STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

JIMMIE ALVIN, )

)

Respondent. )

Case No. 03-3515

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on December 15, 2003, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Miami-Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Jimmie Alvin, pro se

916 West 42nd Street, No. 8 Miami Beach, Florida 33140

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired.

PRELIMINARY STATEMENT

By letter dated September 11, 2003, Respondent Jimmie Alvin was informed that Petitioner Miami-Dade County School Board had

suspended him from his job as a School Security Monitor and initiated dismissal proceedings against him. As grounds for terminating Mr. Alvin's employment, Petitioner charged him with excessive absenteeism, engaging in an improper employee-student relationship, and being convicted of a crime involving moral turpitude.

Soon thereafter, Mr. Alvin requested a formal hearing. On September 26, 2003, the matter was referred to the Division of Administrative Hearings, where it was assigned to an Administrative Law Judge.

The undersigned convened the final hearing, as scheduled, on December 15, 2003. Petitioner presented the following witnesses during its case-in-chief: Jeanne Friedman, school principal; Ishmael Samuel, school detective; and Isabel Siblesz, administrator in the Office of Professional Standards.

Petitioner also called Mr. Alvin as an adverse witness. Finally, Petitioner offered Petitioner's Exhibits 1-4, which were received in evidence.

Respondent testified on his own behalf and called no other witnesses. He offered Respondent's Exhibits 1 and 2, which were admitted.

The final hearing transcript was filed on January 6, 2004.

Petitioner filed a Proposed Recommended Order before the deadline established at the close of the hearing, which was

February 16, 2004. Respondent did not file any post-hearing papers.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

Material Historical Facts

1. At all times material to this case, Respondent Jimmie Alvin ("Alvin") was a School Security Monitor in the Miami-Dade County School District ("District").1 From 1989 until September 2003, when Petitioner Miami-Dade County School Board ("Board") suspended him without pay, Alvin worked at Miami Beach Senior High School.

2. During the 2001-02 school year, Alvin failed to show up for work without authorization at least twice, and he was tardy some 28 times. Alvin was disciplined for this poor performance at a conference-for-the-record held on April 25, 2002.

3. Alvin's attendance improved thereafter, and during the 2002-03 school year, he was late for work just six times. Other problems arose, however.

4. In September 2002, a female student accused Alvin of having touched her arm inappropriately while, allegedly, simultaneously calling her a "whore" in front of others. Following the student's complaint, the District charged Alvin with violating the School Board Rule against improper employee-

   student relationships. School detectives investigated the charge and found it "substantiated" on conflicting evidence.

5. At the final hearing in this case, however, Alvin credibly denied the allegations. For its part, the Board offered no persuasive, competent, nonhearsay evidence to prove that Alvin actually committed the acts of which the female student had accused him. Thus, it is determined as a matter of ultimate fact that the evidence fails to establish Alvin's guilt with regard to the charge of engaging in an improper employee- student relationship.

6. On March 3, 2003, Alvin was arrested and charged with possession of cocaine and marijuana with intent to sell. On April 24, 2003, Alvin pleaded "no contest" to the criminal charge and was sentenced to one year's probation.

7. At a conference-for-the-record on May 6, 2003, Alvin was notified that the District would review information concerning his past attendance problems, the alleged improper relationship with a student, and his recent criminal conviction, to determine an appropriate disciplinary response.

8. At its regularly scheduled meeting on September 10, 2003, the Board suspended Alvin without pay pending the termination of his employment for just cause.

9. At all times material, Alvin was a member of United Teachers of Dade ("UTD"), a teachers' union. The conditions of

   Alvin's employment were governed by a collective bargaining agreement referred to in the record as the "UTD Contract."2

   Ultimate Factual Determinations

   
   

10. The undersigned is unable to determine whether, as a matter of ultimate fact, Alvin should be fired for reasons stated in the collective bargaining agreement, because the UTD contract is not in the evidentiary record.3 Therefore, it is determined that the Board has failed to carry its burden of proving the alleged grounds for dismissal by a preponderance of the evidence.

    CONCLUSIONS OF LAW

    
    

11. 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.

12. The Board has the burden of proving the alleged grounds for dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Bd. of Dade County, 571 So. 2d 568,

    569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).

13. The Board is empowered to suspend and dismiss employees "subject to the requirements of" Chapter 1012, Florida Statutes. See § 1012.22(1)(f), Fla. Stat. (emphasis added).

14. Pursuant to Section 1012.40(2)(b), Florida Statutes, the employment status of an "educational support employee" such as Alvin, see endnote 1, must continue "from year to year unless the district school 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 . . . ." (Emphasis added).

    
    

15. In this case, because a collective bargaining agreement does exist, Alvin can be terminated only for reasons stated therein. Such "reasons" are matters of fact that the Board must prove as part of its case-in-chief. Usually this is done by moving the collective bargaining agreement into evidence. Here, however, the Board failed at hearing to introduce the collective bargaining agreement or offer any other competent evidence of its terms.

16. The question whether an employee has deviated from "a standard of conduct is essentially an ultimate finding of fact clearly within the realm of the hearing officer's fact-finding discretion." Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). By statute, the UTD Contract, as the applicable collective bargaining agreement, prescribes the standards against which the undersigned fact-finder must evaluate Alvin's conduct, to determine whether he should be fired. Thus, whether Alvin violated the applicable contractual standard(s) is a

    question of ultimate fact to be decided in the context of each alleged reason for terminating his employment. See McKinney v.

    Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

    
    

    Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

    
    

17. Without knowing the "reasons stated in the collective bargaining agreement" as potential grounds for termination, the undersigned obviously cannot determine, as a matter of ultimate fact, whether Alvin should be terminated. To learn what those reasons are, the undersigned is required to rely "exclusively on the evidence of record and on matters officially recognized." See § 120.57(1)(j), Fla. Stat. (emphasis added). Consequently, unless there is some way for the undersigned, on his own initiative,4 to make the relevant contractual terms part of the evidentiary record, which has been closed for about three months as of this writing, the Board's failure to introduce the UTD Contract (or some competent evidence of its terms5) is fatal to the Board's case.

18. The undersigned has considered reopening the record sua sponte, to allow the Board to offer the UTD Contract into evidence. He has considered also the possibility of taking official recognition of the UTD Contract on his own motion. The undersigned assumes without deciding that either of these alternatives is available to him at his discretion. See Collier Medical Center, Inc. v. State Dept. of Health and Rehabilitative

    Services, 462 So. 2d 83, 86 (Fla. 1st DCA 1985). He has decided, however, not to exercise this presumed discretion in favor of the Board, for four reasons.

19. First, as the court made clear in Collier, receiving additional evidence (or officially recognizing facts) after the evidentiary record has been closed is disfavored and should be avoided. This is because "to allow a party to produce additional evidence after the conclusion of an administrative hearing . . . would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by the Administrative Procedures [sic] Act." Id.6

20. Second, as the Florida Supreme Court has explained, "courts should exercise great caution when using judicial notice. As has been held in this state and elsewhere, judicial notice is not intended to 'fill the vacuum created by the failure of a party to prove an essential fact.'" Huff v. State,

    495 So. 2d 145, 151 (Fla. 1986)(quoting Moore v. Choctawhatchee

    
    

    Electric Co-operative, 196 So. 2d 788, 789 (Fla. 1st DCA 1967)). No less caution should be exercised in deciding whether to take official recognition, sua sponte, of a fact essential to one party's case.

21. Third, the Board will not be authorized to "reopen the record, receive additional evidence and make additional

    findings" when this case is again before the agency for the purpose of entering the final order. See Lawnwood Medical

    Center, Inc. v. Agency for Health Care Administration, 678 So. 2d 421, 425 (Fla. 1st DCA 1996), rev. denied, 690 So. 2d 1299 (Fla. 1997). Nor will the Board be allowed to officially recognize the UTD Contract, because "[o]fficial recognition is not a device for agencies to circumvent the hearing officer's findings of fact by building a new record on which to make findings." Id. Given these circumstances, the undersigned is reluctant to take a discretionary action on his own motion that would look to any objective observer like bending-over-backwards to rescue the Board from its failure to introduce sufficient evidence at hearing.

22. Finally, it is concluded that giving the Board a mulligan here would require the undersigned improperly to assume a patently adversarial posture vis-à-vis Alvin.7 Like it or not, in the American system of justice, neutral judges should not be about the business of thinking up creative ways to excuse a clear failure of proof at the expense of the party who stands to benefit from such failure, even where doing so might permit the judge to decide the case the way it "ought" to be decided.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order:

(a) exonerating Alvin of all charges brought against him in this proceeding; (b) providing that Alvin be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Alvin back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate.

DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida.

S

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 19th day of March, 2004.

ENDNOTES

1/ It is undisputed that Alvin was an "educational support employee" as that term is defined in Section 1012.40(1)(a), Fla. Stat.

2/ Alvin was accompanied by a union representative at the conferences-for-the-record mentioned in the text. UTD did not,

however, provide a lawyer for Alvin in connection with the instant proceeding.

3/ In fact, the UTD contract is not in the larger record of the case, either. See § 120.57(1)(f), Fla. Stat. (enumerating the matters of which the "record in a case" is composed).

4/ The Board, to be clear, has not asked to supplement the record.

5/ As was his right, Alvin did not stipulate to, or voluntarily make any admissions regarding, or gratuitously deny the terms of the UTD Contract. This does not appear to have been a calculated strategy on Alvin's part; indeed, his unschooled "defense" consisted primarily of pleading for mercy and a "second chance." It was not Alvin's burden to make an issue out of the UTD Contract, however, and so there is absolutely no basis for finding, somehow, that the terms of the collective bargaining agreement (which are unknown to the undersigned) were "undisputed" by the parties.

6/ It is immaterial that in this case reopening the record probably would not entail such a "never-ending process," as Alvin, a nonlawyer, would be unlikely to mount a vigorous attack on the newly received evidence. The principle holds regardless——and Alvin is entitled to be treated no differently than if he were represented by the finest lawyer in the state.

7/ Anyone who doubts this should ponder how he or she would view the impartiality of a judge who would do for a litigating opponent that which helping the Board here would require of the undersigned.

COPIES FURNISHED:

Jimmie Alvin

916 West 42nd Street, No. 8 Miami Beach, Florida 33140

Denise Wallace, Esquire

Miami-Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

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

325 West Gaines Street Tallahassee, Florida 32399-0400

Merrett R. Stierheim Interim Superintendent

Miami-Dade County School Board 1450 NE Second Avenue, No. 912

Miami, Florida 33132-1394

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: 03-003515

Orders for Case No: 03-003515