STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 01-2832
)
GENEVA WASHINGTON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on October 8, 2001, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Pamela Young Chance, Esquire
School Board of Miami-Dade County 1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Manny Anon, Jr., Esquire
99 Northwest 183rd Street, Suite 224 North Miami, Florida 33034
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses alleged in the Notice of Specific Charges.
If so, whether such offenses provide the School Board of Miami-Dade County with just or proper cause to take disciplinary action against Respondent.
If so, what specific disciplinary action should be taken.
PRELIMINARY STATEMENT
On July 11, 2001, the School Board of Miami-Dade County (School Board) took action to suspend Respondent for ten days without pay from her position as a Cook I at Melrose Elementary School. By letter dated July 16, 2001, Respondent advised the School Board that she "want[ed] to appeal" the suspension. On July 18, 2001, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge.
On or about August 31, 2001, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges (Notice). The Notice alleged that on November 11, 2000, Respondent had in engaged in the following conduct:
On or about November 11, 2000, Respondent was involved in an altercation with a Cafeteria Monitor at Melrose Elementary. The Monitor reported the verbal altercation to the Principal and accused Respondent of belittling her in the presence of others. The Principal approached Respondent, and asked her when her duties were over. Respondent replied "If I have to talk to you about that fool out there, I'm calling Mr. Baines, my union rep. Just
'cause that fool is shedding tears, you are going to listen to her? I'm not afraid of you! Just 'cause you come in her and everyone has to shake. I'm not afraid of you!"
Later that day, the Principal held a meeting with Respondent to discuss the events described in paragraph [8] above. Not only did Respondent refuse to sit when directed to do so by the Principal, Respondent also stood over the Principal's desk yelling continuously and in an aggressive manner. The Principal, who felt threatened by Respondent's behavior, attempted to calm Respondent several times without success. Respondent continued to yell "This is my voice! My momma gave me this voice, and I'm not going to change it
for you! Do you want me to slit my throat?" Fearing that Respondent would turn violent, a secretary at Melrose Elementary called security to the office.
According to the Notice, Respondent's conduct was in violation of School Board Rule 6Gx13-4-1.08, Violence in the Workplace (Count I); in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties (Count II); and constituted gross insubordination (Count III) and therefore the School Board had just cause to suspend Respondent ten days without pay for having engaged in such conduct. The Notice further alleged that, on a previous occasion, July 11, 2000, after having "observed and overheard" Respondent "using profanity in the workplace," the "Principal [of Melrose Elementary School] verbally directed Respondent from using profanity and any other disruptive language [in] the workplace . . . , reminded Respondent about
her responsibilities and duties as a School Board employee and gave Respondent a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties."
As noted above, the final hearing in this case was held before the undersigned on October 8, 2001. Seven witnesses were allowed to testify at the final hearing:1 Cynthia Gracia, the Principal of Melrose Elementary School; Maureen Mari, Principal Gracia's secretary; Tiffany Davis, the Data Input Specialist at Melrose Elementary School; Virginia Bradford, the Executive Director of the School Board's Office of Professional Standards; Terry Haynes, the Head Custodian at Melrose Elementary School; Tonia Scott, the Food Service Manager at Melrose Elementary School; and Respondent. In addition to the testimony of these seven witnesses, 17 exhibits (Petitioner's Exhibits 1 through 3,
5 through 7, 9 through 12, and 14 through 18, and Respondent's Exhibits 1 and 3) were offered and received into evidence.
At the close of the evidentiary portion of the final hearing on October 8, 2001, the parties were advised of their right to file proposed recommended orders and a deadline was established (25 days from the date of the Division's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The Division received the Transcript of the final hearing (consisting of one volume) on October 23, 2001. On November 9,
2001, the School Board filed an unopposed Motion requesting an extension of the deadline for filing proposed recommended orders. Good cause having been shown, the undersigned, on November 13, 2001, issued an Order extending the deadline for the filing of proposed recommended orders to November 30, 2001. On November 30, 2001, the School Board and Respondent filed their Proposed Recommended Orders. These Proposed Recommended Orders have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The Parties
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Dade County, Florida, including Melrose Elementary School (School).
Respondent has been employed by the School Board as a Cook I and assigned to the School since August of 1999.2 At all times material to the instant case, her regular working hours have been 6:30 a.m. to 1:00 p.m.
Respondent's Supervisors
Tonia Scott is now, and has been at all times material to the instant case, the Food Service Manager at the School and Respondent's immediate supervisor.
For the past five years, Cynthia Gracia has been the Principal of the School. As Principal, she has had ultimate supervisory authority over all employees at the School, including those working in the School's cafeteria.
The Collective Bargaining Agreement
As a Cook I employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract).
Article II, Section 3., of the AFSCME Contract provides, in pertinent part, as follows:
ARTICLE II- RECOGNITION
SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of
the School Board and the Superintendent for the management of the total school system
and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the
Superintendent, by way of limitation, include the following: . . .
(2) separation, suspension, dismissal, and termination of employees for just
cause; . . . .
It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following:
A. Discipline or discharge of any employee for just cause; . . . .
Article IX, Section 1.F., of the AFSCME Contract provides that "[e]mployees shall not . . . be compelled to work beyond their scheduled workday, unless they are compensated for such additional time."
Article IX, Section 4.A., of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows:
Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract.
If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated.
Article IX, Section 8., of the AFSCME Contract addresses the subject of "[o]vertime." It provides, in pertinent part, as follows:
It shall not be the general policy of the Board to have its employees work frequent or consistent overtime; however, when employees are directed to work overtime, in addition to their regular hours, aggregating more than a maximum of 40 hours per week, they shall be compensated as follows:
The rate of time and one-half of the normal rate shall be paid for all hours in a pay status per week over the regular weekly task assignment, aggregating more than a maximum of 40 hours per week. . . .
F. By mutual consent of the supervising administrator and the employee, compensatory time, in lieu of overtime pay, may be given and used in lieu of overtime pay. In such cases, one and one-half hours of compensatory time shall be provided the employee for each hour of overtime worked.
Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction."
Section 1 of Article XI is entitled "Due Process" and provides as follows:
Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or
rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include:
verbal warning;
written warning (acknowledged);
Letter of reprimand;
Suspension/demotion; and
Dismissal.
A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.
The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record.
The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated.
The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record.
The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit.
Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade" and provides as follows:
Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be
binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures.
Section 3 of Article XI is entitled "Cause for Suspension" and provides as follows:
In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Article XI, Section 6.2., of the AFSCME Contract provides as follows:
Materials relating to work performance or such other matters that may be cause for discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment.
No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming aware of the facts reflected in the materials.
The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure.
There shall be no statements placed in an employee's personnel file unless the employee has bee given a copy.
School Board Rules
As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,3 including School Board Rule 6Gx13-4-1.08 and School Board 6Gx13- 4A-1.21.
School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows:
Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution.
Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as
safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved.
Dade County Public Schools employees have a right to work in a safe environment.
Violence or the threat of violence by or against students and employees will not be tolerated.
School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
I. 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 presence of students is expressly prohibited.
The July 11, 2000, Incident
On July 11, 2000, during working hours, while in or near the School's cafeteria, Respondent muttered the words "mother fuckers" loudly enough to be heard by Principal Gracia,
who, unbeknownst to Respondent, was standing directly behind Respondent.
After getting Respondent's attention and letting Respondent know that she had heard what Respondent had said, Principal Gracia asked Respondent to accompany her to the Assistant Principal's office.
Respondent complied with Principal's Gracia request and met with Principal Gracia, as well as the School's Assistant Principal, Earnestine Thomas, in Assistant Principal Thomas' office. During the meeting, Principal Gracia verbally directed Respondent to refrain from using profanity and other disruptive language while on School grounds, explaining that it was "totally inappropriate" for her to engage in such conduct. In addition, Principal Gracia provided Respondent with a copy of School Board Rule 6Gx13-4A-1.21.
On July 21, 2000, Respondent received the following memorandum from Principal Gracia regarding "[i]nappropriate [b]ehavior":
As a follow-up to the meeting held on July 11, 2000, in the Assistant Principal's office, find below a recount of the issues discussed in the presence of the Assistant Principal, Earnestine Thomas, Geneva Washington, Cook I and Cynthia Gracia, Principal.
On July 11, 2000, during the 12:30 lunch block you were observed and overheard by Cynthia Gracia, Principal, refer to the
electricians as "Mother Fuckers." Once you realized I was standing directly behind you, you squeamishly said, "I didn't see you there."
You were verbally directed to refrain from using profanity or any and all language disrupting the normal operation of school. Failure to comply will result in further disciplinary action. You were provided a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties.
The November 21, 2000, Incident
On November 21, 2000, while lunch was being served in the School's cafeteria, Respondent observed that Melania Argenal, a Spanish-speaking Cafeteria Monitor, had not paid for her lunch.
Ms. Argenal was not among the employees "allowed [in accordance with School Board policy] to eat free" in the cafeteria.
Because Respondent did not speak Spanish, she asked another employee (Julio, the zone mechanic), who was able to converse in both English and Spanish, to tell Ms. Argenal (in Spanish) that, pursuant to School Board policy, Ms. Argenal had to pay for her lunch.
In taking such action to inform Ms. Argenal that she was not entitled to "eat free" in the cafeteria, Respondent was acting in accordance with instructions she had been given by her immediate supervisor, Ms. Scott.
Later that day, at approximately 1:05 p.m., Principal Gracia walked into the School's cafeteria, where she was approached by Ms. Argenal. Ms. Argenal told Principal Gracia that, earlier that day during lunch, Respondent had embarrassed and humiliated Ms. Argenal in front of others in the cafeteria.
Although it was after the end of her regular workday, Respondent was still at work, "finishing up" in the cafeteria. Principal Gracia walked up to Respondent and asked Respondent to report to the Principal's office upon the completion of her duties. Respondent inquired as to why Principal Gracia wanted to meet with Respondent. Not receiving any response to her query, Respondent told Principal Gracia that if the meeting was to discuss the incident involving Ms. Argenal earlier that day, Respondent wanted her union representative, Herman Bain, to be present at the meeting. Principal Gracia indicated that Mr. Bain would not be welcome at the meeting.
During Principal Gracia's and Respondent's encounter in the cafeteria, Principal Gracia admonished Respondent that Respondent did not "have the right to tell [any]one what to do because it was [Principal Gracia's] school." This admonition made Respondent "very upset." She began crying hysterically and, as a result, became short of breath.
While Respondent was in this emotional state, Principal Gracia repeated her request that Respondent report to the Principal's office.
Terry Haynes, the Head Custodian at the School, witnessed the encounter between Principal Gracia and Respondent in the cafeteria. When Respondent began to cry, Mr. Haynes walked up to her and told her that "she needed to stop crying and calm down, and when she finished calming down, she could go down and talk to Ms. Gracia."
Respondent followed Mr. Haynes' advice. She waited a few minutes before leaving the cafeteria to go to Principal Gracia's office. Principal Gracia (who had remained in the cafeteria while Respondent attempted to regain her composure) followed Respondent to the office.
Once in the office, Principal Gracia sat down behind her desk and instructed Respondent to take a seat. Respondent refused to do so, stating that she preferred to stand.
Standing with her hands on her waist in front of Principal Gracia's desk, a short distance from Principal Gracia, Respondent (who was still upset) spoke to Principal Gracia in an unnecessarily loud and disrespectful manner.
Principal Gracia's repeated instructions to Respondent that Respondent sit down and lower her voice went unheeded. Rather than lowering her voice, Respondent defiantly raised it.
She shouted belligerently at Principal Gracia, "You don't tell me to lower my voice because my mama gave me this voice." Respondent's yelling could be heard in the main office.
Assistant Principal Thomas then entered Principal Gracia's office. Her presence had a calming influence on Respondent and the meeting was able to continue.
Although Principal Gracia's secretary, Maureen Mari, called "security" to the scene, the Security Monitors who responded remained outside Principal Gracia's office and made no attempt to remove Respondent from the office.
At the conclusion of her meeting with Principal Gracia and Assistant Principal Thomas, Respondent left Principal Gracia's office without incident.
At no time while she was in Principal Gracia's office did Respondent threaten, by words or conduct, to physically harm Principal Gracia.
After Respondent departed, Principal Gracia filled out an incident report describing what had occurred that day between her and Respondent.
The matter was investigated by the School Board Police Department.
A Preliminary Personnel Investigation Report (Report) was issued by the School Board Police Department on January 22, 2001. The Report contained the following "[c]onclusion":
Based on the information gathered during this investigation, there is sufficient evidence to prove that on November 21, 2000, Geneva Washington, Cook, Melrose Elementary School, disrupted the normal operation of the school by raising her voice, and ignoring Ms. Gracia's numerous requests to lower it, during a conference. Ms.
Washington's outburst caused office personnel to call school security for fear of impending violence on the part of Ms.
Washington towards Ms. Gracia. Ms. Washington was given several opportunities to respond to these allegations, however, she failed to show for three scheduled interviews. Furthermore, Ms. Washington ignored a Directive issued to her on July 11, 2000, warning her against use of such conduct in the workplace. Therefore, the allegation of Improper Conduct against Ms. Washington is Substantiated.
A conference-for-the-record was held with Respondent on March 13, 2001, to discuss the "substantiated" allegation of "Improper Conduct," as well as Respondent's future employment with the School Board. In attendance, in addition to Respondent, were: Principal Gracia; Essie Pace, the Director of Operations for the School Board's Region III; Virginia Bradford, the Executive Director of the School Board's Office of Professional Standards; and Mr. Bain of AFSCME, who was acting as Respondent's union representative.
Ms. Bradford prepared and sent to Respondent (by certified mail, return receipt requested) a memorandum, dated March 23, 2001, in which she summarized what had transpired at the conference-for-the-record.
In those portions of the memorandum addressing the "[a]ction [t]aken" and the "[a]ction [t]o [b]e [t]aken," Ms. Bradford wrote the following:
Action Taken
As a result of the investigative findings and conference data, you were advised of the availability of services from the District's support referral agency.
The following directives are herein delineated which were issued to you during the conference:
Remain in control of yourself and project a professional demeanor at the workplace and in all interactions with staff.
Comply with School Board Rule 6Gx13-4- 1.08, Violence in the Workplace, a copy of which was given to you at the conference.
Comply with School Board Rule 6Gx13-4A- 1.21, Responsibilities and Duties, a copy of which was given to you at the conference.
These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit and to the service provided to students. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. You were advised to keep information presented in this conference confidential and not discuss this with students or staff.
Action To Be Taken
You were advised that the information presented in this conference, as well as
subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region III, and the Principal of Melrose Elementary School.
Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. All disciplinary action shall be consistent with concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record.
You are apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record.
Respondent did not exercise her right "to clarify, explain, and/or respond to any information recorded" in
Ms. Bradford's March 23, 2001, memorandum.
At its July 11, 2001, meeting, the School Board "took action to suspend [Respondent] without pay for 10 working days, effective at the close of the workday, July 11, 2001, for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4-1.08, Violence in the Workplace; and 6Gx13-4A- 1.21, Responsibilities and Duties/Conduct Unbecoming a School Board Employee."
The Case of Ola Smith
Ola Smith is a Cafeteria Worker at the School.
On February 3, 1999, Ms. Smith received a written reprimand from Principal Gracia for insubordination, failure to follow a directive, falsifying a legal document,4 and defiance of authority.
At the time that she received her reprimand, Ms. Smith had no prior disciplinary record and therefore her situation was different than was Respondent's when Respondent received her ten-day suspension.
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. Section 230.23(5)(f), Florida Statutes ("The school board, acting as a board, shall exercise all powers and perform all duties listed below: PERSONNEL.--. . . [P]rovide for the . . . suspension, and dismissal of employees . . ."); and Section 231.001, Florida Statutes ("Except as otherwise provided by law or the State
Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.").
The "rules governing personnel matters" that have been adopted by the School Board include School Board Rules 6Gx13-4- 1.08 and 6Gx13-4A-1.21.
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), 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.
It, however, must exercise these powers in a manner that is consistent with the requirements of law and the provisions of any collective bargaining agreements into which it has entered with the bargaining unit representatives of its employees. 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 . . . ."); and 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, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
"Under Florida law, a [district] school board's decision to [suspend] 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."5 Sublett v. District School
Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
The employee must be given written notice of the specific charges against the employee prior to the formal hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation,
policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).
Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. 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); and Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the formal hearing, the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise (which the AFSCME Contract does not),6 the district school board's proof need only meet the preponderance of the evidence standard. 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)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were
true . . . ."); Allen v. School Board of Dade County,
571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard.").7
In the instant case, the Notice of Specific Charges served on Respondent alleges that, on November 21, 2000, Respondent engaged in conduct that was in violation of School Board Rule 6Gx13-4-1.08 (Count I); was in violation of School Board Rule 6Gx13-4A-1.21 (Count II); and constituted gross insubordination (Count III) and that such conduct, in light of
Respondent's prior disciplinary record, warranted the School Board taking action to suspend her for ten days without pay.
At the formal hearing, the School Board established by a preponderance of the evidence that, by yelling at Principal Gracia and repeatedly refusing to comply with Principal Gracia's instructions to be seated and lower her voice, while in Principal Garcia's office on the afternoon of November 21, 2000, Respondent violated School Board Rule 6Gx13-4A-1.21 and engaged in conduct constituting gross insubordination,8 as alleged in Counts II and III, respectively, of the Notice.9 (The School Board failed, however, to prove that, any time that day (November 21, 2000), Respondent engaged in threatening conduct in violation of School Board Rule 6Gx13-4-1.08, or that, during her encounter with Principal Gracia in the cafeteria earlier in the day, she engaged in conduct that was in violation of School Board Rule 6Gx13-4A-1.21 or constituted gross insubordination.10)
Accordingly, there is just or proper cause to take disciplinary action against Respondent.
Taking into consideration (as Article XI, Section 1., of the AFSCME Contract mandates) the seriousness of the offenses of which Respondent has been found guilty by the undersigned (i.e., the offenses alleged in Counts II and III of the Notice, neither of which are as serious as the "Violence in the Workplace" offense alleged in Count I (that the evidence does
not establish that Respondent committed)) and Respondent's employment record with the School Board (which reflects, among other things, that previously, in July of 2000, Respondent had been disciplined (with a verbal warning, with a written follow- up) for engaging in "inappropriate behavior"11), it is the recommendation of the undersigned that the School Board reduce Petitioner's ten-day suspension (which was imposed based upon the School Board's understanding that, among the offenses that Respondent had committed on November 21, 2000, was the violation of the School Board's "Violence in the Workplace" rule) to a five-day suspension12 and, in accordance with Article XI, Section 2., of the AFSCME Contract, award Respondent five days backpay.13
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the School Board issue a final order dismissing Count I of the Notice, finding Respondent guilty of Counts II and III of the Notice, reducing Respondent's ten-day suspension to a five-day suspension, and awarding Respondent five days back pay.
DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 7th day of December, 2001.
ENDNOTES
1/ At the School Board's request, the testimony of Herman Bain was excluded because of Respondent's prejudicial failure to timely disclose to the School Board (in accordance with the undersigned's Order of Prehearing Instructions) that it intended to present Mr. Bain's testimony at the final hearing.
Respondent, though, was given the opportunity to proffer Mr. Bain's testimony.
2/ She had previously been employed by the School Board as a Part-Time Food Service Worker from March 7, 1991, to 1995, when she left the employ of the School Board.
3/ These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
4/ Ms. Smith had indicated on her time sheet that she had arrived at work at 7:30 a.m., when, in fact, she had arrived at 7:45 a.m.
5/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
6/ 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.
7/ In those case where the employee is an "educational support employee" who has successfully completed his or her probationary period and where the disciplinary action sought to be taken against the employee is termination, the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes, which provides, in part, as follows:
(1) As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a member of the food service . . . 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.
Although Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract), the provisions of Section 231.3605, Florida Statutes, have no application to the instant case because the School Board is not seeking to terminate Respondent.
8/ "Gross insubordination" is "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Smith v. School Board of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981).
9/ In her Proposed Recommended Order, Respondent argues (for the first time) that she was denied her "Weingarten right" to have union representation at the meeting in Principal Gracia's office. It is true that, under Chapter 447, Part II, Florida Statutes, as construed by the Public Employees Relations Commission (the administrative agency charged with administering its provisions), a public employee has "the right [which is known as a "Weingarten right"] to union representation in an investigatory or disciplinary interview if [the] employee has a reasonable belief that disciplinary action may result from the interview" and that a public employer commits an unfair labor practice if it denies an employee the employee's "Weingarten right." City of Clearwater (Fire Dept.) v. Lewis, 404 So. 2d 1156, 1159 (Fla. 2d DCA 1981). However, even if the School
Board (acting through Principal Gracia) committed an unfair labor practice by refusing to allow Mr. Bain to be present at the meeting in Principal Gracia's office that does not excuse Respondent's inappropriate and insubordinate behavior during the meeting. Having decided to attend the meeting, Respondent was under an obligation to conduct herself, during the meeting, in a manner becoming of a School Board employee. (Had Respondent wanted to remedy any such unfair labor practice that may have been committed, she should have filed, within six months, an unfair labor practice charge with the Public Employees Relations Commission, which has exclusive jurisdiction over such matters. See Browning v. Brody, 796 So. 2d 1191, 1192-93 (Fla. 5th DCA 2001)("Case law interpreting the jurisdictional scope of the Act has broadly included, as falling within PERC's exclusive jurisdiction, those activities which 'arguably' constitute unfair labor practices as defined by section 447.501. ");
Maxwell v. School Board of Broward County, 330 So. 2d 177, 180 (Fla. 4th DCA 1976)("In the instant situation there can be no doubt that PERC has exclusive jurisdiction over statutorily enumerated unfair labor practices."); Public Employees Relations Commission v. Fraternal Order of Police, Local Lodge No. 38,
327 So. 2d 43, 45 (Fla. 2d DCA 1976)("It appears to us that the legislature intended for PERC to have exclusive jurisdiction over unfair labor practice questions of the type posed by the City in this case."); and Section 447.503(6)(b), Florida Statutes ("If the commission determines that the alleged unfair labor practice occurred more than 6 months prior to the filing of the charge, the commission shall issue an order dismissing the case, unless the person filing the charge was prevented from doing so by reason of service in the Armed Forces, in which case the 6-month period shall run from the date of the person's discharge.")
10/ While Respondent may not have left the cafeteria to go to Principal Gracia's office as soon as Principal Gracia might have wanted, Respondent's failure to leave sooner did not constitute gross insubordination.
11/ In her Proposed Recommended Order, Respondent claims that she was "disparately treated" because one of her co-workers, Ola Smith, engaged in "misconduct . . . more flagrant and serious, [but] received only a reprimand." Respondent, however, is not similarly situated to Ms. Smith because Respondent has a prior disciplinary record, whereas Ms. Smith, at the time she was disciplined, did not. Cf. State v. A.R.S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden. To support a
defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.").)
12/ Respondent contends in her Proposed Recommended Order that, because she received a verbal warning for her first offense in July of 2000, the maximum disciplinary penalty that she can receive in the instant case is a written warning (acknowledged), which is the "2nd step of discipline" described in Article XI, Section 1.A., of the AFSCME Contract. The argument is unpersuasive inasmuch as it is based upon a misreading of the language in Article XI, Section 1.A., of the AFSCME Contract.
See Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000)("Whereas section 102.11 is mandatory (i.e., the Department 'shall' ignore late returns), section
102.112 is permissive (i.e., the Department 'may' ignore late returns, or the Department "may" certify late returns and fine tardy Board members."); Dooley v. State, 789 So. 2d 1082, 1084 (Fla. 1st DCA 2001)("[R]ule 3.170(1) is clearly permissive in that it states a defendant 'may file a motion to withdraw.'"); State v. Thomas, 528 So. 2d 1274, 1275 (Fla. 3d DCA 1988)("As we perceive it, the State's argument is that 'should' is the equivalent of 'shall' and that 'shall' is mandatory. While we acknowledge that 'should' retains its arcane, schoolmarm meaning as a past tense of 'shall,' its modern usage is as the weaker companion to the obligatory 'ought.' Thus, it is said that '[o]ught should be reserved for expressions of necessity, duty, or obligation; should, the weaker word, expresses mere appropriateness, suitability or fittingness.'"); Massey Builders Supply Corp. v. Colgan, 553 S.E. 2d 146, 150 (Va. App. 2001)("The word 'shall' is primarily mandatory, whereas the word 'should' ordinarily implies no more than expediency and is directory only."); and Magnuson v. Grand Forks County, 97 N.W.2d 622, 624 (N.D. 1959)("It does not seem that the word 'should' was used inadvertently. Other instructions on the back of the order contain the more compulsive word 'must,' as for example 'the original of this order must be signed by the recipient or person acting in his behalf and by the vendor.' We construe the word 'should' as used here to be persuasive rather than mandatory.").
13/ Whether Respondent should also be "given time and a half for the extra hour that she had [to] stay after work on November 21, 2000" (as Respondent, in her Proposed Recommended Order, claims she should) is beyond the scope of the issues before the undersigned.
COPIES FURNISHED:
Pamela Young Chance, Esquire
Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite | 400 |
Miami, Florida 33132 | |
Manny Anon, Jr., Esquire 99 Northwest 183rd Street, Suite | 224 |
North Miami, Florida 33034 | |
Roger C. Cuevas, Superintendent | |
Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308 | |
Honorable Charlie Crist Commissioner 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.
1 At the School Board's request, the testimony of Herman Bain was excluded because of Respondent's prejudicial failure to timely disclose to the School Board (in accordance with the undersigned's Order of Prehearing Instructions) that it intended to present Mr. Bain's testimony at the final hearing. Respondent, though, was given the opportunity to proffer Mr. Bain's testimony.
2 She had previously been employed by the School Board as a Part-Time Food Service Worker from March 7, 1991, to 1995, when she left the employ of the School Board.
3 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
4 Ms. Smith had indicated on her time sheet that she had arrived at work at 7:30 a.m., when, in fact, she had arrived at 7:45 a.m.
5 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
6 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.
7 In those case where the employee is an "educational support employee" who has successfully completed his or her probationary period and where the disciplinary action sought to be taken against the employee is termination, the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes, which provides, in part, as follows:
As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a member of the food service . . . 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.
Although Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract), the provisions of Section 231.3605, Florida Statues, have no application to the instant case because the School Board is not seeking to terminate Respondent.
8 "Gross insubordination" is "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Smith v. School Board of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981).
9 In her Proposed Recommended Order, Respondent argues (for the first time) that she was denied her "Weingarten right" to have union representation at the meeting in Principal Gracia's office. It is true that, under Chapter 447, Part II, Florida Statutes, as construed by the Public Employees Relations Commission (the administrative agency charged with administering its provisions), a public employee has "the right [which is known as a "Weingarten right"] to union representation in an investigatory or disciplinary interview if [the] employee has a reasonable belief that disciplinary action may result from the interview" and that a public employer commits an unfair labor practice if it denies an employee the employee's "Weingarten right." City of Clearwater (Fire Dept.) v. Lewis, 404 So. 2d 1156, 1159 (Fla. 2d DCA 1981). However, even if the School Board (acting through Principal Gracia) committed an unfair labor practice by refusing to allow Mr. Bain to be present at the meeting in Principal Gracia's office that does not excuse Respondent's inappropriate and insubordinate behavior during the meeting. Having decided to attend the meeting, Respondent was under an obligation to conduct herself, during the meeting, in a manner becoming of a School Board employee. (Had Respondent wanted to remedy any such unfair labor practice that may have been committed, she should have filed, within six months, an unfair labor practice charge with the Public Employees Relations Commission, which has exclusive jurisdiction over such matters. See Browning v. Brody, 796 So. 2d 1191, 1192-93 (Fla. 5th DCA 2001)("Case law interpreting the jurisdictional scope of the Act has broadly included, as falling within PERC's exclusive jurisdiction, those activities which 'arguably' constitute unfair labor practices as defined by section 447.501. ");
Maxwell v. School Board of Broward County, 330 So. 2d 177, 180 (Fla. 4th DCA 1976)("In the instant situation there can be no doubt that PERC has exclusive jurisdiction over statutorily enumerated unfair labor practices."); Public Employees Relations Commission v. Fraternal Order of Police, Local Lodge No. 38,
327 So. 2d 43, 45 (Fla. 2d DCA 1976)("It appears to us that the legislature intended for PERC to have exclusive jurisdiction over unfair labor practice questions of the type posed by the City in this case."); and Section 447.503(6)(b), Florida Statutes ("If the commission determines that the alleged unfair
labor practice occurred more than 6 months prior to the filing of the charge, the commission shall issue an order dismissing the case, unless the person filing the charge was prevented from doing so by reason of service in the Armed Forces, in which case the 6-month period shall run from the date of the person's discharge.").)
10 While Respondent may not have left the cafeteria to go to Principal Gracia's office as soon as Principal Gracia might have wanted, Respondent's failure to leave sooner did not constitute gross insubordination.
11 In her Proposed Recommended Order, Respondent claims that she was "disparately treated" because one of her co-workers, Ola Smith, engaged in "misconduct . . . more flagrant and serious, [but] received only a reprimand." Respondent, however, is not similarly situated to Ms. Smith because Respondent has a prior disciplinary record, whereas Ms. Smith, at the time she was disciplined, did not. Cf. State v. A.R.S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden. To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.").
12 Respondent contends in her Proposed Recommended Order that, because she received a verbal warning for her first offense in July of 2000, the maximum disciplinary penalty that she can receive in the instant case is a written warning (acknowledged), which is the "2nd step of discipline" described in Article XI, Section 1.A., of the AFSCME Contract. The argument is unpersuasive inasmuch as it is based upon a misreading of the language in Article XI, Section 1.A., of the AFSCME Contract. See Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000)("Whereas section 102.11 is mandatory (i.e., the Department 'shall' ignore late returns), section
102.112 is permissive (i.e., the Department 'may' ignore late returns, or the Department "may" certify late returns and fine tardy Board members."); Dooley v. State, 789 So. 2d 1082, 1084
(Fla. 1st DCA 2001)("[R]ule 3.170(1) is clearly permissive in that it states a defendant 'may file a motion to withdraw.'"); State v. Thomas, 528 So. 2d 1274, 1275 (Fla. 3d DCA 1988)("As we perceive it, the State's argument is that 'should' is the equivalent of 'shall' and that 'shall' is mandatory. While we acknowledge that 'should' retains its arcane, schoolmarm meaning as a past tense of 'shall,' its modern usage is as the weaker companion to the obligatory 'ought.' Thus, it is said that '[o]ught should be reserved for expressions of necessity, duty, or obligation; should, the weaker word, expresses mere appropriateness, suitability or fittingness.'"); Massey Builders Supply Corp. v. Colgan, 553 S.E. 2d 146, 150 (Va. App.
2001)("The word 'shall' is primarily mandatory, whereas the word 'should' ordinarily implies no more than expediency and is directory only."); and Magnuson v. Grand Forks County, 97 N.W.2d 622, 624 (N.D. 1959)("It does not seem that the word 'should' was used inadvertently. Other instructions on the back of the order contain the more compulsive word 'must,' as for example 'the original of this order must be signed by the recipient or person acting in his behalf and by the vendor.' We construe the word 'should' as used here to be persuasive rather than mandatory.").
13 Whether Respondent should also be "given time and a half for the extra hour that she had [to] staty after work on November 21, 2000" (as Respondent, in her Proposed Recommended Order, claims she should) is beyond the scope of the issues before the undersigned.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 2002 | Agency Final Order | |
| Dec. 07, 2001 | Recommended Order | Inappropriate and insubordinate conduct of non-instructional school board employee (who had a prior disciplinary record) warranted a five-day (not ten-day) suspension. |
