STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

MARC S. MORGAN, )

)

Respondent. )

Case No. 03-1334

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on July 23, 2003, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Miami-Dade County School Board 1450 Northeast 2nd Avenue Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169

STATEMENT OF THE ISSUES

Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.

PRELIMINARY STATEMENT

On April 9, 2003, Petitioner voted to suspend without pay Respondent's employment as a custodian and to institute proceedings to terminate his employment. Respondent timely requested a formal hearing to challenge the proposed action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. On May 27, 2003, Petitioner filed its Notice of Specific Charges, which alleged certain facts and, based on those facts, alleged in four counts the grounds for its actions.1 Count I alleged that Respondent was excessively absent, had failed to comply with School Board Rule 6Gx13-4A1.21 pertaining to absences and leaves, and had abandoned his position of employment. Count II alleged that Respondent was guilty of willful neglect of duty. Count IV alleged that Respondent violated School Board Rule 6Gx13-4A-1.21 pertaining to duties and responsibilities of School Board employees. Count V alleged that Respondent's job performance was deficient.

At the final hearing, Petitioner presented the testimony of Cynthia Gracia (principal of Melrose Elementary School) and Barbara Moss (District Director of Petitioner's Office of Professional Standards.) Petitioner offered four exhibits, each of which was accepted into evidence. Respondent testified on his own behalf, and presented the additional testimony of Leanne Perez, his girlfriend. In addition, the parties stipulated as

to the pertinent School Board rules and the pertinent provisions of the collective bargaining agreement (CBA) between Petitioner and American Federation of State, County, and Municipal Employees Local 1184 (AFSCME), Respondent's union.

A Transcript of the proceedings was filed on October 7, 2003. Petitioner filed a Proposed Recommended Order, which has been considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a proposed recommended order.

All statutory citations are to Florida Statutes (2002), unless otherwise indicated.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32.

2. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County.

3. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School.

4. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows:

   1. As used in this section:

      1. "Educational support employee" means any person employed by a district school system . . . 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. 1012.39. . . .

      2. "Employee" means any person employed as an educational support employee.

      (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.

      (b) 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 . . .

      
      

5. At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause."

6. Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows:

   (B) An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall be grounds for termination. . . .

   
   

7. School Board Rule 6Gx13-4E-1.01 provides as follows:

   
   

   Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave.

   
   

8. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows:

   Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board.

   
   

9. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully

   incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices.

10. School Board Rule 6Gx13-4A-1.21 states 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.

    
    

11. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing.

12. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone

    that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information.

13. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16.

14. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite.

15. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence.

16. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows:

    These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options:

    1. Notify the worksite of your intended date of return; or

    2. Effect leave procedures (request for leave [form] attached); or

    3. Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.)

    
    

    You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator.

    
    

17. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum.

18. Respondent testified, credibly, that he did not intend to abandon his employment.

19. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

21. Pursuant to Section 1012.40(2)(b), Petitioner has the authority to discipline Respondent’s employment for the grounds set forth in the CBA. Any such discipline must be for "just cause." The School Board has the burden of proving the allegations in the Notice of Specific Charges by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990). The CBA does not impose a more stringent burden of proof on the School Board.

22. Respondent successfully rebutted Petitioner's evidence that he intended to abandon his job. Respondent is not guilty of the portion of Count I of the Notice of Specific Charges alleging that he abandoned his position.

23. Petitioner proved by a preponderance of the evidence that Respondent was guilty of excessive absenteeism, which constitutes just cause to terminate his employment pursuant to Article XI, Section 4(B) of the CBA. Respondent is guilty of the portion of Count I of the Notice of Specific Charges alleging that he was guilty of excessive absenteeism.

24. Petitioner established by a preponderance of the evidence Respondent's absences from work without authorized leave should be deemed to be willful absences pursuant to School Board Rule 6Gx13-4E-1.01.2 Based on those willful absences and on Respondent's breach of his duty to comply with Petitioner's leave policies, it is concluded that Respondent is guilty of willful neglect of duty as alleged in Count II of the Notice of Specific Charges.

25. Petitioner established that Respondent was arrested and subsequently incarcerated. That evidence, in the absence of any evidence that Respondent was guilty of the underlying offense, does not establish that Respondent violated School Board Rule 6Gx13-4A-1.21, pertaining to employee conduct. Respondent is not guilty of the violation alleged in Count IV of the Notice of Specific Charges.

26. There was insufficient evidence to establish that Respondent's job performance was deficient. Respondent is not guilty of the violation alleged in Count V of the Notice of

Specific Charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in

this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment.

DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 24th day of October, 2003.

ENDNOTES

1/ The Notice of Specific Charges erroneously numbered the counts as Count I, Count II, Count IV, and Count V. There was no Count III.

2/ Respondent's argument that his incarceration constituted an emergency situation within the meaning of School Board Rule 6Gx13-4E-1.01, thereby excusing his compliance with Petitioner's leave policy is without merit. Respondent's failure to communicate with Petitioner between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16 was not explained.

COPIES FURNISHED:

Manny Anon, Jr., Esquire AFSCME Council 79

99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169

Denise Wallace, Esquire

Miami-Dade County School Board 1450 Northeast 2nd Avenue Suite 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent Miami-Dade County School Board

1450 Northeast 2nd Avenue Suite 912

Miami, Florida 33132

Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

315 West Gaines Street 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.

Docket for Case No: 03-001334

Orders for Case No: 03-001334