STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-8919

)

COREY G. PINKSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, by videoconference in Tallahassee, Florida, on March 7, 2011. The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano

Arianne B. Suarez

Assistant School Board Attorneys The School Board of Miami-Dade

County, Florida

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Jonathan Meltz

The Meltz Law Firm

CCM International Centre 1900 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUES

The issues are whether Petitioner has just cause to take adverse job action against Respondent for his involvement in an Oxycontin® diversion scheme and, if so, whether, under the principles of progressive discipline, Petitioner may terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated August 5, 2010, Petitioner advised Respondent that it had suspended and initiated dismissal proceedings against him for just cause, including violations of Petitioner's rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics.

By letter dated August 20, 2010, Respondent requested a formal hearing. Petitioner then transmitted the file to the Division of Administrative Hearings for a hearing and recommended order.

By Notice of Specific Charges filed September 8, 2010, Petitioner alleged that Respondent was employed by Petitioner as a head custodian. While so employed, Respondent was allegedly arrested in August 2008 and charged with five felony counts of grand theft and two felony counts of racketeering. Following his arrest, Respondent was allegedly allowed to participate in a pretrial diversion program. After he allegedly completed the

program, the charges were dismissed, and the criminal case was closed on April 9, 2010.

The Notice of Specific Charges alleges that, during the investigation, Respondent allegedly signed four affidavits admitting that he had received four Oxycontin® prescriptions from Dr. Ronald Eugene Harris, for which he paid with his private Petitioner-provided insurance. Respondent allegedly told investigators that he had taken some Oxycontin® from the first prescription, but had discontinued taking the medication because it was too strong for him. The Notice of Specific Charges concludes that none of the prescriptions was for a legitimate medical purpose, and Respondent obtained them improperly from Dr. Harris in return for his payment of cash.

The Notice of Specific Charges alleges that Respondent thus committed conduct that did not reflect credit upon himself and the school system, in violation of Petitioner's rule 6Gx13-4A- 1.21; violates various provisions of the Code of Ethics, as set forth in rule 6Gx13-4A-1.213; and constitutes a conflict of interest, in violation of rule 6Gx13-4A-1.212. Based on the foregoing, the Notice of Specific Charges seeks the dismissal of Respondent.

At the hearing, Petitioner called two witnesses, and Respondent did not call any witnesses. Petitioner offered into

evidence Petitioner Exhibits 1-14 and 17-21. Respondent offered into evidence Respondent Exhibit 1. All exhibits were admitted.

The court reporter filed the transcript on April 13, 2011. The parties filed Proposed Recommended Orders by April 27, 2011.

FINDINGS OF FACT

1. Petitioner initially employed Respondent as a custodian in October 2000. He was promoted to lead custodian four and

   one-half years later, and he was promoted to head custodian one year after that. He has had no discipline previously imposed against him.

2. By affidavits submitted during the course of the investigation, Respondent admitted that he obtained four prescriptions from Dr. Ronald Eugene Harris and submitted them to two different pharmacies for filling on October 29, 2003, November 28, 2003, January 29, 2004, and February 27, 2004. Each of the prescriptions was for 90, 80-mg Oxycontin® pills.

3. In addition to these prescriptions, Dr. Harris gave Respondent prescriptions, on or about January 29, 2004, for 60, 2-mg Xanax with two refills and, on or about February 23, 2004, for 60, 2-mg Xanax. Respondent filled both of these prescriptions.

4. In filling these prescriptions, Respondent submitted to the pharmacies his school health insurance to absorb most, if not all, of the cost of these medications.

   
   

5. The bona fides of the Oxycontin® transactions are called into question by two facts. First, Respondent took an Oxycontin® from the first prescription, found it was too strong for him, and never took another pill from this or the subsequent prescriptions that he filled. He never explained why he filled the next three Oxycontin® prescriptions.

6. Arrested on August 4, 2005, Dr. Harris later cooperated in the investigation of the Oxycontin® diversion scheme, of which he had been a part. He admitted essentially that, without an examination or medical determination of necessity, he issued Oxycontin® prescriptions in return for cash. Specifically in Respondent's case, Dr. Harris identified the four Oxycontin® prescriptions mentioned above and admitted that they were not for legitimate medical reasons, but were given in exchange for cash. At the time, the street value of one Oxycontin® in south Florida was $30-$40. Typically, Dr. Harris received $100-$150 for each prescription.

7. At various times, Respondent tried to explain the prescriptions by claiming pain from an earlier injury. The problem is his admission that he did not take the Oxycontin® after taking one from the first prescription. The only reasonable inference is that he obtained the prescriptions for personal gain. Of relevance to this determination is the fact that his mother, with whom he was living at the time, was an

   
   

   unlawful broker of Oxycontin®, so Respondent had ready means to convert his unlawfully obtained Oxycontin® to cash.

8. Over the course of this investigation into the diversion of Oxycontin®, federal and state law enforcement officers arrested 92 persons, including Respondent. Of the 20- plus persons to enter the pretrial diversion program, all but one, Respondent, admitted guilt as a precondition to participation in the program. For reasons that are unclear, Respondent was allowed to participate in the pretrial diversion program without admitting guilt. However, this fact is irrelevant because Respondent was guilty.

9. Respondent completed the pretrial diversion program successfully, and the charges were dismissed in April 2010. However, two or three dozens of the persons participating in this Oxycontin® diversion scheme were Petitioner's employees, and the local media publicized this fact. Because of the involvement of school insurance, this diversion scheme cost Petitioner substantial sums of money. All of the other school employees, except Petitioner, were dismissed or allowed to retire.

10. Article XI, Section I, Paragraph A of the collective bargaining agreement authorizes discipline for the violation of any rule or policy, but requires progressive discipline among the following measures, in ascending order: verbal warning,

    
    

    written warning, letter of reprimand, suspension/demotion, and dismissal. Paragraph C adds: "disciplinary action(s) . . . shall be consistent with the concept and practice of progressive or corrective discipline and . . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record."

11. Offenses involving drugs, fraud, and financial harm are serious matters for school systems, but, if violence were added, this would nearly describe the universe of felonies. Respondent illegally obtained and sold four prescriptions for Oxycontin®, charging a substantial portion of the cost of these drugs to his school insurance. Without doubt he should be punished. But the question is what is the appropriate discipline.

12. Petitioner's Office of Professional Standards witness was unable to distinguish this case from a case from an equally painful period in school district history--around 2006, the purchase of fraudulent academic credits by teachers and administrators seeking higher pay. In Miami-Dade County School Board v. Cook, DOAH Case No. 08-318 (final order issued on June 18, 2008), Petitioner sought (and obtained) only 30 days' unpaid suspension against a principal who submitted fraudulently obtained credentials that would have entitled him to a doctoral pay supplement of $2500 annually. Petitioner's witness

    
    

    initially focused in the present case on the monetary loss to the school district, but the monetary loss in the credentials case was at least as great.

13. Petitioner's approach to the credential cases militates in favor of a lengthy suspension over dismissal in this case. However, as noted in the Conclusions of Law, a suspension of more than 30 days is not available. The proper measure of the harm posed by Respondent's conduct to the school system and its students, as well as the public at large, suggests that, if a substantial suspension of, say, one year is not available, then the appropriate discipline is dismissal.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.

15. Respondent is an "educational support employee."

    
    

    § 1012.40(1)(a), Fla. Stat. Respondent may thus be terminated on any ground stated in the collective bargaining agreement.

    § 1012.40(2)(b), Fla. Stat.

    
    

16. Petitioner rule 6Gx13-4A-1.21 requires employees to conduct themselves "in a manner that will reflect credit upon themselves and the school system." Petitioner rule 6Gx13-4A-

    1.213 imposes the duties of honesty, integrity, and

    
    

    responsibility on all employees, and requires each employee to obey all federal and state laws.

17. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

18. Petitioner has proved that Respondent violated both of these above-cited rules. Given the factors considered in the Findings of Fact, the appropriate discipline would be a suspension of one year plus demotion to base custodian. However, the collective bargaining agreement limits suspensions to 30 days at Article XI, Section 3. When given a choice between merely a 30-day suspension and dismissal, the appropriate discipline is dismissal.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Miami-Dade County School Board enter a final order finding Respondent guilty of violating rules 6Gx13- 4A-1.21 and 6Gx13-4A-1.213 and dismissing him.

DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 27th day of April, 2011.

COPIES FURNISHED:

Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

Jonathan Meltz, Esquire 1900 Southwest Third Avenue Miami, Florida 33129

Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue

Miami, Florida 33132-1308

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, 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: 10-008919TTS

Orders for Case No: 10-008919TTS