STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. )
)
EMMA WALLACE, )
)
Respondent. )
Case No. 00-4392
)
RECOMMENDED ORDER
The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter in Miami, Florida, on January 8, 2001. The hearing was adjourned on January 9, 2001.
APPEARANCES
For Petitioner: Pamela Y. Chance, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Jesse J. McCrary, Jr., Esquire
McCrary & Mosley
2800 Biscayne Boulevard, Ninth Floor Miami, Florida 33137
STATEMENT OF THE ISSUE
The issue in this case is whether a district school board is entitled to terminate for just cause the employment of a non- instructional employee who has been accused of misconduct in
office, gross insubordination, and conduct unbecoming a school
board employee.
PRELIMINARY STATEMENT
At its regular meeting on October 11, 2000, Petitioner Miami-Dade County School Board (the "Board") suspended Respondent Emma Wallace ("Wallace") without pay from her position as a Senior Secretary and initiated dismissal proceedings against her. In a letter to Wallace dated October 12, 2000, which notified her of the Board's decision, Deputy Superintendent Nelson E. Diaz recited the reasons therefor as follows: "just cause, including, but not limited to, misconduct in office, gross insubordination, conduct unbecoming a school board employee, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties." By letter dated October 20, 2000, Wallace's legal counsel timely
requested a formal hearing, and soon thereafter the matter was referred to the Division of Administrative Hearings for further proceedings.
The case was assigned to the undersigned Administrative Law Judge, who issued a Notice of Hearing on November 1, 2000, informing the parties that the final hearing would commence on January 8, 2001. On November 22, 2000, the Board filed and served a Notice of Specific Charges in which it formally accused Wallace of Misconduct in Office (Count I), Gross
Insubordination/Willful Neglect of Duties (Count II), and Conduct Unbecoming a School Board Employee (Count III) based on the following material allegations:
On or about August 30, 1999, Respondent notified her office that she was summoned to serve jury duty in the United States District Court beginning August 30, 1999, for a possible two-week period. On the following day, Respondent was released from jury duty; however, she did not report to work for the next four days (on or about August 31 through September 3, 1999) and was charged with unauthorized leave of absence.
On or about September 16, 1999, Respondent attempted to take Petitioner's typing test using the name "Alicia Gilliam." She was directed to never again return to the typing center.
On or about February 23, 2000, Respondent returned to Petitioner's typing center and signed in as Tranee Wallace, i.e., her daughter's name, and produced identification as Tranee Wallace.
At the final hearing, the Board called the following witnesses, all of whom are employed in the Miami-Dade Public School System: Detective Niurka Echezabal, Miami-Dade School Police Department; Mr. Henry Horstmann, Executive Director, Division of Non-Instructional Staffing; Ms. Mariana Pena, Personnel Clerical Test Specialist; Ms. Diamela Oakley, Instructional Supervisor, Best Technology Education;
Ms. Patricia Freeman, Director, Division of Business Development and Assistance; Dr. Rose Barefield-Cox, Associate
Superintendent, Bureau of Procurement and Material Management; Dr. John Goonen, Administrative Director, Adult Education Work Force Development; and Ms. Virginia Bradford, Executive Director, Office of Professional Standards. In addition to these witnesses, the Board offered Petitioner's Exhibits 1, 1A, 2-4, 8, 10-21, 23, 26-28, 33-35, and 37-41 into evidence, all of which were admitted.
Wallace offered no evidence at hearing.
The Board timely filed a proposed recommended order which the undersigned has considered carefully. Wallace did not submit any post-hearing papers.
FINDINGS OF FACT
The evidence presented at final hearing established the facts that follow.
From December 1989 until the Board suspended her without pay effective October 11, 2000, Wallace worked in the Miami-Dade Public School System as a non-instructional employee. She held various clerical and secretarial positions in several different offices during that period. At the time of her suspension, Wallace was a Senior Secretary in the Office of Applied Technology, Adult, and Career Education.
Wallace is a member of the United Teachers of Dade ("Union"). She is covered by the collective bargaining agreement between the Union and the Miami-Dade County Public
Schools that took effect on July 1, 1999, and operates until June 30, 2002.
Article XXI, Section 3, of the collective bargaining agreement sets forth the "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel" and contains the following provision:
D. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.
Pet. Exh. 1A.
Although capable, Wallace has been a marginal employee whose service in the school system has been marked by documented deficiencies and supervisors' complaints. One former boss succinctly described her as being able "to do an excellent job[,] but . . . defiant, . . . disrespectful, . . . irresponsible, . . . [and] unreliable." Transcript of Final Hearing ("T-") 253. In fairness, this person's experience with Wallace ended in December 1995, yet others for whom Wallace worked more recently echoed her sentiments.
Indeed, the Board presented extensive evidence of Wallace's negative employment history, establishing persuasively that over the years she had committed numerous infractions such as arriving late to work, taking long lunches, disobeying instructions, failing timely to complete assignments, and spending excessive time on personal telephone conversations. However, these incidents — many of which happened years ago and long before the Board decided to dismiss Wallace — are too remote, as a factual matter, to bear on the charges against her.
Further, Wallace received her last annual evaluation at the end of the 1998-99 school year.1 Her evaluator was Mr. Dale Keith, the person to whom Wallace then directly reported.
Signed by Mr. Keith on July 14, 1999, the evaluation contained his ratings of Wallace, as either satisfactory or unsatisfactory, in seven performance categories: A. Knowledge;
B. Quality of Work; C. Efficiency; D. Interpersonal Skills;
E. Dependability and Judgment; F. Attendance and Punctuality; and G. Adherence to Rules and Procedures. Mr. Keith rated Wallace satisfactory in every category and assigned her an Overall Performance Rating of satisfactory. He did not prescribe any "[r]equired actions toward remediation of deficiency" but made several "suggestions" for improvement in the upcoming 1999-2000 school year.2
Thus, as this evaluation demonstrates, despite past problems, by July 1999 Wallace had remedied her deficiencies to a degree that her job was not in immediate jeopardy. After July 1999, however, Wallace wound up in work-related trouble on three specific occasions, the circumstances of which are pertinent to the present charges.
The Jury Duty Incident (August-September 1999)
After receiving a summons requiring her to be available for jury duty in federal court during a two-week period beginning on Monday, August 30, 1999, Wallace notified
Mr. Keith, in accordance with office procedures, that she might be absent from work as a result.
Wallace did not report to work on August 30, 1999, or any following day that week. She also failed to keep Mr. Keith apprised of her whereabouts. On Friday, September 3, having heard nothing from Wallace, Mr. Keith contacted the court clerk's office, which sent him, by facsimile transmission, a Certificate of Juror's Attendance attesting to the fact that Wallace had attended court proceedings in person on August 30, 1999 — but not thereafter.
On Tuesday, September 7, 1999 (Monday of that week was Labor Day), Mr. Keith called Wallace to find out what was going on. The upshot of this discussion was that Mr. Keith discovered Wallace had not been needed in court from Tuesday through Friday
of the preceding week, but apparently she was serving on a jury during this second week of her eligibility. Mr. Keith told her to call in daily, and she did so after that.
Upon Wallace's return to work, she was disciplined for having taken unauthorized leave on the days when she was neither in court nor in the office. As punishment, the Board docked Wallace's pay by four days' wages, and the matter was closed.
The First Typing Test Incident (September 1999)
Shortly before 9:00 a.m. on September 16, 1999, Wallace entered the Division of Non-Instructional Staffing's testing lab. Once inside, she recorded her name, arrival time, and purpose — to take a typing skills test — in a Receptionist Log located in the lobby.
The typing skills test that Wallace desired to take is used to screen potential applicants for clerical and secretarial jobs. A tool that measures typing speed, the test is administered to persons not presently employed in the Miami-Dade Public Schools who are interested in applying for clerical positions in the system, as well as to existing employees who, by improving their previous scores, may become eligible to apply for higher-level jobs.
A person who is not already employed in the school system must achieve a score that meets the minimum requirement for some position to become eligible to submit an application.
A prospective applicant will not be provided an application until after he or she has passed the typing skills test by earning a minimally qualifying score. There are additional examinations that must be taken later in the application process, but none is at issue here.
Because it is beneficial to earn a score that will qualify for as many positions as possible, existing employees routinely re-take the typing skills test in hopes of expanding their opportunities for advancement. The fastest typing speed required for any clerical or secretarial job, however, is 60 words per minute ("wpm"). Therefore, once an individual attains a score of 60 wpm or better, that person can achieve no additional competitive advantage with a higher score and need not be tested again. Wallace had attained a score of 60 wpm in 1994.
Although Wallace appears to have had no practical reason to re-take the typing skills test in September 1999, she was not at the time under direct orders forbidding her from doing so, and there were no specific written rules or policies proscribing her action.3
An employee named Mariana Pena was responsible for administering the typing skills test. That September morning when Wallace appeared, Ms. Pena called the names of the persons who had signed the Receptionist Log, collected their picture
identification cards for verification, brought them to the testing area, and gave instructions to sit down at one of the computer terminals and sign in by name and Social Security number.
Wallace went into the testing area accompanied by another woman with whom she appeared to be friendly. Consistent with their apparent familiarity, the two sat next to each other. Ms. Pena did not happen to see the computer screen showing the name and Social Security number that Wallace entered when she signed in.
Persons taking the typing skills test are provided a piece of paper and instructed to type the text contained on it. The computer determines each person's proficiency and prints the results, assigning a score to each individual, all of whom are identified on the score sheet by name and Social Security number. Each person is given two chances to perform, and his or her lower score is discarded. Ordinarily, the persons being tested proceed with their respective second attempts as the results print out from their first ones.
On September 16, 1999, the results from the first round of testing were anomalous in that Wallace's putative friend had managed to post two scores while Wallace herself had generated no score. One possible explanation for this unusual outcome was that Wallace had taken the test under her friend's
name, by prior arrangement, while the latter had failed to perform her part in the plot by pretending to be Wallace. There was no direct proof, however, that the two had conspired to cheat in this manner.
Suspecting that a scheme was afoot, Ms. Pena kept a watchful eye on the pair during the second round of testing. This time, the results were normal, with a score assigned to each test taker.
At the conclusion of the testing process, Ms. Pena asked Wallace and her apparent friend to remain behind.
Ms. Pena and her immediate supervisor, Arlene Diaz, questioned the two and ascertained that both were school system employees. In due course, the details of the incident were provided to Mr. Henry Horstmann, an Executive Director in the Division of Non-Instructional Staffing.
Upon learning what had transpired, Mr. Horstmann contacted Wallace by telephone and explicitly directed her to stay away from the testing lab. In addition, Mr. Horstmann ordered Wallace not to take the typing skills test again without obtaining his permission in advance. Separately, he instructed Ms. Pena and Ms. Diaz that Wallace was not to be given the typing test, and that they must notify him immediately if she attempted to take it in the future.
Mr. Horstmann's directives to Wallace were unambiguous and, in view of the circumstances, entirely reasonable in nature.4 He unquestionably had the authority to issue them.
The Second Typing Test Incident (February 2000)
On February 23, 2000, Wallace returned to the testing lab for the purpose of taking the typing skills test. This time, she signed the Receptionist Log as "Tranee Wallace." Tranee Wallace is the name of Wallace's daughter.
After Ms. Pena called the roll, Wallace presented an identification card that bore Tranee's name and picture. When Ms. Pena saw the photograph, she could tell that the identification was not Wallace's. Also, seeing the name "Wallace" on the card jogged her memory of the September 1999 incident, causing her to recognize Wallace.
As instructed, Ms. Pena immediately notified Mr. Horstmann that Wallace was in the testing lab.
Mr. Horstmann walked to the testing lab and removed Wallace, escorting her back to his office. There, Mr. Horstmann examined the identification that Wallace had presented to Ms. Pena and observed that it belonged to Wallace's daughter Tranee.
Mr. Horstmann explained to Wallace that he was going to refer the matter to the Office of Professional Standards for investigation. He again directed Wallace not to return to the testing lab. Mr. Horstmann also notified Dr. John Goonen, the
Administrative Director, Adult Education Work Force Development, in whose department Wallace was working, about the situation.
Having heard from Mr. Horstmann, the District Director of the Office of Professional Standards approved an investigation into the February 2000 incident at the typing lab. The case was assigned to Detective Niurka Echezebal of the
Miami-Dade County School Police Department.
On March 20, 2000, the detective interviewed Wallace in the presence of a Union representative. During the interview Wallace stated that she had disobeyed Mr. Horstmann's earlier directive to stay away from the testing lab because she was upset at having been forbidden to take the typing skills test again. Wallace admitted that she had attempted to take the test using her daughter's name and identification. Wallace denied that she was trying to help Tranee become eligible for employment in the school system. She claimed that she merely had wanted to practice her typing speed.
The investigation, which concluded on March 29, 2000, resulted in a determination that Wallace had committed the offense of fraud. As a result, she was directed to appear at a conference-for-the-record in the Office of Professional Standards, which took place as scheduled on May 9, 2000. At that meeting, Wallace again denied having attempted to take the typing skills test for her daughter. As before, Wallace
maintained that she had desired only to discover how well she would fare on the test.
About five months later, on October 11, 2000, the Board made the decision that gave rise to these proceedings, suspending Wallace without pay, with the intent to terminate her
employment.
Ultimate Factual Determinations
Wallace did not commit the offense of gross insubordination or willful neglect of duties, as defined in Rule 6B-4.009(4), Florida Administrative Code — not, at least, after July 1999. Her failure during the week of August 30, 1999, to report for work under the pretense of jury service was not in defiance of a direct order, and in any event Wallace was punished appropriately for that misdeed. Similarly, Wallace’s first bit of trouble in the typing lab, which took place on September 16, 1999, did not stem from an intentional refusal to obey a direct order; too, she was properly disciplined for her involvement in that event.
In contrast, when Wallace attempted to take the typing skills test on February 23, 2000, she intentionally violated a direct and reasonable order, given by Mr. Horstmann with proper authority, that she not return to the testing lab for the purpose of taking the typing skills test without securing his permission in advance. This single, flagrant act of
insubordination, however, does not amount to "constant or continuing" disobedience, which the rule requires be shown to justify termination of employment.
Wallace’s participation in the first typing test incident did not constitute misconduct in office. Although the Board has argued here that Wallace was engaged in a fraud that September day, the evidence regarding her intent was inconclusive — as Wallace’s superiors concluded at the time of the event. Whether Wallace was an innocent victim of someone else’s mistake or wrongdoing, made a mistake of her own, played a prank, or had something more malign in mind is hard to say. Mr. Horstmann’s pragmatic punishment — ordering Wallace not to return to the testing lab — was a sensible resolution of the affair.
Wallace is guilty of the offense of misconduct in office as a consequence of the second typing test incident. Her attempt to take the typing skills test while knowingly posing as her daughter was made with an intent to deceive the Board and hence was tantamount to fraud. Wallace's explanation that she wanted to take the test for her own benefit rather than her daughter's is not credible. The trier refuses to believe that Wallace would have taken so large a risk (loss of job) for so little gain (secret satisfaction at performing well on an in- house typing skills test?) when a more likely motive is readily
apparent. The circumstances and common sense suggest that Wallace — whose typing abilities qualified her for any clerical or secretarial position in the school system — intended to take the test for her daughter so that Tranee could apply for some job, at least, and the widest variety of jobs at best.
Accordingly, when Wallace wrote her daughter's name in the Receptionist Log, she knowingly misrepresented, on a document in connection with professional activities, a material fact — her identity — with the intent that Ms. Pena (or whoever was about to administer the test) would rely on the false statement and allow her to take the test as Tranee. Continuing with the deception, Wallace failed to maintain honesty in her professional dealings when she handed Tranee's identification card to Ms. Pena knowing that the card misrepresented Wallace's true identity and with the intent that Ms. Pena would believe Wallace to be Tranee.
Wallace's deceitful conduct on the occasion of the second typing test incident violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), as well as Rule 6B- 1.006(5)(a)(employee shall maintain honesty in all professional dealings).5
Wallace's deceitful conduct also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve highest degree of ethical conduct) and School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and affirmatively requires employees to conduct themselves so as to reflect credit on themselves and the school system. These latter two violations, it should be mentioned, are derivative of the first two described, inasmuch as an act of fraud or dishonesty necessarily misses the "highest degree of ethical conduct" mark and always fails to reflect credit on the perpetrator.
There was little direct evidence that Wallace's deceitful conduct actually impaired her effectiveness in the school system — which is a necessary factual component of the offense of misconduct in office. Mr. Keith's testimony on the issue of ineffectiveness was largely hypothetical and somewhat ambivalent. T-283-84. Dr. Goonen's testimony on the point was conclusory, T-313-15, as was Ms. Virginia Bradford's, T-346.
Dr. Goonen and Mr. Keith argued that Wallace could not be trusted to handle sensitive assignments, such as those involving information about other employees' rates of pay, but this contention seemed contrived and lacked force. Wallace's secretarial duties did not demand a heightened degree of trustworthiness, honesty, judgment, or discretion above and
beyond that which any reasonable employer would expect of a rank-and-file employee.6
Moreover, and more important, there was no evidence that Wallace's responsibilities were restricted in any way as a result of the misconduct in question. Indeed, it is striking that, although Wallace continued to work in the school system for nearly seven months after the second typing test incident, the Board did not present proof of a single occurrence of actual ineffectiveness attributable to her deceitful conduct.
Nevertheless, Wallace's misconduct — which entailed a premeditated, intentional deception of her employer for the purpose of subverting the integrity of the employment application process, to the potential detriment not only of the school system but also of prospective applicants besides Tranee
— was of a kind that would not have failed, in the ordinary course of events, to impair her effectiveness in the school system. This finding is based on common sense and common knowledge, which teach that: (1) an employee who has been caught, red-handed, in the very act of advancing a plan to deceive his or her employer inevitably will be branded dishonest and disloyal — in a word, untrustworthy; and (2) an employee whose probity is rightly suspect cannot be as effective as one who is regarded favorably, or at least has given no cause for concern, on that score. Therefore, under the facts of this
case, it is reasonable to infer, and the trier of fact does infer, that Wallace's deceitful conduct must have impaired her effectiveness in the school system, to some extent.
In drawing the fair inference of resulting ineffectiveness, the trier has taken into account several additional factors that should be noted. First, the deceitful conduct at issue was not of a private immoral nature, e.g. some sort of consensual sexual activity between adults. Second, to execute her fraudulent scheme, Wallace needed to defy a direct order to stay away from the testing lab; the seriousness of Wallace’s deceitful conduct is magnified by the fact that it required a predicate act of willful defiance. Third, Wallace refused to acknowledge her wrongdoing, offering instead incredible excuses for it, and she never apologized or showed remorse. She did nothing, in short, to mitigate the damage to her reputation; if anything, she compounded the impairment that follows inexorably from fairly being thought dishonest. Finally, while there was no persuasive direct evidence of Wallace's resulting ineffectiveness, there was also no affirmative evidence that she continued to be effective despite having been caught, in flagrante delicto, defrauding her
employer. In sum, taking into consideration all of the evidence in the case, there are no compelling countervailing factual
grounds to discourage the drawing of an inference of
ineffectiveness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Generally speaking, "[I]n accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards [are empowered 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), Florida Statutes. More to the point, "school boards may prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees." Section 231.001, Florida Statutes.
One of the "rules governing personnel matters" that the Board has adopted is School Board Rule 6Gx13-4A-1.21, which provides, in pertinent part, as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
Employee conduct
All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County
Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, 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 workplace is expressly prohibited.
A district school board is considered 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), Florida Statutes. 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, Florida Statutes. Naturally, a school board must comply with the requirements of law in exercising these prerogatives.
"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," for a 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).
A district school board employee against whom a dismissal proceeding has been initiated must be given written
notice of the specific charges prior to the 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 [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)(Jorgenson, J. concurring).
Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated, and none other. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999);
Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla.
5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.
denied, 576 So. 2d 295 (1991).
At hearing, the school board has the burden to prove the allegations contained in the notice of specific charges by a preponderance of the evidence, unless the collective bargaining agreement covering the bargaining unit of which the employee is
a member prescribes a more demanding standard of proof. See
McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v.
Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). Neither party here has pointed to or offered in evidence any contractual provision that would require the Board to satisfy a more strict standard of proof.7
Where the employee whose discharge is sought is an "educational support employee," the school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes, which provides:
(1) As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a secretary, or a clerical employee, 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 district 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 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 district 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 district school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.
In the event the superintendent seeks termination of an employee, the district 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 district school board rule in the event there is no collective bargaining agreement.
Wallace is an "educational support employee," within the meaning of Section 231.3605(1)(a), Florida Statutes, who has completed the probationary period and is covered by a collective bargaining agreement. Accordingly, pursuant to Section 231.3605(2)(b), Florida Statutes, her employment may be
terminated only "for reasons stated in the collective bargaining agreement."
An examination of several provisions of the collective bargaining agreement in evidence in the instant case reveals that a bargaining unit member covered by the contract who has successfully completed his or her probationary period, as Wallace has, may be dismissed only for "just cause," which "includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." The collective bargaining agreement further provides that these "charges are defined, as applicable, in State Board Rule 6B-4.009."
Rule 6B-4.009, Florida Administrative Code, contains the "criteria for suspension and dismissal of instructional personnel." It provides, in pertinent part, as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
* * *
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional
refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
The Code of Ethics of the Education Profession (adopted in Rule 6B-1.001, Florida Administrative Code) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Rule 6B-1.006, Florida Administrative Code), which are incorporated in the definition of "misconduct in office," provide, in pertinent part, as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida.
* * *
(3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one’s own or another’s application for a professional position.
The foregoing rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the employee. See Rosario v. Burke, 605 So. 2d 523,
524 (Fla. 2d DCA 1992); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
In its Notice of Specific Charges served November 22, 2000, the Board advanced three theories for Wallace's removal: Misconduct in Office (Count I); Gross Insubordination/Willful Neglect of Duties (Count II); and Conduct Unbecoming a School Board Employee (Count III).
As underlying infractions on which to base the charge of misconduct in office, the Board alleged that Wallace had violated Rules 6B-1.001(3), 6B-1.006(4)(b) and/or (c), and 6B- 1.006(5)(a), (h), (i), and/or (l), Florida Administrative Code. The Board, however, made no apparent effort at hearing to prove, or in its proposed recommended order to argue, that Wallace had violated Rules 6B-1.006(4)(b) or (c) or 6B-1.006(5)(l); these particular grounds, therefore, were not established and require no further elaboration.
The Board grounded its charge of "conduct unbecoming a school board employee" on Wallace's alleged violation of School Board Rule 6Gx13-4A-1.21. This particular offense is not one of the just causes enumerated in the collective bargaining agreement, although that contract's list, by its plain terms, is not intended to be exclusive. Yet, to avoid destroying the intended purpose of the contractual provision that permits the discharge of a covered employee only for just cause,8 the doctrine of ejusdem generis requires that "conduct unbecoming"
be treated as a species of misconduct in office, so that, to justify termination, a violation of School Board Rule 6Gx13-4A-
1.21 must be "so serious as to impair the individual's effectiveness in the school system." Cf. Robbie v. Robbie, 25 Fla.L.Weekly D2785 (Fla. 4th DCA, Dec. 6, 2000).9
Whether Wallace committed the above offenses, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667
So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653
So. 2d 489, 491 (Fla. 1st DCA 1995).
As set forth in the preceding Findings of Fact, the trier has determined as matter of ultimate fact that Wallace is not accountable for gross insubordination as defined in Rule 6B- 4.009(4), Florida Administrative Code; further, she did not commit misconduct in office on that first occasion when she was
suspected of wrongdoing in the typing lab; but, she is guilty of misconduct in office by reason of her deceitful conduct in connection with the second typing test incident.
These factual findings, however, were necessarily informed by the administrative law judge's application of the law. An examination of the pertinent legal principles, therefore, will illuminate the dispositive findings of ultimate fact.
Gross Insubordination
To constitute gross insubordination or willful neglect of duties, an employee's intentional defiance must be "constant or continuing," and involve the disobedience of a direct order. Rule 6B-4.009(4), Florida Administrative Code. Accordingly, "one isolated act of contempt is not synonymous with 'gross insubordination,'" Smith v. School Board of Leon County, 405
So. 2d 183, 185 (Fla. 1st DCA 1981), nor is contemptuous conduct that "does not involve a violation of any direct order or a gross violation of any personnel rule," Rosario v. Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992).
Here, the Board failed to prove that Wallace constantly or continually had intentionally violated a direct order during the time frame relevant to these dismissal proceedings. While the evidence showed that Wallace probably had been grossly insubordinate in the distant past, it also
established that the Board, in its discretion, had elected to excuse, tolerate, or overlook her bad behavior. Moreover, by the end of the 1998-99 school year Wallace was performing to her then-supervisor's satisfaction. It is concluded, therefore, that under the present circumstances, any acts of disobedience which occurred before July 14, 1999 — the date of Wallace's final, overall favorable evaluation — are irrelevant.
The Board succeeded in proving isolated instances of disobedience on Wallace's part after July 1999. But these constituted individual acts of simple insubordination that fall outside the definition of gross insubordination provided in Rule 6B-4.009(4), Florida Administrative Code, and therefore are not just cause for dismissal.
Misconduct in Office
The offense of misconduct in office consists of three elements: (1) A serious violation of a specified rule that (2) causes (3) an impairment of the employee's effectiveness in the school system.10 A school board seeking to terminate an employee on the basis of misconduct in office must prove "each and every element of the charge." MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993).
The Board proved by the greater weight of evidence that Wallace engaged in deceitful conduct on February 23, 2000, in violation of Rules 6B-1.006(5)(a), (h), and 6B-1.001(3),
Florida Administrative Code, and School Board Rule 6Gx13-4A-
1.21. This case does not present any complicated or close factual or legal questions regarding the violation element of the offense of misconduct in office.
The resulting ineffectiveness component (comprising
the second and third elements) is another matter, however. The direct evidence, on its own, is insufficient to establish that Wallace's effectiveness in the school system was impaired as a result of her deceitful conduct. To make the required showing of impaired effectiveness, therefore, the Board must rely on inferences in aid of its proof.
The Second and Fifth District Courts of Appeal have authorized the use of inferences to lighten the school board's burden of proving resulting impaired effectiveness.
In Walker v. Highlands County School Board, 752 So. 2d
127 (Fla. 2d DCA), rev. denied, 773 So. 2d 58 (2000), a teacher appealed his discharge on the ground that the school board had failed to prove that his violation of school board policy resulted in impaired effectiveness. The charges against him stemmed from a classroom incident that arose from two apparently unrelated disruptions: an alleged theft of someone's compact disc and the presence of an intoxicated student. Id. at 128.
A commotion ensued when the students learned that school authorities, whom the teacher had summoned for assistance, would
search their personal belongings. The teacher fanned the flames by offering to hold the students' contraband in exchange for cash, although he evidently did not intend that anyone would take this highly inappropriate proposal seriously. Not surprisingly, the situation degenerated into chaos. Id.
The second district held that "under the circumstances
. . . [the teacher's] ineffectiveness may be inferred." Id. Elaborating, the court explained that the "chaos in [the teacher's] classroom" — which accompanied his violation of "established school board policy" — "sp[oke] for itself" regarding the teacher's resulting ineffectiveness. Id. It was therefore permissible for the trier of fact11 to infer the teacher's impaired effectiveness in the school system from the loss of classroom control to which his violation of school board policy immediately had led.
In Walker, the basic fact from which the trier could infer impaired effectiveness — that which spoke for itself — was classroom chaos, i.e. the contemporaneous consequence of the teacher's violation of school board policy. Indeed, the classroom chaos that resulted immediately from the teacher's rule violation constituted direct (as opposed to circumstantial) evidence of some actual impaired effectiveness on one occasion, of limited duration. The second district did not say,
explicitly, that resulting impaired effectiveness could be inferred merely from the fact of the violation itself.
However, the court implied as much. In an earlier case holding that impaired effectiveness is an element which must be proved and not presumed, see McNeill v. Pinellas County
School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996), the second district had declined an invitation to follow the Fifth District Court of Appeal's decision in Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995), which had affirmed
an order terminating a teacher's employment, notwithstanding the absence of evidence of impaired effectiveness, because the violation "must have impaired his effectiveness as a teacher, in this case." Id. at 175-76. Tellingly, the Walker court felt
compelled to distinguish McNeill, and it did so primarily on the basis that the violation at issue in McNeill had involved misconduct of a "private immoral nature" (touching an undercover officer in a sexually suggestive manner) from which ineffectiveness could not be inferred. Walker, 752 So. 2d at
128. This distinction not only seems designed to limit McNeill to its facts, but also strongly suggests that the second district would allow a trier to infer ineffectiveness from proof of the violation itself — so long as it is not of a private immoral nature.12 It bears repeating, however, that such an inference was not required in Walker because there was evidence
that the violation at issue in that case had caused some actual ineffectiveness.
As the court recognized, McNeill was distinguishable on this latter point as well, for it added:
We note that, unlike the instant case where [the teacher’s] ineffectiveness in the school system was patent and obvious, the hearing officer in McNeill was presented with ample proof that McNeill continued to be effective within the school system.
Numerous students, parents and coworkers testified to McNeill’s continued effectiveness.
Id. at 128-29 (emphasis added).13
In sum, the Walker court held that ineffectiveness could be inferred where there is proof of some actual impaired effectiveness, and it signaled approval of the principle that ineffectiveness may be inferred from the violation itself unless the violation is of a private immoral nature or there is ample proof of the individual’s continued effectiveness.
If the second district has shown some ambivalence about inferring impaired effectiveness, the Fifth District Court of Appeal nearly discarded the element in Purvis v. Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000). There, a high school teacher was fired as a consequence of having been arrested and tried on criminal charges of resisting arrest and battery on a law enforcement officer. Although the jury found him not guilty of these crimes, the school board proceeded to
terminate the teacher’s employment for misconduct in office based on the actions that had led to his arrest and prosecution, as well as the allegation that the teacher had lied under oath at his criminal trial. Id. at 492. After an administrative hearing, the administrative law judge found that the teacher had perjured himself in the criminal trial and had resisted arrest, but that “neither offense was so serious as to impair his effectiveness as a teacher.” Id. at 496. The administrative law judge therefore recommended that the teacher be reinstated.
The school board rejected the administrative law judge's factual determination regarding the teacher’s ongoing effectiveness and concluded that, “as a matter of law,” the violations at issue had caused ineffectiveness. Id. The
teacher appealed, and the fifth district framed the issue as being “whether the school board erred in terminating [the teacher], because the evidence was insufficient to show that [his] effectiveness in the school system had been impaired.” Id. at 497.
The court looked first at “[t]wo decisions of other courts” — the first district in MacMillan and the second in McNeill — which “suggest[ed] that [resulting ineffectiveness] is
always a factual issue, on which evidence must be presented and a factual finding made.” Id. But, unlike those courts, the fifth district previously had “indicated [in the Summers case]
that impaired effectiveness in the school system can be inferred from certain misconduct.” Id. at 498. On Summers, the court wrote:
Id.
The Summers opinion does not specify the particular misconduct involved, but does say there had been no finding that a teacher’s conduct was “so serious as to impair the individual’s effectiveness in the school system” nor was any evidence on this issue presented at the teacher’s hearing — that is, no one testified that appellant’s conduct impaired his effectiveness. Summers argued that these two omissions required reversal of the order of suspension. This court disagreed, holding that the teacher’s impaired effectiveness could be inferred from the nature of the violation.
Having distanced itself from the courts in McNeill and
MacMillan, the court then turned to Walker in which, it said,
the second district had found “that no evidence of impaired effectiveness was necessary because the misconduct ‘spoke for itself.’” Id. (Actually, as we have seen, there was evidence of ineffectiveness in Walker — the classroom chaos — and it was
the cacophonous voice of that consequence, rather than the misconduct itself, which the second district had heard speaking.)
Reaching its conclusion, the court hinted that it was inclined to deem impaired effectiveness to be merely a “descriptive term” and not an element of the offense of
misconduct in office. Id. It stopped short of doing that,
however, because it believed the particular facts at hand, namely that the teacher had lied under oath and had resisted arrest, “would support the inference that [his] effectiveness as a teacher [had] been impaired, even though no [one] was called as a witness to say so.” Id.
But inferences are supposed to be permissive,14 and the trier of fact in Purvis — the administrative law judge — had not drawn the inference. Yet, significantly, the fifth district did not hold that the school board properly had rejected the administrative law judge's fact finding (that the teacher remained effective) because it was not supported by competent substantial evidence or because the hearing had not complied with the essential requirements of law, see Section 120.57(1)(l), Florida Statutes. Nor did it remand for further proceedings so that the trier could reconsider the evidence in light of the court’s legal determination that an inference of impaired effectiveness would be permitted. See Section 120.68(6)(a), Florida Statutes. Rather, the court held that the school board was entitled to reject the administrative law judge's conclusions of law. Id. The fifth district evidently
concluded that an "inference" of impaired effectives was required, as a matter of law, under the facts of Purvis. Thus,
the "inference" of which the court spoke was really a presumption.
In its strictest sense, then, Purvis stands for the narrow proposition that where the evidence shows that a teacher has committed perjury and resisted arrest, impaired effectiveness must be presumed as a matter of law, at least when the teacher has failed to rebut this presumed fact. More broadly, however, Purvis establishes that it is permissible to allow the trier to infer impaired effectiveness from the fact of the violation itself. Purvis pronounced a more robust statement of this doctrine than had Walker, which made the point indirectly, arguably in dicta, and with some conditions on its application.
The inference that these courts would allow is a powerful one that effectively relieves the school board of the burden of proving an element (or elements, i.e. cause and ineffectiveness) of its case. The danger of eliminating an element (by allowing proof of one to form the basis for inferring another) fairly demands that the inference of resulting ineffectiveness be used sparingly and with great care. Unfortunately, neither court articulated parameters establishing when it is appropriate for the judge to permit the trier to draw the inference, nor did either prescribe any criteria to guide the trier’s application of the inference to the facts in those
circumstances where the judge concludes the inference is legally permissible. Unfortunately, the Walker and Purvis decisions invite the trier of fact to deduce impaired effectiveness based on little, if anything, more than his or her own subjective “gut reaction” to the violation at hand — a circumstance that does not inspire confidence in the rule of law.
It must be acknowledged, also, that the second and fifth districts’ respective decisions in Walker and Purvis, on the one hand, may be in conflict with the first district’s MacMillan decision on the other. In MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993), a teacher was charged with misconduct in office on allegations that he had made inappropriate, sexually oriented remarks to at least eight female students. The administrative law judge who heard the case concluded that the teacher had not intended his apparently light-hearted comments to be taken seriously or as sexual innuendos. Id. at 228-29. One such remark, however, was
determined to have been a “technical” violation of the “aspirational” rule prohibiting a teacher from intentionally embarrassing a student, although this apparently minor infraction had not impaired the teacher’s effectiveness. Id. at
228.
The school board rejected the administrative law
judge’s findings on the ground that no reasonable person could
have made them, and it terminated the teacher’s employment against the administrative law judge’s recommendation. Id. at
229. The first district reversed, deciding that the administrative law judge’s findings of fact were “supported by competent substantial evidence” and that the school board had “substituted its own judgment without any showing that the initial hearing was procedurally flawed or produced faulty conclusions of law.” Id. at 227.
The court’s discussion of resulting ineffectiveness — which, it specifically “reiterate[d],” is an element of the offense of misconduct in office that must be proved, id. at 229-
30 — is noteworthy because the facts showed but one “technical” rule violation.15 The superintendent had testified that the teacher’s effectiveness had been seriously impaired, to the point that termination was the only appropriate penalty. Id. The first district characterized this testimony as “conclusory” and found it to be outweighed by the affirmative evidence, much of it given by students, of the teacher’s good teaching skills. Id.; cf. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(in disciplinary proceeding, superintendent’s conclusory testimony was insufficient to prove teacher's ineffectiveness clearly and convincingly). On balance, the record supported the administrative law judge’s finding regarding the teacher’s continued effectiveness. MacMillan, 629 So. 2d at 230.
Despite their apparently different approaches, MacMillan can be squared with Walker and Purvis if the first district’s description of the conduct in question as amounting to, at most, a de minimis violation is accepted at face value.16 Presumably, neither the second nor the fifth district would consider a “technical” violation of an “aspirational” rule to be the sort of misconduct that necessarily results in impaired effectiveness, warranting an inference of ineffectiveness.17 Conversely, because the issue of inferences was not raised in MacMillan, the first district had no occasion to hold expressly that ineffectiveness could never be deduced from the violation itself; thus, the decision does not preclude the possibility that the court would approve such an inference if confronted with a non-technical violation that inevitably would be expected to impair the individual’s effectiveness — particularly if, as in Walker, the trier of fact had drawn the inference.
This administrative law judge has determined that the trier should be allowed the inference in limited circumstances, similar to the way which, in negligence law, a jury may be supplied the res ipsa loquitur inference. On examination, that doctrine provides guidance by analogy for avoiding misuse or overuse of a powerful method of proof.
In McDougald v. Perry, 716 So. 2d 783, 784-85 (Fla.
1998), the Florida Supreme Court expounded upon the doctrine of
res ipsa loquitur and described the "rare instances" in which it
applies. On the general nature of the doctrine, the court quoted the following statement from its opinion in Marrero v. Goldsmith, 486 So. 2d 530, 531 (Fla. 1986):
"Res ipsa loquitur is a Latin phrase that translates 'the thing speaks for itself.' It is a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. '[T]he doctrine of res ipsa loquitur is merely a
rule of evidence. Under it an inference may arise in aid of the proof.' . . . It provides an injured plaintiff with a common- sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present."
McDougald, 783 So. 2d at 785 (citations omitted).
For the rule to apply, the accident must be one that, on the basis of past experience, "'reasonably permits the conclusion that such events do not ordinarily occur unless someone has been negligent.'" Id. (quoting Restatement (Second) of Torts § 328D comment c (1965)). Further,
"[i]n the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in
some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion."
Id. at 786 (quoting Restatement (Second) § 328D comment d).
To be entitled to a jury instruction on res ipsa loquitur, a plaintiff must prove to the court's satisfaction "1)
that the cause of his or her injury was under the exclusive control of the defendant, and 2) that the injury would not, in the ordinary course of events, have occurred without negligence on the part of the defendant, who was in control." Kenyon v.
Miller, 756 So. 2d 133, 136 (Fla. 3d DCA 2000). The court should never lightly supply this inference. Id. Giving a res ipsa loquitur instruction when the facts, as a matter of law, do not justify the inference is always reversible error, because the charge greatly reduces a plaintiff's burden of proof. Id. at 137; Wal-Mart Stores, Inc. v. Rogers, 714 So. 2d 577, 578-79 (Fla. 1st DCA 1998).
Substitute the words "violation" or "misconduct" in place of "accident," "injury," or "event" and replace "negligence" with "resulting ineffectiveness," and the above discussion of res ipsa loquitur becomes meaningful in the present context with little additional tinkering except as required to account for the remaining difference that here the fact to be deduced is an effect rather than a cause. For that
reason, the element of control over the injury-producing object or instrumentality — necessary in negligence cases to exclude the reasonable possibility that someone else besides the defendant was responsible for causing the accident — is inapposite in a matter such as this, where the identity of the violator should never be in dispute. Instead of a control element, misconduct in office cases need an element implementing the Walker rule that violations of a private immoral nature cannot form the basis for an inference of resulting ineffectiveness.
Accordingly, for the school board to profit from an inference of resulting ineffectiveness, it must establish two things: (1) that the violation is not of a private immoral nature, and (2) that, on the basis of past experience as drawn from the fund of common knowledge, the violation would not, in the ordinary course of events, have failed to impair the individual's effectiveness in the school system. If the administrative law judge in his or her role as judge of the law determines that the school board has presented its case in a manner that satisfies these requisite elements, then the administrative law judge, as trier of fact, may consider whether the circumstances justify making an inference of resulting ineffectiveness.
Although the duties of judge and jury are vested in a single administrative law judge, he or she ought to be mindful that a legal determination that the inference is permissible does not compel a factual finding that the violation impaired the individual's effectiveness in the school system. If the legal question is answered in the affirmative, it may be helpful for the administrative law judge, in carrying out his or her responsibility as fact-finder, to consider the following charge, adapted from Florida Standard Jury Instruction 4.6:
If you find that the circumstances of the violation were such that, in the ordinary course of events, it would not have happened without impairing the individual's effectiveness in the school system, and that the violation was not of a private immoral nature, then you may infer that the individual's effectiveness was impaired unless, taking into consideration all of the evidence in the case, you conclude that the individual continued to be effective notwithstanding the violation.
In this case, after much deliberation the administrative law judge determined, as a legal matter, that the trier of fact could consider the inference, i.e. that the inference was legally permissible. Then, as fact-finder, the administrative law judge gave careful consideration to whether, in light of all the evidence in this case, the inference of resulting ineffectiveness was factually justified. Relying on the above instruction, the trier inferred the fact in dispute —
but not without acknowledging to himself, as he does here publicly, that the question is an extremely close one about which reasonable people could fairly disagree.
Having proved by a preponderance of evidence that Wallace committed the offense of misconduct in office, the Board is entitled to terminate Wallace’s employment for just cause in accordance with the collective bargaining agreement.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Wallace’s suspension without pay effective October 12, 2000, and discharging her from further employment in the Miami- Dade Public Schools.
DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 4th day of April, 2001.
ENDNOTES
1/ Wallace's former supervisor, Mr. Keith, mentioned "the subsequent evaluation" that he did not prepare, T-290, but from the context of his comment it is not clear whether he was speaking of an actual, or merely a presumed, document. In any event, if Wallace received an annual evaluation at the end of the 1999-2000 school year, it is not in evidence.
2/ Mr. Keith gave Wallace an unsatisfactory rating in a number of sub-categories, specifically A.3 (knowledge of office procedures), C.2 (effective use of time), E.1 (follow-through on assignments), F.1 (regular attendance), and G.2 (adherence to office procedures).
3/ According to Mr. Henry Horstmann, an Executive Director in the Division of Non-Instructional Staffing, employees are not supposed to take the typing test for practice, but there was no evidence that this policy has been reduced to writing or that any employee has been disciplined for taking the test after having received the highest efficacious score.
4/ The evidence presented at hearing fell short of proving that Wallace had committed a fraudulent act on September 16, 1999. A preponderance of evidence established, however, that Wallace's behavior on that date, if not actually fraudulent, nevertheless warranted the measured discipline that Mr. Horstmann imposed.
5/ The evidence failed to establish a violation of Rule 6B- 1.006(5)(i), Florida Administrative Code, which prohibits fraud in connection with one's own or another's application for employment, because neither Wallace nor anyone else was shown to have submitted an employment application either in furtherance, or as a result, of Wallace's deceitful conduct on February 23, 2000.
6/ Wallace was not employed in a management or confidential position, nor was she required, like a teacher, to act in loco parentis or serve as a role model to children.
7/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its
employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); Palm Beach County School Board v. Auerbach, No. 96-3683 (Fla. DOAH February 20, 1997) (Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which . .
. requires the more stringent standard of proof: clear and convincing evidence.").
8/ School Board Rule 6Gx13-4A-1.21 is plainly aspirational in nature. Further, it is surely true that all school board employees, at one time or another, in some aspect of their lives, conduct themselves in a manner that does not reflect credit on themselves or their employer; such is the human condition. Therefore, if the collective bargaining agreement were construed to allow any violation of this rule to serve as just cause for dismissal, regardless of its seriousness, then the Board would rarely, if ever, need or want to bother with the grounds defined in Rule 6B-4.009, Florida Administrative Code, for it could probably find reason to terminate any employee, effectively at will, on the basis of unbecoming conduct.
9/ See generally Green v. State, 604 So. 2d 471, 473 (Fla. 1992)("Under the doctrine of ejusdem generis, where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated.").
10/ The phrase “so serious as to impair,” as used in Rule 6B- 4.009(3), Florida Administrative Code, is a subtle statement of the causal component of the offense, making the element easy to overlook. Clearly, however, the impaired effectiveness which demonstrates the requisite seriousness of a violation must be the result of (that is be caused by) the violation at issue.
Consider: If an employee suffered a debilitating stroke at or near the time he happened to commit an immaterial rule violation, the fact that the stroke impaired the individual’s
effectiveness in the school system could not, obviously, constitute proof of misconduct in office.
11/ The court did not specify whether the hearing had been conducted by an administrative law judge or held before the school board.
12/ Reinforcing this understanding of Walker are the opinion’s concluding paragraph, in which the court cited Summers as supporting authority for the result it had reached, and its observation that “[i]n this case, independent evidence of the teacher’s ineffectiveness would be superfluous.” Id. at 128.
13/ The court did not reveal why, if the individual’s ineffectiveness were “patent and obvious” from the proof in Walker, it had perceived a need to infer this readily apparent fact in the first place.
14/ See Greyhound Corporation v. Ford, 157 So. 2d 427, 431 (Fla. 2d DCA 1963)("An inference is regarded as a permissible deduction from the evidence before the court which the jury may accept or reject or accord such probative value as it desires, while a presumption is, characteristically, a rule of law, fixed and relatively definite in its scope and effect, which attaches to certain evidentiary facts and is productive of specific procedural consequences respecting the duty of proceeding with the evidence."); accord McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So. 2d 660, 672 (Fla. 1st DCA 1991)(Zehmer, J., specially concurring); see also State v. Rolle, 560 So. 2d 1154, 1156 (Fla. 1990).
15/ One might be forgiven for supposing that an individual’s merely “technical” violation of an “aspirational” rule could never impair his effectiveness in the school system and hence for wondering why the first district paid such attention to the element of resulting ineffectiveness.
16/ It is possible, of course, that the court in MacMillan could consider the violation "technical" only because it had found in the record persuasive evidence of the teacher's continued effectiveness. If the description of the violation as "technical" were dependent upon the determination that there was insufficient evidence of resulting ineffectiveness to prove the charge of misconduct in office, rather than a reflection of the intrinsic nature of the violation, then there would be little (if any) reason to imagine that the Second and Fifth District
Courts of Appeal would not regard the misconduct at issue in MacMillan as being the kind that necessarily impairs an individual's effectiveness, which would make MacMillan more difficult to reconcile with Walker and Purvis.
17/ Whether either of those courts would have taken the first district’s tolerant view of the teacher’s disputed remarks is another matter. Indeed, if the consequences are ignored, it is difficult to distinguish the misconduct in MacMillan from the misconduct in Walker. Both involved ill-advised attempts at humor, with the material difference between them being that in Walker the immediate result was classroom chaos, CITE, while in MacMillan the teacher’s inappropriate remarks caused no disruption, 629 So. 2d at 228.
COPIES FURNISHED:
Pamela Y. Chance, Esquire Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Jesse J. McCrary, Jr., Esquire McCrary & Mosley
2800 Biscayne Boulevard, 9th Floor Miami, Florida 33137
Roger Cuevas, Superintendent Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 403
Miami, Florida 33132
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
Tallahassee, Florida 32399-0400
James A. Robinson, General Counsel Department of Education
The Capitol, Suite 1701 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 | Document | Summary |
|---|---|---|
| May 17, 2001 | Agency Final Order | |
| Apr. 04, 2001 | Recommended Order | District school board was entitled to terminate non-instructional employee for just cause, having established by a preponderance of the evidence that the employee had committed the offense of misconduct in office. |
MRS. JERRY D. JACKSON, O/B/O TAMMY TERRELL JACKSON vs. SCHOOL BOARD OF DADE COUNTY, 00-004392 (2000)
SCHOOL BOARD OF DADE COUNTY vs. CAROLYN T. SMITH, 00-004392 (2000)
MIAMI-DADE COUNTY SCHOOL BOARD vs JOSE FLEITES, 00-004392 (2000)
SCHOOL BOARD OF DADE COUNTY vs. FRANCES MARCUS, 00-004392 (2000)
DADE COUNTY SCHOOL BOARD vs. NORRIS L. BARKER, 00-004392 (2000)
