vs. ) Case No. 01-3388
MIGUEL A. LOPEZ, JR., )
Respondent. )
Pursuant to notice, a final hearing in the above-styled matter was held on November 16, 2001, in Miami, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Madelyn P. Schere, Esquire
Whether Respondent should be dismissed for deficient performance of his job responsibilities and/or conduct unbecoming a School Board employee.
On August 22, 2001, the School Board of Miami-Dade County, Florida (Petitioner or School Board) acted to suspend Respondent Miguel A. Lopez, Jr., (Respondent or Lopez) and initiate dismissal proceedings against him. Respondent timely requested a hearing in this matter.
Petitioner furnished its Notice of Specific Charges to Respondent on September 7, 2001, alleging that Respondent entered a coworker's computer room, left with an object, and that the coworker's laptop computer was thereafter missing.
At the hearing, Petitioner presented the testimony of: Osvaldo Rodriguez, computer specialist; Kenneth Go, Angel Alfonso, and Rafael Bastos, students; Eduardo Tillet, principal; and Reinaldo Benitez, Executive Director of the Office of Professional Standards (OPS). Petitioner's Exhibits 1 through 8 were admitted into evidence.
Respondent offered one exhibit, which was admitted into evidence, and testified on his own behalf.
The transcript of the hearing was filed on December 10, 2001. The parties timely filed Proposed Recommended Orders which have been carefully considered.
Prior to January 12, 2001, Lopez was a valued employee of the Petitioner, having been employed as a custodian for six
and one-half years. As such, Lopez' employment was subject to terms of the collective bargaining agreement between the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and the School Board.
Lopez had a spotless employment record with the School Board.
Despite having a disabled child, Respondent found time for community service in the form of serving as an officer position in his homeowners' association, a director of the neighborhood crime watch, and working with high risk youth in the Goulds and Perrine areas of Miami-Dade County.
Lopez was held in particularly high esteem by his principal, Eduardo Tillet (Tillet).
Tillet first met Lopez when Tillet was serving as assistant principal at Palmetto Middle School, where Lopez was working as lead custodian.
Upon being promoted to principal at Howard Doolin Middle School (Doolin), Tillet hired Lopez to serve as his head custodian because "I've always been able to rely on him. I
hired him because I felt that I could trust him. "
For two and a half years, Lopez ably served his school and principal.
On January 12, 2001, Lopez arrived at work, as usual, around 6:15 a.m. Following his regular practice, Lopez went to
the school office to turn off the alarm and call in to the district. Then he checked each room.
Also on that date, Doolin's computer specialist, Osvaldo Rodriguez came to work at his usual time between 8:20 and 8:30 a.m.. As was his custom, he went into his office and set up his laptop computer, an item valued at $800-$900. Next, he left his office, locking the door behind him, and went to the main office for approximately 10 to 15 minutes.
Meanwhile, students were gathering in the school corridors, milling about, chatting, and otherwise getting ready to begin their school day.
Lopez' job entails a high degree of autonomy, responsibility and a broad scope of activities. He has overall responsibility for the cleanliness of the school. He handles scheduling for the entire custodial staff. As part of his general staff supervisory responsibilities, he checks each room for cleanliness each morning before the school days begins to ensure that the night custodians have properly done their jobs. Lopez documents this work with an inspection sheet, and, if the inspection reveals that something has been left undone, or done inadequately, Lopez tries to correct the problem.
No evidence reflected negatively upon the performance of Lopez' job duties. Rather, the only act of wrongdoing
alleged to have been committed by Lopez was the theft of Rodriguez' laptop computer.
On the date of the theft, Lopez was in Rodriguez' room twice. The first time was early, in the course of the daily inspection. At that time, Lopez discovered that Rodriguez' trash can was not clean.
Lopez reentered the room, after students had begun to gather but before school began.
Both times, Lopez entered Rodriguez' room with a key.
At the time of the incident, all Doolin custodians had keys to all rooms. After this incident, the issuance of keys was restricted, and custodians were given keys only to those rooms which they were required to enter in the course of their duties.
When Rodriguez returned to his room from the school office, he entered using his key and instantly noticed that his laptop was missing. At first he thought someone had played a joke on him and he looked all over the room for the computer. Then he came to the door and asked students who were in the hall, waiting for classes to begin, if any of them had seen anybody enter his room.
Several students answered that they had seen "the custodian," or "a janitor" go in.
The foregoing facts are essentially undisputed. It is also undisputed that none of the witnesses who testified against
Lopez at the final hearing actually saw him with a laptop. The most any School Board witness could say is that they saw a man enter and leave Rodriguez' room with an object under his arm.
Lopez admits to doing exactly that. Lopez, however, claims that the object was the trash can in which he carries replacement trash bags.
The missing laptop was never found, and there is no evidence revealing what, if any, efforts were made to find it.
On July 13, 2001, a Miami-Dade County jury found Lopez guilty of grand theft in the third degree. Adjudication was withheld and sentence was stayed while the criminal case was appealed. The appeal was pending at the time of the final hearing.
The School Board took action to suspend and dismiss Respondent from employment on August 22, 2001, having observed all statutory and contractual procedural requirements.
The School Board's case depends entirely upon the testimony of the three student witnesses, none of whom saw Lopez with the laptop.
The School Board argues that Rodriguez and the student witnesses had no motive to lie about Lopez. The undersigned accepts this contention, but deems it irrelevant in that Rodriguez claims no personal knowledge of the elements of the
theft, apart from the fact that the laptop was missing, and the students cannot place Lopez in possession of the laptop.
Petitioner contends that Lopez was not responsible for cleaning Rodriguez's room, and thus, presumably, had no reason to be there except to commit the theft. The undersigned rejects this contention because it is supported only by the testimony of Rodriguez, who merely stated that a woman cleans his room at night. This testimony was uncorroborated, and in any event does not conflict with the testimony of Lopez, who states that he reviews the work of all the custodians under him on a daily basis. This testimony is consistent with Lopez' responsibilities in a job at which he had worked successfully for a long time, and is credited by the undersigned.
The School Board argues that guilt may be inferred because Lopez contacted Rodriguez a couple of times saying that he was sorry for "everything that was going on." Lopez and Rodriguez agree that they had a good relationship prior to the time Lopez came under suspicion for the theft. Thus, the ambiguous statements to which Rodriguez imprecisely testified are equally susceptible to the interpretation that Lopez was merely expressing his regret that their relationship, along with his career, was in jeopardy for a crime he did not commit. The School Board acknowledges that at no time did Lopez admit that he had taken the laptop. Neither may guilt be inferred, as
Petitioner argued, from the fact that Lopez could have done a better job telling his side of the story at the May 14, 2001, Conference for the Record. The School Board's evidence on this point establishes only that Lopez received and followed bad advice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.
The law is well settled that because Petitioner seeks only to dismiss Respondent as an employee, not to revoke a license, it need only prove the allegations set forth in the Notice of Specific Charges by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990); McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Coup School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).
The undersigned has carefully considered, and declines, the invitation to ignore established case law and adopt Respondent's view that the School Board should be required to provide "clear and convincing" evidence in support of its charges. The undersigned may not reject the above-cited Florida case law directly on point in favor of the arbitration cases
from other jurisdictions cited in Lopez' Proposed Recommended Order.
In support of Lopez' employment termination, the School Board relies upon the labor contract between the parties, which provides at Article XI, Section 4C, for the dissolution of the employment relationship for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. This basis for termination must fail, because the evidence provided by the School Board's own witnesses established that Lopez was fully performing his job duties.
The School Board also cites School Board Rule 6Gx13- 4A, 1.21, which provides, in pertinent part that:
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. Respondent has failed to conduct himself in a manner that reflects credit upon himself.
In its Proposed Recommended Order, the School Board summarizes its legal argument as follows: "Although Respondent's performance was satisfactory up to this point, he is no longer trusted by the school district. . . ." See Petitioner School Board's Proposed Recommended Order, at page 10, paragraph 6.
The only competent evidence which relates to the question of whether Lopez is or is not trusted by Petitioner was offered by Tillet. The undersigned closely observed the demeanor of Tillet during his hearing testimony, and carefully reviewed the actual words he used with reference to the subject of trust, and concludes that Tillet did nothing more than state the obvious--that an individual with access to School Board property and the personal property of its employees must be trustworthy, and even one incident of theft, if proven, would amply warrant a loss of trust, and termination.
Yet, Tillet refused an invitation from School Board counsel to state that he would no longer trust Lopez as a custodian at Doolin. Instead, he noted that he was "not privy to any of the facts or any of the allegations or statements that any of the kids had brought forth in this criminal hearing. I wasn't there for any of that, to hear any of the testimony. The only thing is I presented my--knowing Miguel [Lopez] as a person, character type of reference, that type of thing."
Likewise, the undersigned was not privy to any of the facts and circumstances resulting in Lopez' criminal conviction, which, at the time of the final hearing, was on appeal.
The School Board suggests that because Lopez was convicted in state court on a reasonable doubt standard, it
follows that it must be more likely than not that he committed the theft of the laptop.
While it is possible to create a legal requirement that the fact of a criminal conviction would automatically result in termination, this is not the course provided for in the statutory and contractual scheme under which Petitioner operates. Rather, as the School Board acknowledges, it is required to demonstrate, by the greater weight of evidence, that Respondent did in fact commit the offense charged.
This it has failed to do on the evidence presented at
the final hearing.
Based on all of the foregoing, it is RECOMMENDED that the School Board enter a final order reinstating Lopez with back pay and benefits.
DONE AND ENTERED this 23rd day of January, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2002.
Madelyn P. Schere, Esquire Miami-Dade County School Board
Merrett R. Stierheim, Superintendent Miami-Dade County School Board
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
James A. Robinson, General Counsel Department of Education
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.
