STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

WILLIAM MYERS,

Respondent.

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) Case No. 03-4233

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH), in Fort Myers, Florida, on February 3, 4, and 12, 2004, and by telephone

conference on March 29, 2004.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.

PRELIMINARY STATEMENT

On November 6, 2003, Petitioner suspended Respondent without pay and notified Respondent that Petitioner intended to seek termination of Respondent's employment. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to conduct the administrative hearing.

At the hearing, Petitioner presented the testimony of seven witnesses and submitted 17 exhibits for admission into evidence. Respondent presented the testimony of three witnesses, including Respondent, and submitted 21 exhibits for admission into evidence. The parties submitted one joint exhibit.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the four-volume Transcript of the hearing filed with DOAH on May 27, 2004. Pursuant to a joint request for extension of time, Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on May 24 and 21, 2004.

FINDINGS OF FACT

1. The allegations against Respondent are set forth in the Amended Petition for Termination filed with DOAH on November 10,

   2003 (the petition). In relevant part, the petition alleges that Respondent is guilty of falsifying his application for employment, theft of a rug belonging to his employer, and lying to Petitioner's supervisor about the disposition of the rug.

2. Petitioner was the head custodian at the Sanibel School in Lee County, Florida (the school), from October 15, 2001, until August 19, 2003, when Petitioner suspended Respondent with pay and benefits. The position of head custodian is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2003).

3. Respondent submitted a written application for employment on October 15, 2001. The application required Petitioner to disclose whether Petitioner had ever been convicted, found guilty, or had adjudication withheld in any criminal offense other than a minor traffic violation. The application did not define a minor traffic violation, but expressly stated that a "DUI" is not a minor traffic violation. Respondent answered "no" to the question on the application. Petitioner has not adopted, by rule or non-rule policy, a definition of a minor traffic violation.

4. Local law enforcement officers arrested Respondent for driving under the influence on February 11, 2001. The court did not find Respondent guilty of the charge and did not withhold adjudication. Rather, Respondent pled guilty to reckless

   driving, and the court required Respondent to complete "DUI school."

5. Respondent did not falsify his employment application.

   
   

   Respondent lacked the requisite intent to mislead Petitioner. Petitioner did not define a minor traffic violation on the application or by rule or non-rule policy. Petitioner's PRO does not cite any judicial decisions defining a minor traffic violation.

6. The court did not convict Respondent of the DUI charge, and Respondent believed that reckless driving was a minor traffic violation. Respondent provided fingerprints with his application and agreed to a criminal background screening. Respondent believed that if Petitioner considered the reckless driving conviction to be more than a minor traffic violation, Petitioner would deny the application for employment. Petitioner did not charge Respondent with falsifying his application until almost two years later when Petitioner charged Respondent with stealing an area rug and lying to Petitioner's supervisor.

7. The preponderance of evidence does not support a finding that Respondent stole an area rug from the school (the rug). No finding is made that the rug belonged to the school or that Respondent possessed the knowledge or intent needed for Respondent's actions to satisfy the definition of theft.

8. Some school personnel, including the principal and assistant principal, clearly believed the rug belonged to the school. When Respondent took the rug home after the end of the 2002-2003 school year, the rug was in good condition, had no odor, had no mold, and had no carpet weevils.

9. During the 2002-2003 school year, a teacher at the school mentioned to her students that they needed an area rug for the students to sit on during certain group times in the classroom. A parent of one of the students gave the rug to the teacher to use in the classroom.

10. In some situations, an item donated to a teacher may belong to the teacher. In other situations, the item may belong to the school. Petitioner's PRO includes a proposed finding at paragraph 21 that ownership of donated items is a gray area.

11. Sometime in April or May of 2003, toward the end of the 2002-2003 school year, the teacher told Respondent that she did not intend to keep the rug and was going to place the rug on a table designated for items that teachers and staff no longer wanted. Unwritten school policy authorized teachers and staff to take items on the table for use in their classrooms or to take home items that were not school property because the school was undergoing remodeling.

12. School personnel tagged or affixed a bar code to all school property worth $750 or more. Property of lesser value

    sometimes received tags or bar codes depending on the type of property. School personnel did not tag the rug or affix a bar code to it. The rug did not meet fire code requirements for use in the school.

13. Respondent told the teacher that he might want the rug for his home. The teacher told Respondent, "that would be fine."

14. When the teacher resigned from her employment at the conclusion of the 2002-2003 school year, school personnel gave her an "exit reminder." The exit reminder stated, in relevant part, that items donated to teachers for the classroom are the property of the school and do not belong to the individual teacher.

15. Respondent did not receive the exit reminder that school personnel gave to the teacher when she resigned. The teacher had not received the exit reminder when she told Respondent earlier in the school year that he could take the rug home. It is undisputed that school personnel did not tag the rug or affix a bar code to it.

16. The rug remained on school premises until sometime in July of 2003. While the rug was at the school, Respondent cleaned the rug at the direction of school personnel. The rug remained in the all-purpose room, which also serves as the cafeteria, after Respondent cleaned it.

17. Late in July 2003, Respondent took the rug to his home with the assistance of a custodian under Respondent's supervision. He cut the rug to fit his screened porch. Rain soaked the rug several times. The rug is no longer suitable for the classroom.

18. Respondent lied to the principal and another teacher.

    
    

    When they asked Respondent about the rug on more than one occasion, Respondent stated that the rug had black mold and carpet weevils and that he had thrown it into a garbage dumpster adjacent to the school.

19. The school's principal and assistant principal unsuccessfully attempted to locate the rug in the garbage dumpster. The Principal then referred the matter to district personnel to investigate the matter. District personnel requested an investigation by local law enforcement personnel.

20. Local law enforcement personnel questioned Respondent on August 19, 2003, and recovered the rug. Respondent explained that a teacher at the school had given the rug to him.

21. In August 2004, the teacher provided law enforcement investigators with a sworn statement that she gave the rug to Respondent and that Respondent did not steal the rug. The teacher subsequently contacted school personnel to inform them that she had given the rug to Respondent and that Respondent did not steal the rug. The teacher's testimony at the hearing was

    consistent with her prior statements to law enforcement investigators and to school personnel and was credible and persuasive.

22. Petitioner has not previously disciplined Respondent.

    
    

    However, school personnel have engaged in informal conferences and verbal instruction concerning alleged deficiencies in work performance.

23. Petitioner's expert witness testified by telephone during the administrative hearing. Informal conferences and verbal instructions do not constitute discipline under the collective bargaining agreement with the Support Personnel Association of Lee County (the SPALC agreement).

24. Annual performance assessments have rated Respondent as attaining an effective level of performance in all areas assessed. The assistant principal recommended Respondent for re-employment for the 2002-2003 school year and the next school year. In the annual performance assessment for the 2001-2002 school year, the assistant principal described Respondent as a great asset to the school, self-directed, and self-motivated. In the annual assessment for the 2002-2003 school year, the assistant principal stated that Respondent does a great job for our school, is willing to go "above and beyond," and is flexible and patient.

25. In the fall of 2002, Respondent became a union steward. Between the fall of 2002 and August 17, 2003, Respondent filed three grievances against school personnel. Respondent perceived his work environment as hostile and, rightly or wrongly, viewed the principal and assistant principal as threats to his employment. Respondent lied about taking the rug because, rightly or wrongly, he feared that school personnel would use the rug as a guise for disciplining Respondent or even terminating his employment. On August 19, 2003, Petitioner suspended Respondent with pay and benefits while Petitioner investigated the alleged theft of the rug from the school.

    CONCLUSIONS OF LAW

    
    

26. DOAH has jurisdiction over the parties and the subject matter. § 120.57(1), Fla. Stat. (2003). The parties received adequate notice of the administrative hearing.

27. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d

    476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

28. Petitioner failed to satisfy its burden of proving the charge that Respondent falsified his application for employment.

    The question concerning a minor traffic offense was vague and ambiguous. Any ambiguity is reasonably construed against the author of the document rather than Respondent. Neither the document, Petitioner's rules, Petitioner's non-rule policy, nor any case law cited by Petitioner defines a minor traffic offense. Respondent reasonably believed that reckless driving was a minor traffic offense. Respondent reasonably assumed that if he were incorrect, Petitioner would deny the application for employment. Petitioner failed to show that Respondent intended to mislead Petitioner. See, e.g., Gentile v. Department of

    Professional Regulation, 448 So. 2d 1087, 1090 (Fla. 1st DCA 1984)(remanding for further hearing on whether applicant intended inaccurate information to mislead a licensing agency).

29. Petitioner failed to satisfy its burden of proving the charge that Respondent stole the rug from the school. Petitioner does not define the term "steal" by rule or non-rule policy. The term "stealing" is now encompassed and subsumed in the statutory definition of theft in Section 812.014, Florida Statutes (2003). Daniels v. State, 570 So. 2d 319, 320 (Fla. 2d DCA 1990).

30. In order to show that Respondent stole the rug from the school, Petitioner must show that Respondent knowingly deprived the school of school property with the intent to appropriate the property to Respondent's own use. While

    Respondent clearly intended to use the rug as his own, the preponderance of evidence does not show that the rug was school property rather than the property of the teacher. If it were found that the rug belonged to the school, Petitioner failed to show that Respondent had actual knowledge of the ownership of the rug. Without that knowledge, Respondent lacked the culpable intent required in the definition of theft.

31. Petitioner satisfied its burden of proving the charge that Respondent lied to his supervisor. Respondent admitted at the predetermination conference in the fall of 2003 that he lied to his supervisor.

32. Petitioner failed to show by a preponderance of evidence that termination of Respondent's employment is appropriate. Respondent has no record of prior discipline. Petitioner did not discipline the custodian who assisted Respondent in the alleged theft.

33. Suspension without pay and benefits is an appropriate penalty. Lying to a supervisor about matters that are material to an employee's job duties is serious. Respondent expressly lied when his supervisor asked Respondent about the rug.

34. Several aggravating factors support a penalty greater than the three-day suspension and reinstatement with back pay proposed by Respondent. When school personnel instructed Respondent to clean the rug, they exercised apparent ownership

and control over the rug. Respondent should have known there was a possibility that some school personnel may have believed the rug belonged to the school. Subsequent inquiries from school personnel should have further reinforced Respondent's constructive knowledge of the apparent confusion. As he did when he submitted his application, Respondent remained silent over the apparent ambiguity or confusion rather than affirmatively addressing the issue.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of falsifying his application, not guilty of stealing a rug belonging to the school, and guilty of lying to his supervisor; suspending Respondent without pay and benefits from November 6, 2003, through the date of this Recommended Order; and reinstating Respondent hereafter with pay and benefits.

DONE AND ENTERED this 23rd day of June, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of June, 2004.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3916

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable Jim Horne, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 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: 03-004233

Orders for Case No: 03-004233