The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
Findings Of Fact The petition herein was filed by the Petitioner with PERC on February 11, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated May 3, 1976. (Hearing Officer's Exhibit 2). The City of Boca Raton is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record */ , Page 6). The Petitioner is an employee organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6, 7). The Petitioner has requested recognition as the bargaining agent of employees set out in the petition, and the Public Employer has denied the request. (Stipulation, TR 7). There is no contractual bar to holding an election in this case, and there is no pertinent collective bargaining history which affects the issues in this case. (Stipulation, TR 7, 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer contends that the unit described in the petition is inappropriate, and that the Petitioner has made no appropriate showing of interest with respect to any appropriate collective bargaining unit. The Public Employer's Fire Department is divided into five divisions. The employees in the proposed collective bargaining unit all work under the Administrative Division, and are supervised by an assistant chief. The other divisions are the Training Division, Operations Division, Staff and Line Support Division, and Fire Prevention Division. The Public Employer operates four fire stations. Station No. One is the Department's headquarters. Fire fighters and emergency medical personnel are housed at headquarters as are all communications personnel, including the persons in the proposed collective bargaining unit. None of the persons in the proposed unit are stationed at the Public Employer's other fire stations. Dispatchers and Alarm Operators are supervised either by the Assistant Chief in charge of the Administrative Division, or by the company officer in- charge of the shift at the headquarters station. Dispatchers are not certified fire fighters, and they do not perform the duties of certified fire fighters. Fire fighters work what is called a twenty-four-hour-on, forty-eight-hour-off shift. Dispatchers work an eight-hour shift which revolves so that one or more dispatchers are continuously on duty. Dispatchers and fire fighters have a different pension plan, and different employee benefits. Fire fighters make a larger contribution to theirs pension plan than do dispatchers, and are covered by their plan from the first day of employment. Dispatchers are not covered until after the passage of six months. The City provides hazardous duty insurance for fire fighters, but not for dispatchers. Dispatchers have a six- months probationary period. Fire fighters have a one-year probationary period. Although dispatchers do not perform the work of fire fighters, fire fighters are trained to serve as dispatchers, and do frequently perform the dispatchers' functions. The dispatchers and fire fighters work closely together. There are occasional social functions attended by fire fighters and dispatchers which no other city employees attend. Dispatchers receive the same basic employment benefits that are received by clerical employees of the Public Employer. They have the same pension plan, vacation and sick leave policies, and they serve the same probationary period. Dispatchers and clerical employees receive similar salaries. The only promotions available to dispatchers within the City of Boca Raton would be to clerical positions with a higher pay grade. There are no promotions available within the Fire Department. Dispatchers do not perform typing, filing, and other general clerical duties. Their function is not, however, unique to the City. The Police Department also employs dispatchers, and police and fire dispatchers have the same job description. (Public Employer's Exhibit 7). The Public Employer is presently engaged in collective bargaining with three employee organizations representing three certified bargaining units. There is a unit of "blue collar" employees, a unit of sworn police officers, and a unit of certified fire fighters. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James C. Crossland, Esquire Muller & Mintz, P. A. Suite 600, One Hundred Biscayne Blvd. Miami, Florida 33132 Richard F. Krooss, President Fire Fighters of Boca Raton, No. 1560 Post Office Box 565 Boca Raton, Florida 33432 Curtis L. Mack, Chairman Public Employees Relations Commission Suite 300 - 2003 Apalachee Parkway Tallahassee, Florida 32304 =================================================================
Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities in Miami-Dade County. Respondent is employed by the School Board as a school bus aide. She is currently assigned to the John Schee Transportation Center. Respondent was initially hired by the School Board on September 8, 1992. She was terminated, effective October 31, 1995, for having been absent without authorization for three consecutive days. The School Board rehired Respondent on May 3, 2000, and assigned her to the Northwest Transportation Center. On October 11, 2002, Respondent was given her current assignment at the John Schee Transportation Center. As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides, in pertinent part, as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: . . . . (2) separation, suspension, dismissal, and termination of employees for just cause; . . . . It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. Discipline or discharge of any employee for just cause; . . . . * * * Article XI of the AFSCME Contract is entitled, "Disciplinary Action." Section 1 of Article XI is entitled, "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal.[2] A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (1.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.[3] The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract[,] the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 4 of Article XI is entitled, "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Chief Personnel Officer for Human Resources a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence.[4] Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s], regulation[s], and [p]olic[ies]. If she does not, she may be disciplined pursuant to the AFSCME Contract.5 Among the School Board's "rule[s]" are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. * * * School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." School Board bus drivers and aides are governed by the following "[a]ttendance [p]olicy" set forth in the School Board Transportation Department's Handbook for Drivers, Aides and Operations Staff: Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract. AUTHORIZED ABSENCES For absences to be authorized, they must be reported to the driver's or aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time, but no later than before the next scheduled report time. Even in an emergency, every possible effort must be made to inform the Dispatch Office. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Leave forms must be completed promptly for payroll purposes. UNAUTHORIZED ABSENCES Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver or aide does not report to work within 15 minutes after the scheduled report time, or does not call in absent before the report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. Additionally, any employee who does not have available sick/personal time may be charged with an unauthorized absence. NOTIFICATION OF ABSENCES -Drivers and aides must notify their Transportation Center[']s Dispatch Office as soon as they have determined they cannot report to work. Drivers are not to make arrangements on their own for a substitute. All arrangements must be made by the Dispatch Office. -If a driver will not be reporting for work on regular school days, the driver must call in immediately and speak with the Dispatcher, or the Field Operations Specialist. -If a driver cannot report to work because of an emergency situation, the driver must contact the Dispatch Office as soon as possible. If the situation requires a driver to leave the area, the driver should have a relative or friend contact the office for the driver. -If the absence will occur sometime in the future, the Dispatch Office should be given as much advance notification as possible. -When the Dispatch Office is contacted, an explanation for the absence should be given along with the length of absence and estimated date of return. -If the driver is off from work for more than one day, the driver must contact the office each day, prior to the report time, with a complete update of the situation. The only times the driver does not have to contact the office on a daily basis are as follows: -Admission to a hospital as a patient -Maternity leave -A doctor's work release for a specified number of days -Extended sick leave -Approved leave of absence -Out of town CHECK-IN POLICY -All employees are expected to arrive at work on or before their scheduled report time. -Drivers and aides will be given a five minute grace period to report to work, during which no disciplinary nor financial actions will be taken. For example, if the driver or aide is scheduled to report for work at 6:00 a.m., but signs-in by 6:05 a.m., the driver or aide will be allowed to go out on the assigned route with no repercussions. -Drivers and aides who report to work 6-15 minutes after the scheduled report times will be considered "tardy." Tardy drivers and aides will be permitted to work. However, the dispatch may assign a stand-by or substitute driver or aide to the route of the tardy employee. Drivers and aides who are more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers and aides and will not be allowed to operate their regularly assigned route. For the tardy driver or aide who was replaced by a substitute or stand-by driver or aide, such driver or aide will then be assigned as substitute for other routes needing coverage, as requirements dictate. A record will be kept documenting all tardiness. Lost time will be accumulated for tardiness and employees will be docked pay in 1/2 day increments. -Drivers and aides who report to work 16 or more minutes after the scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on "unauthorized leave-without pay" (ULWOP) and will be subject to disciplinary action in accordance with the American Federation of State, County, and Municipal Employees (AFSCME) Collective Bargaining Agreement -Extenuating circumstances will be evaluated by the Center Director and, upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. DOCUMENTATION It is the responsibility of the drivers and aides to report to the supervisor in order to complete and/or produce all required paperwork related to the absence on the first workday upon return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. During the time she has been assigned to the John Schee Regional Transportation Center, Respondent has had a history of poor attendance, which has adversely impacted the operations of the center. On February 21, 2003, Respondent was issued a verbal warning for an unauthorized absence. On March 20, 2003, Respondent was issued the following written warning regarding her attendance by Dr. Michael Exelbert, a Coordinator III at the John Schee Regional Transportation Center: Payroll records indicate that you have accrued 7 days of Unauthorized Leave Without Pay and/or Tardies. Records indicate you were verbally warned regarding this issue on Feb. 21, 2003. Article V, Section 27 of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Unauthorized Absence - Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI." Article XI, Section 4B of the contract between Miami-Dade County Public Schools and AFSCME 1184 states: "Excessive Absenteeism/Abandonment of Position - An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence." Section 9 of the M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff addresses the department's Attendance Policy. It states: " Drivers and aides are expected to be prompt and punctual in their attendance on all workdays in accordance with the current calendar and their assigned schedule, and their contract." This section addresses: 9.1-Authorized Absences, 9.2-Unauthorized Absences, 9.3- Notification of Absences, and 9.4-Check-In Policy. You are instructed to review this section of your handbook. Deficient performance exhibited by the accrual of unauthorized absences and/or tardiness negatively impacts the department, coworkers and the educational program of the students we serve. This behavior is unacceptable and must be corrected by reporting to duty when scheduled and reporting on time. With this memorandum, you are warned that future occurrences of Unauthorized Absences and/or Tardies will lead to progressive disciplinary action compliant with District policies and procedures and the contract between M-DCPS and AFSCME Local 1184. Be advised M-DCPS has a District Support Agency that may be able to assist you regarding attendance deficiencies and can be reached at . . . . You are encouraged to contact them for assistance in regards to your attendance deficiencies. Please contact me if additional information is required. Respondent signed this written warning, acknowledging receipt thereof, on March 26, 2003. On October 23, 2003, Mr. Exelbert held a conference- for-the-record with Respondent to discuss "attendance requirements." The following day, Mr. Exelbert prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-For-The-Record was held in my office on Thursday, October 23, 2003. You were asked if you were a member of the Union. You indicated that you were, but did not seek representation. Present at the meeting was Cynthia Brown, Bus Attendant, and this administrator. You were told the purpose of today's conference was to review attendance requirements. You were given a copy of the Notification of this Conference-For-The-Record. You acknowledged receiving and signing receipt for today's Conference-For-The-Record. You also received: a copy of all LWOP-U absences since your written warning and a copy of your M-DCPS screen 026 leave status dates. You received a Verbal Warning about your LWOP-U absences on February 21, 2003, and a written warning about you[r] LWOP-U absences on March 20, 2003. During those meeting the following LWOP-U absences were discussed. November 22(D), 2002. December 05(A), 06(D), 09(D), 10(D), 11(D), 20(P), 2002. February 04(P), 06(A), 11(A), 13(A), 14(P), 20(D), 24(D), 25(A), 2003. March 06(A), 10(D), 11(D), 12(D), 13(D), 2003. For today, the following LWOP-U attendance days since the Written Warning on March 20, 2003 were discussed: March 27(A), 2003. April 11(D), 17(A), 21(A), 23(D), 24(D), 2003. May 09, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003 (ALL Days). June 02, 03, 04, 05, 2003 (ALL Days). August 26(A), 29(A), 2003. September 04(A), 05(A), 11(A), 2003. A total of fifty occurrence of LWOP-U The seriousness of missing work and good attendance was discussed. You were given copies of Section 9 (Attendance Policy) from the Handbook of School Bus Drivers, Aides and Operations Staff. You indicated that you would bring documentation to change the unexcused absences of: April 11, 17, 21, 23, 24, 2003, May 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, 30, 2003, June 02, 03, 04, 05, 2003, (due to medical problems that you experienced at those times), and that you could bring in other documentation for: August 26, 29, 2003 and September 04, 05, 11, 2003, as a result of domestic problems you experienced at those time, from unacceptable to LWOP-A. You were asked if you had any other comments. You indicated that by Friday, October 31, 2003, you would bring in additional documentation for other dates listed above. You were told that this case would now be sent to Mr. George C. Millar, Director of the John Schee Regional Transportation Center and possibly to the Office of Jerry Klein, District Director, Department of Transportation Administration for further review. You were told that a summary would be prepared of today's session. You were apprised of your right to append, to clarify, or to explain any information recorded in this conference, by this Summary. You were asked to review this summary on Monday October 27, 2003, after 8:30AM, in Gail Allen, the Executive Secretary's Office. Respondent signed this memorandum, acknowledging receipt thereof, on October 29, 2003. Mr. Exelbert referred Respondent to the School Board's Employee Assistance Program for help in dealing with problems affecting her attendance. George Millar, the Director of the John Schee Regional Transportation Center, held a conference-for-the-record with Respondent on February 13, 2004. On February 17, 2004, Mr. Millar prepared a memorandum in which he summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: * * * CONFERENCE DATA It was stated that over the previous 12- month period, excluding summer, you have accrued 35.5 days of unauthorized absences. It was noted that several days previously unauthorized had been changed to authorized with a current net total of 35.5 days . . . . It was noted that the 35th day does not show on the report because the pay period just closed. A review of the record showed the following incidences attempting to assist you improve your attendance: Verbal Warning - February 21, 2003 Written Warning - March 20, 2003 . . . Conference for the Record - October 23, 2003 . . . . District Support Agency Referral - October 23, 2003 . . . . You were asked to present any additional documentation or response to address the issues presented. You stated that you were ill at the end of last year and you brought documentation. During a portion of that time you were hospitalized. You were instructed to submit documentation and it would be reviewed and considered for changing the identified absences to authorized. Your AFSCME Representatives were asked if they had any comment, Mr. Houghtaling said no. Action Taken The following section of the contract between Miami-Dade County Public Schools and AFSCME Local 1184 and Department of Transportation Handbook were reviewed and you acknowledged understanding their meaning and intent Article V, Section 27 . . . . Article XI, Section 4, Paragraph B . . . . Section 9 Attendance - M-DCPS, Department of Transportation Handbook for Drivers, Aides and Operations Staff . . . . The following instructions were given at the conference: Report for duty each day and shift that you are scheduled to work. Call in or submit a leave card in advance of your reporting time when you intend to be absent. Present documentation for absences not covered by accrued leave time to this administrator or Dr. Michael Exelbert upon your return to duty. Conclusion You were instructed that this conference would be summarized and forwarded to the Administrative Director, Department of Transportation, and the Office of Professional Standards for review and subsequent disciplinary action as merited. You were informed of your right to appendage (provide a written statement), which will be attached to the conference summary if you feel any facts or information is misrepresented or statements omitted which occurred during the conference. You will have 24 hours from receipt of the conference summary to submit this appendage. These statements concluded the conference. Respondent signed this memorandum, acknowledging receipt thereof, on February 24, 2004. Barbara Moss, the School Board's Office of Professional Standards' District Director, held a conference- for-the-record with Respondent on March 16, 2004, to discuss Respondent's absenteeism and her "future employment status" with the School board. In the 12-month period prior to this conference, Respondent had been absent a total of 72 days and had 33.5 days of unauthorized absences. On March 24, 2004, Ms. Moss prepared and furnished Respondent a memorandum in which Ms. Moss summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Ms. Moss wrote the following: Action Taken You were advised of the availability of services from the District's support referral agency. The following directives are herein delineated which were issued to you during the conference concerning future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. George Millar or designee. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Millar or designee upon your return to the site. Failure to comply will result in the absence being recorded as Leave Without Pay, Unauthorized (LWOU). During the conference, you were directed to comply and provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves. You are advised of the high esteem in which employees are held and of the District's concern for any behavior, which adversely affects this level of professionalism. Action TO Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of District Compliance Units, the Administrative Director of Transportation, and the Director of [the] John Schee Transportation Center. Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review with endorsement by the Chief Communications Officer, will compel formal notification of the recommended disciplinary action. All disciplinary actions will be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. You were apprised of your right to clarify, explain, and respond to any information recorded in this conference by this summary, and to have any such response appended to your record. At its June 16, 2004, meeting, the School Board "took action to suspend [Respondent] and initiate dismissal proceedings against [her]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board pursuant Article XI, Section 4B, of the AFSCME Contract. DONE AND ENTERED this 22nd day of March, 2005, 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 22nd day of March, 2005.
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact There have been no significant changes in the organizational structure of the Public Employer since August, 1975. The duties, responsibilities, and day-to-day activities of persons who occupy given job titles within the Public Employer have not changed in any significant respect since August, 1975. The Findings of Fact set out in the Hearing Officer's Report entered on October 20, 1975 have continued vitality, and are hereby incorporated into this report as Findings of Fact as fully as if they were set out in full herein. The Sheriff of Brevard County is an officer who holds his position by virtue of Article VIII, Section 1(d) of the Constitution of the State of Florida. The duties, responsibilities, and powers of the Sheriff of Brevard County are delineated in Florida Statutes Ch. 30. There are no special statutes which alter the provisions of Ch. 30 with respect to the Sheriff of Brevard County. The organizational structure of the Public Employer is accurately described in an organizational chart which was received in evidence at the hearing as Public Employer's Exhibit 8. The organization structure is set out with more detail in a personnel roster which was received in evidence as Public Employer's Exhibit 2. The job descriptions of all job positions within the Public Employer were compiled and presented into evidence as Public Employer's Exhibit 5. The job descriptions accurately reflect the qualifications for each position, and the duties, responsibilities, and day-to-day activities of persons who fill the positions. The duties, responsibilities, and day-to-day activities of the employees are more fully described in the testimony of chief supervisory personnel of each division. 5 The functions of the Public Employer are divided among eleven divisions. The functions are appropriately and efficiently divided in this manner; however, there are features of the Public Employer which make generalizations difficult. A lieutenant in Division Four - Uniform Division has supervisory functions that are very different from the supervisory functions of a lieutenant in another division. Similarly the two sergeants in Division Ten - Headquarters Squad have profound supervisory functions which will not find their equivalent with sergeants in Division Eight - Communications. In defining an appropriate collective bargaining unit, it is important to consider each job title within each division separately. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph R. Moss, Esquire MOSS & HOLCOMB 653 Brevard Avenue Post Office Box 1907 Cocoa, Florida 32922 Phillip Nohrr, Esquire NOHRR & NOHRR Post Office Box 369 Melbourne, Florida 32901 Geoffrey B. Dobson, Esquire 1311 Executive Center Drive Suite 251 Tallahassee, Florida 32301 Curtis L. Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
