STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 09-6371
)
JESSICA HARRISON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on July 30, 2010, and August 26, 2010, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.
APPEARANCES
For Petitioner: Paul D. Gibbs, Esquire
Carmen Rodriguez, Esquire
Law Offices of Carmen Rodriguez P. A. 15715 South Dixie Highway, Suite 411 Palmetto Bay, Florida 33157-1884
For Respondent: Richard Lee Ruben, Esquire
10761 Southwest 104th Street Miami, Florida 33176
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
PRELIMINARY STATEMENT
On October 30, 2009, James Notter, the Broward County Superintendent of Schools, issued an Administrative Complaint recommending that Respondent be dismissed from her position as a school social worker school based on the following "[s]pecific [c]harges":
Respondent Harrison engaged in falsification of records regarding when and where she was working during the 2008/2009 school year. Specifically, Harrison would report to the South Central Area Student Services that she was in attendance at conferences and at schools while not attending or showing up at her assigned work sites. Additionally, Harrison falsified mileage vouchers.
On March 20, 2009, Harrison was scheduled to attend a conference pursuant to a Temporary Duty Authorization ("TDA") that she had filled out and submitted herself.
On March 20, 2009, at approximately 8:40 a.m., Harrison called in to the Student Services Office to report that she would be in attendance at the conference and her status was entered as TDA. Harrison, however, did not attend the conference, verification of which was obtained from the conference[']s sign in log, as well as Harrison admitting that she did not attend the conference, nor was she logged in as being present at Meadowbrook to work in her "office."
Additionally, Fridays are designated as "office days" for social workers and psychologists so that they may do their paperwork and planning. Harrison had been using an office at Meadowbrook Elementary School, one of her assigned schools, to do her office work on Fridays. The principal of Meadowbrook Elementary (now former principal) maintained a strict sign in policy for all itiner[ant] employees. Harrison herself acknowledged that she would sign in pursuant to this policy "99% of the time." Nonetheless, Harrison only signed in on one Friday between October 2008 and March 2009. The Student Services call log, however, indicated that Harrison was at the school on at least seven (7) of these Fridays during this period. Thus Harrison was reporting to the Student Services that she was at the school when in fact she was not at the school.
Furthermore, in January and February alone, Harrison reported to the Student Services call log that she was at Meadowbrook Elementary on twelve occasions. Harrison failed to sign in at the school on six (6) of these occasions.
Moreover, on February 4, 2009 Harrison reported to the Student Services call log that she was at Tropical Elementary School all day. However, Harrison was absent from Tropical all day on February 4, 2009, a fact which was reported to Dr. Joseph Tamburino, the Area Student Services Coordinator and Harrison's supervisor, by Tropical's principal Erik Anderson.
Additionally, Harrison was falsifying mileage vouchers. Discrepancies were noted in several of Harrison's submitted vouchers. The information contained in the vouchers did not match with the information Harrison provided to the call log upon calling to report her location. Included in these
discrepancies is the February 4, 2009 date that Harrison claims she traveled to Tropical Elementary School, as well as her calling in to report that she was at Tropical all day despite the fact that the School reported that she was absent all day. Harrison could not explain the inconsistencies contained within her vouchers and the call log. Additional instances of inconsistent vouchers are as follows:
Date: January 6, 2009; Voucher Location: Home to SCAO to Home; Student Services Log Location: Meadowbrook*, Office, Home
Date: January 9, 2009; Voucher Location: Home, Meadowbrook, KCW, Everglades, Home; Student Services Log Location: Meadowbrook*, KCW
Date: January 20, 2009; Voucher Location: Home to Everglades to Home; Student Services Log Location: Home Visit, Everglades
Date: February 3, 2009; Voucher Location: Home to Everglades to Home; Student Services Log Location: Meadowbrook, Home Visit, Meadowbrook
Date: February 4, 2009; Voucher Location: Home to Tropical to Home; Student Services Log Location: Tropical
Date: February 6, 2009; Voucher Location: Home to SCAO to Home; Student Services Log Location: Meadowbrook*
Date: February 13, 2009; Voucher Location: Home to SCAO to Home; Student Services Log Location: Home Visit, Meadowbrook*
* Not signed in at Meadowbrook
According to the Administrative Complaint, "through her above- described conduct," Respondent was guilty of "Gross
Insubordination and/or Willful Neglect of Duties," in violation of Section 1012.33, Florida Statutes, and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(4), and "Misconduct in Office," in violation of Section 1012.33, Florida Statutes, and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(3).
Respondent requested "a formal 120 hearing regarding [the Superintendent's] recommendation for termination." Respondent's hearing request was referred to DOAH on November 18, 2010.
On March 25, 2010, Petitioner filed a Motion to Relinquish Jurisdiction, arguing that, "as Respondent has admitted to the factual allegations of falsification of records against her, there is no genuine issue as to any material fact left for determination in this matter." Appended to the motion was a copy of the transcript of the October 5, 2009, "pre-disciplinary conference" at which, as alleged in the motion, Respondent had "admitted to the factual allegations against her concerning the falsification of records." On April 2, 2010, Respondent filed a Response to Petitioner's Motion to Relinquish Jurisdiction opposing the motion. In her response, Respondent asserted, among other things, that "[t]here [was] a genuine dispute as to whether the Respondent in fact falsified records as alleged in the administrative complaint." Oral argument on Petitioner's Motion to Relinquish Jurisdiction was heard on April 14, 2010,
by telephone conference call. During this telephone conference call, the parties sought, and were granted, permission to file post-oral argument supplemental submissions on the issue of whether any admissions made by Respondent regarding her falsification of documents conclusively established that she engaged in such conduct. Pursuant to the agreement of the parties, Petitioner was directed to file its supplemental submission by April 21, 2010, and Respondent was directed to file her supplemental submission by April 28, 2010. Petitioner timely filed its supplemental submission on April 21, 2010.
Respondent, on the other hand, did not timely file any supplemental submission. On April 29, 2010, the undersigned issued an Order Denying Motion to Relinquish Jurisdiction, which provided, in pertinent part, as follows:
Having carefully considered the parties' arguments and submissions, and the record as a whole, the undersigned finds that, notwithstanding Respondent's adoptive admission at the pre-disciplinary conference "concerning [her] falsification of records," there exists a genuine issue of material fact as to this issue. See Dibbs v.
Department of Environmental Protection, No. 94-5409, 1995 Fla. Div. Adm. Hear. LEXIS
4409 *44 (Fla. DOAH 1995)(Recommended Order), quoting from Charles W. Ehrhardt, Florida Evidence, Section 803.18 at 618 (1992 ed.)("'Admissions under section 90.803(18) are dissimilar from judicial admissions made in a pleading or pursuant to Florida Rules of Civil Procedure 1.370.
Those formal admissions are binding in the case, and a party may not offer evidence to
dispute them. However, an admission made under section 90.803(18), which is sometimes called an evidentiary admission, is not conclusive. The evidence is admissible under the [hearsay] exception, and the party who made the out-of-court statement may offer evidence to dispute its truthfulness.'"); see also Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir.
1996)("People sometimes do make mistaken admissions, which is why an extrajudicial admission, not being made with the same deliberateness as a judicial admission, is not conclusive on the issue admitted. But it is evidence."); Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195,
198 (2d Cir. 1929)("When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a party or his agent."); Watson v. Tifton Trading Co., 70 Ga. App. 377, 379 (Ga. App. 1943)("Anything in the testimony of Smith taken in the Wilder case, and by consent admitted in evidence on the hearing in the present case which might indicate that at the time of the accident Watson was an employee of Tifton Trading Company, amounts to no more than an extrajudicial admission, and is not binding as a matter of law. The truth of extrajudicial admissions is a matter for the jury."). Accordingly, Petitioner's Motion to Relinquish Jurisdiction is hereby DENIED.
On June 8, 2010, Respondent filed a Motion to Relinquish Jurisdiction on the ground that "no genuine issues of material fact are left for this [Administrative Law Judge] to determine" inasmuch as an unemployment compensation appeals referee, in an
unappealed decision issued April 19, 2010, found that Petitioner had failed "to prove by a preponderance of competent substantial that [Respondent] was guilty of misconduct connected with [her] work [in the form of falsification of records]" and that Respondent was therefore not "disqualifi[ed] from the receipt of unemployment benefits." Respondent argued that Petitioner "should not be afforded or permitted a 'do over' in this matter." That same day (June 8, 2010), the undersigned issued an Order on Motion to Relinquish Jurisdiction, advising that he would hear argument on the motion at the outset of the scheduled final hearing on June 11, 2010. The final hearing, however, was not held on June 11, 2010, as scheduled. At the request of Petitioner, the hearing was continued2 and rescheduled for
July 30, 2010. Thereafter, on June 15, 2010, Petitioner filed its Response to Respondent's Motion to Relinquish Jurisdiction. The undersigned, on June 21, 2010, issued an Order Denying [Respondent's] Motion to Relinquish Jurisdiction, in which he stated the following:
Having carefully reviewed the Motion to Relinquish Jurisdiction and the Response, the undersigned has determined that further argument on the matter would serve no useful purpose. Upon consideration, Respondent's Motion to Relinquish Jurisdiction is hereby DENIED. See § 443.0315, Fla. Stat. ("Any
finding of fact or law, judgment, conclusion, or final order made by a hearing officer, the commission, or any person with the authority to make findings of fact or
law in any proceeding under this chapter is not conclusive or binding in any separate or subsequent action or proceeding, other than an action or proceeding under this chapter, between an individual and his or her present or prior employer brought before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts."); see also Newberry v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 585 So. 2d 500, 501 (Fla. 3d DCA 1991)("[W]e conclude, as have the first and fourth districts, that 'the doctrines of res judicata or estoppel by judgment are not applicable under the facts of the case where two separate and distinct governmental units independently considered similar factual allegations but for different purposes.'"); Department of Health and Rehabilitative Services v. Vernon, 379 So. 2d 683, 684-685 (Fla. 2d DCA 1980)("The
standard for misconduct contained in the Unemployment Compensation Law is obviously higher than that for just cause under the State Career Service requirements. As a result, the finding by the Unemployment Compensation Appeals Referee that Miss Vernon's acts did not constitute misconduct did not necessarily mean that those acts did not constitute just cause for dismissal as a career service employee. Clearly, then, under the rationale of Gordon the use of the doctrine of estoppel by judgment was inappropriate."); and School Board of Volusia County v. Florio, No. 89-6360, 1990 Fla. Div. Adm. Hear. LEXIS 6291 *10-11 (Fla. DOAH August 20, 1990)(Recommended Order)("The Respondent argues initially that the judgment in a prior unemployment compensation proceeding between the same parties raises the issue of the Board being estopped by judgment from presenting its case to support its decision to terminate the Respondent's employment. This doctrine
cannot be applied when there are different standards of proof in the proceedings.").
As noted above, the final hearing in the instant case was held on July 30, 2010, and August 26, 2010. Four witnesses testified at the hearing: Joseph Tamburino, Erik Anderson, Respondent, and Joaquin Eljaua. In addition to the testimony of these four witnesses, the following exhibits were offered and received into evidence: Petitioner's Exhibits 4, 6, 8, 10
through 12, 15 through 21, 23, 24, and 28 through 33, and
Respondent's Exhibits 1 through 7.3
At the conclusion of the hearing, the undersigned announced on the record that the parties would have 45 days from the date of the filing of the hearing transcript with DOAH to file their proposed recommended orders.
The hearing Transcript (consisting of two volumes) was filed with DOAH on September 29, 2010.
Respondent and Petitioner timely filed their Proposed Recommended Orders on October 29, 2010, and November 12, 2010, respectively.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The Broward County School Board (School Board) is responsible for the operation, control and supervision of all
public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county.
For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades.
Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract.
From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica
should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours."
During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her.
Following the end of the 2006-2007 school year,
Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows:
This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days.
Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007.
Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination.
Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record.
Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents."
Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows:
This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m.
However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours.
This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records.
This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action.
Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record.
Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents."
Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand."
On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows:
As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel.
On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement.
Suggestions to improve your work performance were discussed. These include the following:
* * *
- Specific time of the home visits, including leaving and returning to campus, need to be documented.
During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook).
Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.)
Respondent and the other school social workers and school psychologists working out of the SCO were required to
notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls.
The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows:
Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]).
Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent.
You are expected to be in your assigned school 7.5 hours (same work hours as the teachers).
If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office.
When you are at the Area Office, please be sure that our secretaries log you in.
A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday.
* * *
Mileage vouchers must be submitted within
30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved.
* * *
You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event.
Return to the office at least once a week to handle office duties.
The Area Coordinator monitors the quality of your work and evaluates your performance at least annually.
The Area Coordinator makes all school assignments.
In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated."
During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out."
Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year).
Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4
February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation.
March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school,
or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8
To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to
Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher).
There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log).
On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit.
On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.)
On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades.
On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to
Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.)
On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO.
On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10)
On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff
concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff.
It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them.
Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11
On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows:
This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation.
You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination.
Questions regarding the status of this investigation are to be directed to Joe
Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735.
This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process.
Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation.
As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00"
a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the
teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day.
Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009.
Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows:
A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit.
Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents:
Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance.
Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days.
Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office.
Ms. Harrison allegedly falsified mileage vouchers.
The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.)
The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination.
On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows:
The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination.
Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office,
which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida.
You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation.
Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement.
A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County.
This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida.
Questions regarding this correspondence are to be directed to my office (754)321-0735.
The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were
Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf.
Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report.
During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference":
MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records.
The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination.
Have you received a copy of the investigative report?
MS. HARRISON: Yes.
MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence,
witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation.
Do you understand the purpose of this meeting?
MS. HARRISON: Um-hm. Yes.
MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.?
MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems.
Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms.
Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on.
And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again.
MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison?
MS: HARRISON: I think he summed it up.
MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome.
MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know.
MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks.
MR. NEAL: Okay. Until then you just go back to doing what you have been doing.
MS. HARRISON: Okay.
MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you.
Mr. NEAL: Thank you. (emphasis supplied).15
The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009,
Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had
engaged in).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
"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." § 1001.32(2), Fla. Stat.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.
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." § 447.203(2), Fla. Stat. 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," provided it exercises these powers in a manner that is consistent with the requirements of law. § 447.209, Fla. Stat.
At all times material to the instant case, district school boards have had the right, under Section 1012.33(6)(a), Florida Statutes, to dismiss, for "just cause," school social workers, and other instructional personnel,16 having professional service contracts.
At all times material to the instant case, "just cause," as used Section 1012.33, Florida Statutes, has been legislatively defined (in Subsection (1)(a) of the statute) to include, "but . . . not [be] limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." The "but . . . not limited to" language in the statute makes abundantly clear that the list of things constituting "just cause" was intended by the Legislature to be non-exclusive and that other wrongdoing may also constitute "just cause" for dismissal. See Dietz v. Lee County School Board, 647 So. 2d
217, 218-19 (Fla. 2d DCA 1994)(Blue, J., specially concurring)("We assume that drunkenness and immorality, which are not included in the non-exclusive list of sins [set forth in Section 231.36(1)(a), Florida Statutes (2001), the predecessor of Section 1012.33(1)(a), Florida Statutes] constituting just cause,[17] would also be grounds for dismissal. In
amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion to determine when a teacher may be dismissed during the contract term. . . . I agree with the majority--that the legislature left that determination to the respective wisdom of each school board by providing no definite parameters to the term 'just cause.'").
"Gross insubordination or willful neglect of duty" has been defined "by rule of the State Board of Education" (specifically Florida Administrative Code Rule 6B-4.009(4)18) as follows:
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
"Misconduct in office" has been defined "by rule of the State Board of Education" (specifically Florida Administrative Code Rule 6B-4.009(3)) as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
The Code of Ethics of the Education Profession (as set forth in Florida Administrative Code Rule 6B-1.001) provides as follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
The Principles of Professional Conduct for the Education Profession in Florida (set forth in Florida Administrative Code Rule 6B-1.006) require a school social worker, as part of his or her "[o]bligation to the profession of
education," to "maintain honesty in all professional dealings" and to "not submit fraudulent information on any document in connection with professional activities."
"Misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the school social worker is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's service and effectiveness. In such cases, proof that the social worker engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127, 128-29 (Fla. 2d DCA 2000); Summers v. School
Board of Marion County, 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995); Brevard County School Board v. Jones, No. 06-1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17 (Fla. DOAH June 30, 2006)(Recommended Order)("[T]he need to demonstrate 'impaired effectiveness' is not necessary in instances where the misconduct by a teacher speaks for itself, or it can be inferred from the conduct in question."); and Miami-Dade County School
Board v. Lefkowitz, No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 **23-24 (Fla. DOAH July 31, 2003)(Recommended Order)("The School Board failed to prove by a preponderance of the direct evidence that Mr. Lefkowitz's actions were so serious that they
impaired his effectiveness as a teacher. Nonetheless, based on the findings of fact herein, it may be inferred that
Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami-Dade County public school system.")(citation omitted).
A school social worker's falsification of attendance records and mileage vouchers (as Respondent has been accused of doing in the instant case) is an example of such conduct that "speaks for itself" and constitutes "misconduct in office," as that term is used in Section 1012.33, Florida Statutes.
"[U]nder Florida law, a [district] school board's decision to terminate 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."19 McIntyre v. Seminole County School Board, 779 So. 2d 639, 641 (Fla. 5th DCA 2001).
Pursuant to Section 1012.33(6)(a), Florida Statutes, the hearing may be conducted, "at the district school board's election," either by the district school board itself or by a DOAH administrative law judge (who, following the hearing, makes a recommendation to the district school board).
The teacher must be given written notice of the specific charges prior to the 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, or policy] 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). The teacher may be suspended without pay pending the outcome of the termination proceeding; "but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid." § 1012.33(6)(a), Fla. Stat.
At the termination hearing, the burden is on the district school board to prove the allegations contained in the notice. Unless there is a collective bargaining agreement covering the bargaining unit of which the school social worker is a member that provides otherwise20 (and, contrary to the assertion made by Respondent in her Proposed Recommended Order, there is no record evidence that there exists such a controlling collective bargaining agreement provision in the instant case), the district school board's proof need only meet the preponderance of the evidence standard. See Cisneros v. School
Board of Miami-Dade County, 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the School Board had the burden of proving the allegations of moral turpitude by a preponderance of the evidence."); 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."); and 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."). This burden "is satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'" Florida Department of
Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974).
In determining whether the district school board has met its burden of proof, it is necessary to evaluate the district school board's evidentiary presentation in light of the specific allegation(s) made in the written notice of charges. Due process prohibits a district school board from disciplining a school social worker based on matters not specifically alleged in the notice of charges, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208,
210 (Fla. 4th DCA 2002); Pilla v. School Board of Dade County, 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); and Texton v. Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978).
In the instant case, the Administrative Complaint alleges that there is "just cause" to terminate Respondent's employment as a professional service contract school social worker with the School Board on the grounds that, during the 2008-2009 school year, she engaged in the falsification of attendance records and mileage vouchers (by making various misrepresentations concerning her whereabouts, contrary to directives she had been given by her immediate supervisor,
Mr. Tamburino). According to the Administrative Complaint, this conduct constitutes "misconduct in office," as defined in
Florida Administrative Code Rule 6B-4.009(3), and "gross insubordination or willful neglect of duty," as defined in Florida Administrative Code Rule 6B-4.009(4).
The preponderance of the record evidence (which includes, among other things, Petitioner's adoptive admission that the alleged falsification "was done") establishes that Respondent engaged in the conduct alleged in the Administrative Complaint.21
As a result of her having engaged in this conduct, Respondent is guilty of "misconduct in office," as defined in Florida Administrative Code Rule 6B-4.009(3), and "gross insubordination or willful neglect of duty," as defined in Florida Administrative Code Rule 6B-4.009(4), and the School Board therefore has "just cause," as defined in Section 1012.33(1)(a), Florida Statutes, to dismiss Respondent pursuant to Subsection (6)(a) of the statute.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above.
DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida.
S
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 18th day of November, 2010.
ENDNOTES
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2010).
2 This was the fourth continuance of the final hearing. (The hearing had initially been scheduled to commence on December 16, 2009.)
3 Respondent's Exhibit 6 was subsequently withdrawn by Respondent.
4 See, e.g., Smith v. Secretary, Department of Corrections, No. 8:06-cv-1330-T-17MAP, 2009 U.S. Dist. LEXIS 102882 *38 (M.D. Fla. October 19, 2009)("Smith obviously knew of his own whereabouts after the murder."); Rickard v. Wolfe, No. 3:06-CV- 2753, 2007 U.S. Dist. LEXIS 92447 *13 (N.D. Ohio December 17, 2007)("Moreover, the facts underlying the affidavit were known to the Petitioner at trial; he clearly would have known about his own whereabouts . . . on the night of the murder."); and Newton v. State, Nos. 05-00-01703-CR and 05-00-01704-CR, 2001 Tex. App. LEXIS 6739 *9 (Tex. App. October 9, 2001)("Appellant must be charged with knowledge of his own whereabouts at the time of the offense ").
5 The undersigned has rejected, as unworthy of belief, Respondent's testimony at hearing that she was at Tropical on February 4, 2009, for the entire school day working in the teacher's lounge because her office was being used by a "psychologist . . . from an outside agency."
6 In her testimony at hearing, Respondent claimed that she did not go because she "[d]id not have the money" to pay the $40.00 conference registration fee.
7 Meadowbrook's "sign in/sign out" sheet contains no indication that Respondent was at the school on March 20, 2009.
8 According to Respondent's hearing testimony, which the undersigned has rejected as unworthy of belief, she arrived at Meadowbrook at 8:40 a.m. on March 20, 2009; she so notified the SCO secretarial staff by telephone upon her arrival; she remained at the school for approximately two and a half to three hours until she left for the day to care for her daughter who had become ill at school and needed to be taken home; and she telephoned the SCO secretarial staff to let them know she was leaving the school to go home for the day.
9 Seeking reimbursement was optional, not required.
10 When Respondent reported to the SCO secretarial staff on January 9, 2009, February 6, 2009, and February 13, 2009, that she was at Meadowbrook, she was not being truthful. She, however, was at Meadowbrook on February 3, 2010 (as she reported to the SCO secretarial staff), and signed in on the school's "sign in/sign out sheet that day.
11 These were not the first travel vouchers Mr. Tamburino had received from Respondent that contained entries that did not match "what was on the [C]all [L]og." Mr. Tamburino had returned the previous ones so that Respondent could "correct" them (explaining to her that he was doing so "because there was a discrepancy between what was on the[se] mileage voucher[s] and what was on the [C]all [L]og"). After having these other travel vouchers returned to her, Respondent made the necessary corrections and resubmitted them to Mr. Tamburino.
12 Respondent had a union representative with her when she gave her statement.
13 At the final hearing, however, as noted above, Respondent testified (inconsistently with what she had told Investigator Davidson) that she had stayed at Meadowbrook that day for only approximately two and a half to three hours, not "all day."
14 At the final hearing, however, Respondent testified (inconsistently what she had told Investigator Davidson) that she had signed-in at Meadowbrook "only "a third of the time at most."
15 In her testimony at the final hearing, Respondent did not dispute that these things were said at the October 5, 2009, "pre-disciplinary conference." Rather, she testified that, notwithstanding having been "reassured [by Mr. Neal] that termination never occurred in the school system" and that there was no reason for her to be "concern[ed]" that she was going to
lose her job, she nonetheless was "so intimidated and frightened by what [Mr. Neal had] said [to her] and by the people that were there [at the conference], [she] really d[id]n't know what [had] happened [at the conference] until [she had] read the transcript" of the conference (which was offered and received into evidence as Petitioner's Exhibit 15). This testimony is, in a word, unbelievable, and has not been credited by the undersigned.
Respondent's fabricating testimony (as she did at the final hearing) in an effort to fool the undersigned into believing she did not engage in the wrongdoing with which she is charged is itself evidence of the serious and intentional nature of that wrongdoing. See Wright v. West, 505 U.S. 277, 296 (1992)("And if the jury did disbelieve West, it was further entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt."); Wilson v. United States, 162
U.S. 613, 621 (1896)("The destruction, suppression or fabrication of evidence undoubtedly gives rise to a presumption of guilt to be dealt with by the jury."); United States v. Jocic, 207 F.3d 889, 893 (7th Cir. 2000) ("When a defendant decides to testify and deny the charges against him and the finder of fact thinks he is lying, his untruthful testimony becomes evidence of guilt to add to the other evidence."); United States v. Kaplan, 832 F.2d 676, 687 (1st Cir. 1987)("False exculpatory declarations are relevant to show a guilty state of mind."); United States v. Diehl, 460 F. Supp. 1282, 1297 (D. Tex. 1978)("As to Mr. Diehl's explanation that the $9,000.00 had been received in two separate checks of
$4,500.00 each, false statements made by an accused person to
explain or defend his actions may be regarded by the factfinder as tending to establish consciousness of guilt and hence guilt itself.");and Steggall v. State, 8 S.W.3d 538, 545 (Ark. 2000) (Ark. 2000)("As the State notes, the appellant's attorney conceded on closing arguments that Steggall had shaken Haylee to death. Steggall's attorney argued, however, that he did not 'knowingly' shake her to death. However, Steggall's own conduct in giving different versions of the incidents of April 2, 1998, defy this assertion."); cf. GMC v. McGee, 837 So. 2d 1010, 1035 (Fla. 4th DCA 2002)("Evidence of 'concealment of offensive conduct after it initially occurred is indicative of malice or evil intent sufficient to support punitive damages'").
16 Pursuant to Section 1012.01(2), the term "instructional personnel," as used in Section 1012.33, Florida Statutes, includes school "social workers."
17 "Immorality" was added to the "non-exclusive list of sins" in Section 1012.33(1)(a), Florida Statutes, by Section 28 of Chapter 2008-108, Laws of Florida, effective July 1, 2008.
18 Florida Administrative Code Rule 6B-4.009 "define[s]" the "basis for charges upon which dismissal action against instructional personnel may be pursued."
19 "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); see also School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1231 (Fla. 2009)("No one disputes that a school board is an 'agency' as that term is defined in the APA."); Volusia County School Board v. Volusia Homes Builders Association, 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an agency subject to the Administrative Procedure Act."); and Witgenstein v. School Board of Leon County, 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977)("It was obviously the legislative intent to include local school districts within the operation of Chapter 120.").
20 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. 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, 1997 Fla. Div. Adm. Hear. LEXIS 5185 *13-14 (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.").
21 Respondent's efforts at the final hearing to counter the compelling evidence presented against her were unavailing. She testified on her own behalf (as her lone witness) and gave exculpatory testimony, but she simply was not a credible and trustworthy witness. It appeared to the undersigned that she was more interested in protecting her job than in telling the truth. See Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring)("[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("A jury is free to believe parts of a witness' testimony and disbelieve other parts."); Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); and Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).
COPIES FURNISHED:
Paul D. Gibbs, Esquire Carmen Rodriguez, Esquire
Law Offices of Carmen Rodriguez P. A. 15715 South Dixie Highway, Suite 411 Palmetto Bay, Florida 33157-1884
Richard Lee Ruben, Esquire 10761 Southwest 104th Street Miami, Florida 33176
James F. Notter, Superintendent Broward County School Board
600 Southeast Third Avenue Fort Lauderdale, Florida 33301
Honorable Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 07, 2011 | Agency Final Order | |
| Nov. 18, 2010 | Recommended Order | School Board established that there was "just cause" to terminate school social worker who falsified attendance records and mileage vouchers. |
