any of the tapes or holiday bags in the portable and said he had no idea what happened to them.
Respondent testified that, during their break,
Mr. Stephans initiated a conversation with Ms. Puckett about the movie, "Armageddon." Mr. Stephans had just bought the tape on sale at Wal-Mart, and offered to lend her the tape or even make a copy of it for her. Ms. Puckett confirmed that this conversation occurred, though she could not definitely recall Mr. Stephans offering to copy the tape.
However, Respondent also testified that he found the box full of holiday bags, took one of the bags from the box, and, as a joke, put two of the videotapes in the bag and handed it to Ms. Puckett, saying that now she had the blank tapes to copy "Armageddon." Respondent testified that Ms. Puckett and he laughed at his joke. Respondent stated this was the only time he placed his hands on the tapes or the bags.
Having denied taking the tapes and bags, Respondent obviously also denied much of the testimony by Mr. Stephans and Ms. Puckett as to subsequent events. He agreed that the building supervisor at Tropic Isles approached them the next day about missing items from the portable. However, he testified that he and Mr. Stephans mutually agreed to drive to Suncoast and find Ms. Puckett, to find out what was going on. Respondent testified that he and Mr. Stephans made inquiries at Suncoast about her whereabouts and home phone number.
Respondent agreed that he spoke to both Mr. Stephans and Ms. Puckett on the phone that evening. He testified that Mr. Stephans called him first, to tell him that Ms. Puckett had just called and was scared and nervous about the tapes. Respondent testified that Mr. Stephans stated, "If I know nothing, and you know nothing, then nobody knows nothing."
Respondent stated that he really didn’t know anything, and didn’t want to know anything. Respondent testified that he was concerned, because he had been in the portable and had his hands on the tapes. In his written statement, Respondent admitted telling Ms. Puckett that they should all say they knew nothing, but also stated that he was merely repeating Mr. Stephans’ statement to him.
Respondent testified that he did not know why
Mr. Stephans and Ms. Puckett would accuse him of theft. He stated that it made no sense to steal with people there watching
him, given all the opportunities he’d had over the years to steal unseen. He noted that he has keys to all the portables in the school system, that he has often been left alone to do work in classrooms, yet until now has never been credibly accused of theft.
Several witnesses testified as to Respondent’s rocky relationships with fellow workers, including Mr. Stephans. Several years prior to the events of this case, Respondent blew the whistle on theft of materials in Maintenance, which ultimately resulted in the forced retirement of one employee. Since that time, Respondent has had a reputation as a "snitch" among some of his fellow workers. Respondent testified that there were strains in his working relationship with Mr. Stephans due to the ostracism Mr. Stephans felt from being partnered with Respondent.
Respondent also encountered problems due to the fact that he was promoted to carpenter despite a lack of training in the field, but used his seniority to avoid certain jobs and resist taking orders from his more skilled equals. Respondent’s attitude led to resentment from fellow workers.
Two years prior to these events, Respondent complained to his union about a policy enacted by Mr. Gutknecht regarding parking spaces at the Maintenance facility. Mr. Gutknecht made it clear to Respondent that he did not appreciate Respondent’s
taking the complaint outside of the department before discussing it with him.
Respondent testified that Mr. Gutknecht would not discuss the Tropic Isles incident with him or ask him about the written statement he submitted on December 3, 1998. Respondent stated that he learned Mr. Gutknecht was investigating the matter from a co-worker, not from Mr. Gutknecht himself.
In summary, Respondent attempted to demonstrate that Mr. Gutknecht and those working for him had reason to seize upon these allegations as a pretext for firing him, despite the inconsistencies in the stories told by his two accusers and despite the fact that no accounting was ever made to demonstrate that any tapes were in fact missing from the Family Learning Center portable at Tropic Isles.
There is no question that Mr. Stephans’ and
Ms. Puckett’s testimony varied on some points. Mr. Stephans recalled that the tapes had white cardboard covers, while
Ms. Puckett testified they had no covers. Mr. Easterly recalled that Mr. Stephans told him that Respondent took three tapes on each trip out of the portable, and that Mr. Stephans made no mention of holiday bags. Ms. Williams’ investigative report states that Mr. Stephans told her that Respondent took two tapes on each trip, and that Mr. Stephans discussed the theft of the bags. In his testimony at the hearing, Mr. Stephans could not say definitely how many tapes Respondent took.
However, it is found that the testimony of Ms. Puckett and Mr. Stephans was essentially consistent and credible, considering that their statements were made at various times over a period of more than one year. The slight variations in details establishes that Ms. Puckett and Mr. Stephans plainly did not collaborate to concoct a story, but were providing their own honest, independent recollections of events.
Respondent’s version of events was less credible than the version related by Ms. Puckett and Mr. Stephans. Respondent’s story regarding "Armageddon" appears less an honest recollection than an effort to anticipate an investigation and explain why his fingerprints were on the items in the portable.
It also strains credulity that Respondent and
Mr. Stephans would set off on a frantic search for Ms. Puckett at Suncoast simply out of curiosity, without any reason to believe Ms. Puckett knew more about the situation than they did.
Mr. Stephans’ version of the trip to Suncoast is inherently more credible.
Respondent is also correct that no inventory was taken of the tapes in the Family Learning Center portable to establish how many tapes were missing. However, Mr. Stephans and
Ms. Puckett both testified that the tapes were neatly stacked in even rows, filling the video stand. Missing tapes would create an obvious space in the stacks, and that is precisely what the Title I employee reported to Ms. Mattingly, the principal of
Tropic Isles. Given these facts, along with two eyewitnesses to the theft, there was no need to take an inventory to establish that Respondent took some number of tapes.
It is not necessary to address Respondent’s argument that it made no sense for him to steal tapes and bags in front of witnesses, because the facts established that he did steal tapes and bags in front of witnesses. Respondent contends that over his 17 years as a School Board employee, he has had access to any number of buildings and all manner of opportunities to steal property unseen. Surely, he would not jeopardize his job by stealing such trifling items in front of two fellow employees.
It would be as plausible to contend that the trifling nature of the items led Respondent to believe that no one would seriously pursue the matter. Ms. Puckett testified that Respondent nonchalantly told her that the tapes would not be missed. In any event, the facts established that Respondent took the items. His rationale or motive for doing so is irrelevant.
It is also not necessary to address Respondent’s theory that Mr. Gutknecht and others disliked Respondent and wanted a reason to get rid of him. Even if this theory were accepted, Respondent’s own actions gave his perceived opponents sufficient justification to act against him.
Finally, Respondent argues that he is being singled out for harsher punishment than his offense merits. He argues that the School Board has retained employees who admitted taking
School Board property and paid restitution. This argument was borne out by the testimony of John Hennebery, the director of employee relations for the School Board. However, in this case, Respondent has neither admitted the theft nor offered restitution. Thus, the cited examples of more lenient treatment are inapplicable.
In conclusion, it is found that Respondent stole School Board property, attempted to coerce witnesses to cover up the theft, and continued to deny the theft up to and including the final hearing in this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner has the burden of establishing by a preponderance of the evidence that the actions of Respondent warrant his dismissal or lesser discipline. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
Respondent is an educational support employee as defined in Section 228.041(38), Florida Statutes. The Superintendent is authorized to seek dismissal of an educational support employee pursuant to Section 231.3605, Florida Statutes. Dismissal must be based on just cause, pursuant to section 7.094
of the collective bargaining agreement between the School Board and the Support Personnel Association of Lee County.
Respondent is charged with taking videotapes without permission and smoking on school grounds. Respondent correctly points out that the Petition does not allege theft of the holiday bags, and that he therefore is not subject to discipline for their removal from the portable. Disciplinary action may be based only upon facts specifically alleged in the Petition. See MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation,
458 So. 2d 842 (Fla. 2d DCA 1984). Aside from its failure to allege theft of the bags, the Petition sufficiently sets forth the specific facts upon which Respondent’s proposed discipline is based.
Respondent admitted the allegation of smoking on school grounds, and correctly argues that School Board Policy 2.5 provides for progressive discipline for violations of the "tobacco-free campus" policy. Because this was a first offense, Respondent is subject to a verbal warning.
It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent stole videotapes from the Family Learning Center portable at Tropic Isles. Theft of School Board property constitutes just cause for disciplinary action, including dismissal.
The evidence demonstrated that the School Board has imposed lesser discipline for theft, but only where the perpetrator admitted the theft and made restitution. Respondent has neither admitted the theft nor made restitution. Therefore, dismissal is warranted by the facts of this case. This conclusion obviates the need for a verbal warning regarding the admitted violation of the "tobacco-free campus" policy.
Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed theft of School Board property, and ordering that Respondent be dismissed from employment with the Lee County School Board.
DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2000.
COPIES FURNISHED:
Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue
Fort Myers, Florida 33901-3988
Robert J. Coleman, Esquire Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089
Dr. Bruce Harter, Superintendent School Board of Lee County
2055 Central Avenue
Fort Myers, Florida 33901-3916
Honorable Tom Gallagher Commissioner of Education Department of Education
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
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. 21, 2004 | Final Order filed. |
| May 26, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held January 18 and 19, 2000. |
| Feb. 17, 2000 | Respondent`s Proposed Findings of Fact and Conclusions of Law filed. |
| Feb. 16, 2000 | Amended Joint Motion for Extension of Time to File Proposed Findings of Fact and Conclusions of Law (filed via facsimile). |
| Feb. 07, 2000 | Joint Motion for Extension of Time to file Proposed Findings of Fact and Conclusions of Law (filed via facsimile). |
| Jan. 28, 2000 | Joint Motion for Extension of Time to File Proposed Findings of Fact and Conclusions of Law (filed via facsimile). |
| Jan. 18, 2000 | CASE STATUS: Hearing Held. |
| Nov. 23, 1999 | Notice of Hearing sent out. (hearing set for January 18, 2000; 9:00 a.m.; Fort Myers, FL) |
| Nov. 17, 1999 | Joint Motion for Rescheduling of Hearing (filed via facsimile). |
| Oct. 27, 1999 | Letter to Judge Stevenson form Victor Arias (re; hearing dates) (filed via facsimile). |
| Oct. 15, 1999 | Hearing Partially Held, continued to date not certain. |
| Oct. 08, 1999 | Amended Notice of Hearing sent out. (hearing set for October 15, 1999; 9:00 a.m.; Fort Myers, FL) |
| Oct. 08, 1999 | Respondent`s Supplement to Witness List on Prehearing Stipulation (filed via facsimile). |
| Oct. 06, 1999 | Joint Prehearing Statement (filed via facsimile). |
| Sep. 23, 1999 | Deposition of Gary David Stephens ; Deposition of Annette Puckett filed. |
| Sep. 23, 1999 | (Respondent) Notice of Taking Depositions filed. |
| Jul. 22, 1999 | (Respondent) Notice of Taking Deposition (filed via facsimile). |
| Jun. 14, 1999 | Respondent`s Request for Production of Documents; Notice of Service of Respondent`s Interrogatories to Petitioner filed. |
| Jun. 07, 1999 | Order of Pre-hearing Instructions sent out. |
| Jun. 07, 1999 | Notice of Hearing sent out. (hearing set for October 15, 1999; 9:00 a.m.; Fort Myers, FL) |
| May 26, 1999 | Joint Response to Hearing Officer`s Initial Order (filed via facsimile). |
| May 19, 1999 | Initial Order issued. |
| May 17, 1999 | Agency Referral Letter; Agency Action Letter; Request for Formal Hearing (letter); Petition for Suspension Without Pay and Benefits Pending Termination of Employment; Supportive Documents filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 2000 | Agency Final Order | |
| May 26, 2000 | Recommended Order | Petitioner demonstrated by a preponderance of the evidence that Respondent`s dismissal as an educational support employee was justified because Respondent stole school property. |
