Findings Of Fact From approximately August, 1978, to August, 1980, Respondent held the position of Director, Department of Federal and State Relations in the Dade County School System. Prior to that, he was the assistant director in that department under the department's prior name. During the period of time that Respondent held positions in that department, a program called the At-Home Program was being purchased by the school system. Continuances of this program were approved by the School Board either Prospectively or retroactively until March, 1978, at which time, upon the recommendation of the then-Superintendent, Dr. Johnny L. Jones, the School Board amended its rules to permit the Superintendent to negotiate purchases of instructional materials without Board action. The At-Home Program continued in the Dade County school system until May, 1980. During the 1977-78 contract year, Respondent approached David Rouen, the owner and operator of the At-Home Program, advised him that the Superintendent of Schools "needed help" and asked whether Mr. Rouen would he able to provide that "help." Solicitations of "help" for Superintendent Jones by Respondent occurred three (3) or four (4) times. Subsequent to the first solicitation however, Dr. Jones contacted Rouen directly, thanked him for his willingness to help and asked how much money Rouen could bring Jones. Rouen subsequently gave Jones cash and gifts amounting to approximately sixty or seventy thousand dollars. Two of the solicitations by Respondent for Jones were made after Jones had started receiving money. Rouen did not believe that Respondent was aware that Jones was already receiving payments and he, therefore, did not pay much attention to the second and third solicitations. He deferred the question by asking Respondent how it could be done or specifically how much money the Superintendent needed. In 1980, Respondent called Rouen early in the morning. Respondent advised that he was calling about the problems in Miami, and Rouen assumed that the Respondent meant the "Gold Plumbing" situation involving criminal charges against Jones. Respondent asked if Rouen could help the Superintendent and stated that the Superintendent was there. Jones then got on the telephone and asked Rouen what he could send. Rouen said he would send a thousand or two. Jones gave Rouen Jones' mother's address to which to forward the funds. Rouen placed the cash in the mail the following day to Jones' mother. During the period of time that Respondent was employed in the Department of Federal and State Relations in the Dade County school system, he received gifts from Rouen, probably as a result of Jones' instruction to Rouen to give Respondent some "trinkets." Respondent received a television set with an approximate value of $89.00 and a radio with an approximate value of $20.00 according to Rouen, the giver of the gifts. Respondent acknowledges acceptance of these gifts. Rouen also gave Respondent a videotape recorder with an approximate value of $300.00 since it was used. On several occasions Respondent offered to pay Rouen for the recorder, and each time Rouen advised Respondent not to he concerned about payment. Between the time that Respondent received the recorder in 1979 and the formal hearing in this cause, Respondent never paid for the recorder. Further, he did not return the recorder when it became apparent that Rouen was not going to accept payment for it. At all times that Respondent accepted gifts from Rouen, he was aware of a School Board rule prohibiting the acceptance of gifts of more than nominal value from School Board vendors. In the fall of 1979, Rouen spoke with Respondent regarding some real property in which Rouen had an interest in Palm Coast, Florida. Rouen indicated that he had been attempting to sell the property, and Respondent stated that possibly he could sell the property for Rouen. Rouen advised that he would pay Respondent a standard fee of ten to fifteen percent for selling the property. The value of the property was between seven and ten thousand dollars. Respondent has no license to sell real estate. Subsequently, Respondent advised Rouen that he had a prospective buyer for Rouen's property, a James Cash. Rouen wrote to Palm Coast in October, 1979, advising that he had sold his property to James Cash and asking that Palm Coast forward whatever documents would he necessary to complete the transaction. Palm Coast responded on October 26, 1979, enclosing assignment papers transferring Rouen's interest in the property to Cash. Palm Coast directed Rouen to have all interested parties sign where indicated, have all signatures witnessed and notarized, and return all copies of the assignment to the Palm Coast office for final processing. Rouen and his wife signed the document and had it notarized in Baltimore, Maryland. The document was then delivered to Respondent. The Reverend James Cash was a friend of Respondent. The two had spoken about Respondent's interest in obtaining some real property, and Cash had previously signed a letter regarding real property transactions at the request of Respondent. At that time Respondent told him that Cash's signature was necessary to save the home of a friend of Respondent. In December, 1979, Respondent again came to Cash about signatures and this time advised Cash that he did not want the document notarized in Dade County. The two traveled to Broward County to have the form notarized there. While Cash did not read the document he did note that it had been previously signed by David Rouen and his wife in Baltimore, Maryland. James Cash signed the form and delivered it to Respondent. Cash was not of the belief that he was purchasing property from David Rouen. He simply signed the documents at his friend's request. At about this time, various well-publicized problems involving Superintendent Jones arose in the Dade County school system and Rouen never heard anything further on the sale of his Palm Coast property. Cash began to read articles in the local newspapers regarding allegedly fraudulent transactions involving Superintendent Jones and David Rouen. Respondent's name was mentioned. Cash became concerned and approached Respondent about the papers that he had signed. Respondent advised him not to worry, that someone had gotten rid of the papers. Cash approached Respondent several times with his concern about the papers, and Respondent eventually refused to talk with him about them. While Director of the Department of Federal and State Relations, Respondent directed and coerced School Board employees to violate School Board administrative directives. In August, 1979, he attempted to obtain a manual check for the payment of several purchase orders issued to the At-Home Program. Harold Wheeler, Supervisor of Accounts Payable and Cost Analysis, refused to authorize the manual check since he questioned whether the goods had been received and whether Respondent had the authority to certify that the goods had been received. Respondent attempted to intimidate Wheeler into ignoring the improper procedures Respondent was utilizing by threatening to report Wheeler to Superintendent Jones. Respondent directed School Board employees at the School Board warehouse to accept goods from the Bhards Publishing Company notwithstanding the fact that copies of the purchase orders for these materials were not provided to the warehouseman. Respondent was advised that there were no copies of the purchase orders and was asked to provide she purchase orders several times. They were never produced. Rather, Respondent went to the receiving warehouse and directed that the materials be shipped to the schools. When Warehouse Supervisor Ben Bowen objected to sending the goods to the schools before being provided with purchase orders, Respondent told Bowen that if Bowen did not comply, Respondent would report him to Superintendent Jones. A similar threat was made to Bowen's superior. When the Bhards materials arrived at the schools, personnel from several of the schools called to advise they had no knowledge they were to receive such materials. One school actually refused delivery. Harold Wheeler and Ben Bowen were both annual contract employees. These employees were reasonably placed in fear of losing, at the least, their jobs by Respondent's threats to them that Respondent would report to Superintendent Jones their refusal to comply with Respondent's orders. The Superintendent of Schools has the power to not reappoint persons on annual contracts. At all time material hereto, School Board Rules 6Gx13-3C-1.09 and 6Gx13-3C-1.14 were in effect and required that all School Board materials and commodities be purchased through the School Board Purchasing Department, which has been designated by the School Board as its official purchasing agent. This is in part so that it can be determined if funds for the purchase are available. No other persons are authorized to make purchases, except in limited circumstances not here applicable. Respondent admits he had no authority to authorize shipping goods without a purchase order, admits he had no authority to permit use of the School Board warehouse by non-School Board companies, and that it is not proper procedure to receive goods without a purchase order being issued for those goods. However, in November, 1979, Respondent told Sanford Hershey, Director of Marketing and Sales for School Board vendor Random House Corporation, to ship six or seven hundred thousand dollars worth of materials to the school system notwithstanding the fact that no purchase orders bad been issued by the school system for these goods. The materials were shipped to the School Board in late November or early December, 1979. They were received in the School Board warehouse in December, 1979. This unauthorized order first came to the attention of the school system when Cellostine Baughan, a purchasing agent in the school system's Purchasing Department, received incomplete requisitions for the materials in late November, 1979. In attempting to resolve the problem, she was advised by Respondent that he had invoices for the goods. The invoices were dated November 28, 1979. This indicated that the goods had been ordered and possibly shipped. The invoices all show that they were issued on a verbal order, and the School Board Purchasing Department did not place an order. After realizing that the material had already been ordered, Baughan issued a purchase order for the goods. The purchase orders were issued January 24, 1980, approximately two (2) months after Respondent verbally obligated the school system for at least six hundred thousand dollars and after the materials had already been delivered to the schools. Although Superintendent Jones had negotiated the contract for the purchase from Random House, his authority to negotiate a contract does not negate the requirement that all purchases, even after a price has been negotiated, must he made through the School Board Purchasing Department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a final order be entered affirming the suspension of Respondent Edwin Demeritte and dismissing Respondent Edwin Demeritte from his employment with the School Board of Dade County, Florida. RECOMMENDED this 12th day of May, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the clerk of the Division of Administrative Hearings this 12th day of May, 1982. COPIES FURNISHED: Phyllis O. Douglas, Esquire Assistant School Board Attorney Room 200 Lindsey Hopkins Building 1410 N.E. Second Avenue Miami, Florida 33132 Jesse J. McCrary, Jr., Esquire 3000 Executive Building Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Clinton J. Pitts, Esquire Hubbart, Pitts and Wilson 19 West Flagler Street 824 Biscayne Building Miami, Florida 33130 Thomas Murray, Esquire 3050 Biscayne Boulevard Miami, Florida 33137 Leonard M. Britton Superintendent of Schools Lindsey Hopkins Building 1410 N.E. Second Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner has just cause to suspend Respondent from her employment as a teacher for three days without pay.
Findings Of Fact Petitioner, the School Board of Manatee County, Florida, ("Petitioner" or "School Board") is responsible for providing public education in Manatee County, Florida. Melissa Graves has been employed with the School District of Manatee County ("District") since August 8, 2000. During the 2008-2009 school year, Ms. Graves was a kindergarten teacher at Gullett Elementary School ("Gullett"). The last day for students that year was June 4, 2009, and the last day for teachers was June 5, 2009. Katherine Hayes was the principal at Gullett. At the end of the school year, Ms. Hayes required all teachers to complete an "End of Year Checklist" ("checklist") and a "Room Prep Check List for Summer Cleaning" ("room prep list"). On May 27, 2009, Ms. Hayes emailed the checklist to all teachers. The list includes such tasks as: taking textbook inventories, returning media center materials, completing end of year report cards, making a final check of cumulative folders, stripping hallway bulletin boards, and completing a room prep list. The checklist was to have been checked off by the responsible person, for example, Ms. Hayes when she received the report cards, and the head custodian when tasks on the room prep list were completed. The deadline was June 5, 2009. On June 1, 2009, Ms. Hayes sent a second email to all teachers with the room prep list attached to give specific instructions on how to prepare classrooms for summer cleaning. In May 2009, Ms. Hayes informed Ms. Graves that she was being reassigned from kindergarten to second grade. Ms. Graves was unhappy about the reassignment and, near the end of the month, the teacher's union filed four grievances against Ms. Hayes on behalf of Ms. Graves. The grievances were dismissed by the Superintendent. Ms. Graves' allegation that her reassignment was in retaliation for the filing of the grievances is not supported by the testimony regarding the dates of the two events. On June 3, 2009, Ms. Hayes sent an email to teachers confirming that thirteen teachers, including Ms. Graves, would be assigned to new grades and, therefore, moving to different classrooms for the 2009-2010 school year. She requested that they coordinate their efforts with teachers who were moving in/out, and told them to contact the head custodian to schedule assistance. On June 5, 2009, Ms. Hayes sent another reminder for teachers to complete the checklist and return it to her before leaving that day for the summer. At the end of the day on June 5, 2009, Ms. Graves and one other teacher, Kim McAfee, who had additional duties checking off teachers' technology checklists, had not completed their own checklists and room prep lists. Both teachers were to return and complete the tasks on January 8, 2009. Ms. McAfee did, but Ms. Graves did not. Ms. Graves testified that, rather than prepare her room on June 5, 2009, she chose to work with Ms. McAfee on an I-Movie project, an end of the year gift she gave to her students' parents that apparently had some defects in the sound. She was also transferring files from one laptop to another. Ms. Graves' technology projects took longer than expected because Ms. McAfee, who was assisting her, was being interrupted by teachers who needed her to verify that they had completed the technology portions of their checklist. Ms. Graves noted that, in an email on May 20, 2009, Ms. Hayes instructed teachers not to "dismantle" their classrooms to avoid disrupting students, but to begin separating personal items from school materials, so that they could take their personal items home. Ms. Graves never "dismantled" her room before the last day; nevertheless, Ms. Graves knew that she did not need to wait until the last day to begin the task. She had been able to prepare her room for the summer in one day for the previous nine years. Ms. Graves also testified that three teacher's aides who came to assist her on the morning of June 5th made a bigger mess and mixed her personal items with school property while she was out of the room. She gave the aides essentially no instructions except to take everything off the walls and pack them. She then returned to her project in Ms. McAfee's room. On June 8, 2009, Ms. Graves, who was teaching summer school classes at another elementary school, assured Ms. Hayes that she would get the room prep task done during the three weeks of summer school by returning each day after summer classes ended, at 1:15 p.m., and working until Gullett closed at 3:15 p.m. Ms. Graves came some but not every day during the three weeks. Ms. Hayes returned from a vacation on June 16 or 17, 2009, and the head custodian informed her that all classrooms were prepared for summer cleaning except Ms. Graves'. Ms. Graves blamed her failure to complete the tasks on rainy weather, her parents' having turned in their rented truck, and car troubles. On July 30, 2009, Ms. Hayes sent Ms. Graves a letter telling her that the classroom had to be prepared for summer cleaning no later than August 6, 2009. Ms. Graves testified that she did not receive the letter until August 5, 2009, and that day she sent Ms. Hayes an email stating that she had just received the letter, but was unable to comply with the deadline because she would be out-of-town until the following week. On August 11, 2009, Ms. Hayes and two custodians packed and cleared Ms. Graves' classroom, and placed her personal items in storage in an empty classroom. They also cleared various items, including toys and books from desks, tables, and the floor, and emptied shelves and unplugged electronic devices. On August 19, 2009, Ms. Hayes sent Ms. Graves a letter instructing her to remove her personal items from storage by the end of the day on August 21, 2009, and she did.
Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
The Issue Whether Respondent engaged in the conduct alleged in the Amended Notice of Specific Charges. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate her employment.
Findings Of Fact Based upon the evidence adduced at 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) in Miami-Dade County, Florida. At all times material to the instant case, personnel at all public secondary schools in Miami-Dade County involved in the expenditure of School Board funds were required to discharge their duties in accordance with the Manual of Internal Accounting for Secondary Schools (Accounting Manual). Among the Accounting Manual's provisions were the following: EXPENDITURE PROCEDURES PURCHASING AND RECEIVING AUTHORIZATION Authorized purchases shall be made in compliance with Florida Statutes, State Board of Education Rules, Board Rules, and administrative directives and manuals. Principal has responsibility for authorizing all internal fund purchases Principal may delegate this authority to another administrator Delegate assignment must be in writing and memorandum retained for audit Principal and his/her delegate will make the following determination before authorizing internal fund purchase Uncommitted funds are available Items to be purchased meet legal requirements governing school purchasing activities Bid requirements have been met Items to be purchased are appropriate for sponsoring account RESTRICTIONS Payment for unauthorized purchase shall be sole responsibility of person placing order School Board employees are prohibited from soliciting personal discounts on merchandise or services from School Board vendors, potential vendors and patrons . . . . FLORIDA SALES TAX RESTRICTION A. Items purchased for which school will claim ownership are exempt from sales tax. . . . BID REQUIREMENTS Lowest bid meeting all specifications must be accepted Competitive quotations may be requested but not required 2. Use of split bids to keep purchases under $1,000 is specifically forbidden Purchases of $1,000 through $6,000 Request at least three quotations which may be obtained in writing or by telephone. Use of split bids to circumvent this regulation is specifically forbidden All quotations must be recorded and filed with documentation for disbursement transaction . . . . CERTIFICATION OF RECEIPT Certification of receipt must be made by person who can certify that merchandise, as specified, has been received or service rendered and that payment is in order A school custodian or office clerk will usually sign delivery ticket for shipping representative Delivery ticket documents delivery only Delivery ticket does not certify "as specified" receipt Employee retaining custody of materials purchased will usually certify receipt "as specified" on vendor invoice Certification of receipt of goods must be forwarded to secretary/treasurer promptly to facilitate timely payment CASH DISBURSEMENTS APPROVAL Approving signature of principal or his/her designee must appear on each of the following documents Purchase order (when appropriate) Check requisition Check Documentation Invoice Vendor's name and address Date of purchase Detail of what was purchased Total obligation Extensions and additions must be checked before payment Invoice must contain signature of employee certifying receipt of goods "as specified" . . . . Order Form 1. Advance payments to commercial vendors usually not permitted. . . . Check Requisition When there is no existing documentation check requisition will include documenting explanation . . . Prohibited (will not be accepted as documentation) Monthly statements Packaging slips TIMELY PAYMENTS Payment must be made within thirty (30) days of receipt of goods unless special arrangements are made with the vendor. Deferred payment agreement must be in writing and retained for audit CHECK REQUISITION Check requisition form must be used to initiate every expenditure from internal funds Check requisition will contain following information Requisition number (check number) Name of school Date Fund to be charged Name of payee Amount Identification of transaction Necessary signatures WRITING OF CHECK (See Section 5-1.2, Recording to Journal and Ledger, for pegboard procedures) Payments must be made to specific person, company, or organization Do not make checks payable to "cash" Do not make checks payable to paying school Do not write check unless all supporting documents and complete information submitted It is the responsibility of secretary/treasurer to attach all pertinent documentation to check requisition prior to submitting check for administrative signature Documentation must include certification of receipt "as specified" or certification of advance payment requirement for government agencies or public institutions Each check issued must be signed by principal or his/her designee and one clerical co-signer After the check is signed by the principal, the invoice will be stamped "paid," and the check number and date indicated . . . . Among the public secondary schools that the School Board operates, controls, and supervises is Booker T. Washington Senior High School. Booker T. Washington Senior High School opened on August 30, 1999. Gloria Evans has been the principal of Booker T. Washington Senior High School since its inception. The site that houses Booker T. Washington Senior High School was, prior to August 30, 1999, occupied by a School Board- operated middle school, Booker T. Washington Middle School. (BTW). Irving Grice served as the principal of BTW from January of 1994 to June of 1998. He was succeeded by Ms. Evans, who was principal of the middle school from July of 1998 to September of 1998. Albert Payne replaced Ms. Evans as principal of BTW in the latter part of September of 1998. Mr. Payne remained the principal of the school until it closed at the end of the 1998-99 school year. At all times material to the instant case, Respondent was employed by the School Board as a secretary/treasurer and assigned to BTW. Respondent is still employed by the School Board as a secretary/treasurer, although she is no longer assigned to BTW. She has been suspended pending the outcome of the instant dismissal proceeding. As a noninstructional employee of the School Board occupying a secretary/treasurer position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract). Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." At all times material to the instant case, it has provided, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent was hired to work at BTW by Mr. Grice. She began working at the school in September of 1997. During the time that she was assigned to BTW, Respondent functioned as BTW's treasurer. (Another employee at the school acted as the school secretary). As BTW's treasurer, Respondent was responsible for processing invoices received from vendors doing business with the school. In those cases in which she determined that payment was warranted, she was required to provide the principal, or the principal's designee, with a completed check requisition form, accompanied by all pertinent supporting documentation, as well as a filled-out check for the principal's, or the principal's designee's, signature. On the check requisition form, the following information had to be furnished: the commodities or services being purchased, the name of the vendor/payee, the dollar amount of the check, the check number, and the internal school fund or account to be charged. After payment was made to the vendor, it was Respondent's responsibility to enter the information concerning the transaction, including the name of the vendor/payee, on a transaction register. Respondent was also responsible for maintaining the paperwork relating to each transaction. She was supposed to keep these documents in a locked file cabinet in her office. Only Respondent, the principal, and an assistant principal had keys to Respondent's office. Only Respondent and the principal had keys to the file cabinet in Respondent's office. BTW maintained a checking account at SunTrust Bank in Miami, Florida (SunTrust). It was from this SunTrust checking account that monies were taken to pay vendors doing business with BTW. Checks written on this account would be honored and cashed by SunTrust only if signed by a school administrator (the principal or the principal's designee) and by a clerical employee at the school (Respondent or the principal's secretary). At all times material to the instant case, the school administrator designated to co-sign BTW checks in lieu of the principal was Eileen Oats, an assistant principal at the school.1 Ms. Oats and Ms. Darling have known each other since the early to mid-1990's when they both worked at Miami Jackson Senior High School (Ms. Oats as a teacher and Respondent in a clerical position). After meeting at Miami Jackson Senior High School (Jackson), the two became friendly; however, when Ms. Oats left Jackson to become an assistant principal at BTW, they lost contact with each other. Their friendship was renewed when Respondent was hired to work at BTW. Respondent and Ms. Oats socialized outside of school during non-work hours. Among other things, they went shopping together at the Famous Garment Corporation's clothing store located at 2220 East 11th Avenue in Hialeah, Florida (Famous Garments). Famous Garments specializes in women's clothing. It sells only women's suits, jackets, and skirts. It does not sell, nor has it sold at any time material to the instant case, office or school supplies. Respondent was a regular customer at Famous Garments during the time that she worked at BTW. She used a lay-away account established in the name of BTW to make personal purchases at Famous Garments (on which she paid no sales tax). The clothing she purchased was paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of the items she purchased (47 women's suits), $3,905.45 was paid for with BTW funds (from BTW's SunTrust checking account). Respondent was able to misappropriate these funds for her personal use by deceiving the administrators who co-signed the BTW checks in question concerning the nature of the items being paid for. Neither the checks themselves, which Respondent wrote, nor the supporting documentation she presented to the administrators, suggested that it was women's clothing that was being purchased. The following were the BTW checks that Respondent gave to Famous Garment Corporation to pay for the suits she purchased (Famous Garments checks): check number 1421, in the amount of $295.00, dated June 5, 1998; check number 1456, in the amount of $239.00, dated May 26, 1998; check number 1552, in the amount of $429.00, dated August 3, 1998; check number 1570, in the amount of $250.00, dated September 1, 1998; check number 1597, in the amount of $250.00, dated October 2, 1998; check number 1668, in the amount of $250.00, dated November 6, 1998; check number 1723, in the amount of $276.00, dated December 14, 1998; check number 1746, in the amount of $248.00, dated January 7, 1999; check number 1773, in the amount of $250.00, dated January 26, 1999; check number 1811, in the amount of $310.00, dated February 12, 1999; check number 1816, in the amount of $327.00, dated February 19, 1999; check number 1890, in the amount of $291.45, dated March 25, 1999; check number 1895, in the amount $211.00, dated March 26, 1999; and check number 1903, in the amount of $279.00, dated March 30, 1999. Respondent's signature appears on the first signature line on each of these checks. Ms. Oats co-signed check numbers 1421, 1552, 1597, 1773, 1811, 1816, 1890, 1895, and 1903. Mr. Grice co-signed check number 1456. Ms. Evans co-signed check number 1570. Mr. Payne co-signed check numbers 1668, 1723, and 1746. Although Respondent presented the Famous Garments checks to Famous Garment Corporation after the checks were co- signed by the principal or the principal's designee, the name "Famous Garment Corporation" does not appear on the "pay to the order of" line on any of the checks. Instead, there are the following names (which were placed there by Respondent): "Famous Corp. Store" (check number 1421); "Famous Inc." (check number 1456); "Famous Corp." (check number 1552); "Famous Corp. Inc." (check number 1570); "Famous Corporation Office" (check number 1597); "Famous Corporation" (check numbers 1668, 1723, and 1890); "Corporation Inc." (check number 1746); "Office Corporation" (check number 1773); "Famous Office Corporation" (check numbers 1811 and 1816); "Famous Office Supplies" (check number 1895); and "Corporation" (check number 1903). Respondent did not indicate on any of the Famous Garments checks, on the space provided for noting the purpose of the payment (the "for" line), that it was "for" women's clothing. Respondent left blank the "for" line on check numbers 1597, 1811, and 1890. On the "for" line on check numbers 1421, 1456, 1552, and 1903, Respondent wrote "office supplies." On the "for" line on check number 1421, she also wrote, in addition to "office supplies," "# 46539," which is the number of the $295.00 invoice 2/ that Famous Garments issued when Respondent used BTW's lay-away account to purchase six women's suits on April 30, 1998. On the "for" line on check numbers 1746 and 1816, Respondent wrote "# 27102" and "# 5462," respectively. (The significance, if any, of these two numbers is unclear.) On the "for" line on the remaining checks, Respondent wrote either "lead teacher" or "lead teachers." During the 1998- 99 school year, classroom teachers employed by the School Board could each purchase, with School Board funds, up to $250.00 worth of supplies for their classrooms under the lead teacher program. To conceal what the Famous Garments checks had actually been used for, Respondent, in making transaction register entries concerning these checks, entered the following fabricated vendor/payee names (none of which, unlike the name of the real recipient of the checks, contained the word "garment"): "Famous Office Corp." (check number 1421), "Famous Office Supplies" (check number 1456), "Famous Corporation" (check numbers 1552 and 1723), "Famous Corp." (check number 1570), "Corporation Office" (check number 1597), "Famous Office" (check number 1668), "Corporation Inc." (check number 1746), "Office Connection Supplies" (check number 1773), "Office Connection" (check numbers 1811 and 1890), "Office Corporation" (check numbers 1816 and 1903), and "Office Supplies" (check number 1895). The Famous Garments checks were endorsed by Famous Garment Corporation and deposited in Famous Garment Corporation's account at Union Planters Bank in Miami, Florida. On or about March 11, 1999, Respondent submitted a Credit Application to Eastbay, Inc., a mail order company that sells athletic apparel and supplies, seeking to open an account in the name of BTW. She signed the application, although she was not authorized to do so. On the application, Respondent indicated that the "ship to name" that Eastbay should use in delivering items purchased through the account was "Mrs. Darling." The BTW account was opened on or about March 11, 1999. Within a couple of days of the opening of the account, Respondent purchased for her personal use four pairs of expensive athletic shoes from Eastbay, the cost of which ($577.91 in total) was billed to the account: Two pairs of the same colored (combination of white, black, and gray) Nike Air Jordans XIV athletic shoes, sizes 10 1/2 and 11 1/2, costing $149.99 each, plus $33.97 for United Parcel Service "next day delivery" shipping, for a total of $333.95; one pair of raisin, pimento, and cream-colored, size 10 1/2, Nike Air Max Plus athletic shoes, costing $124.99, plus $8.99 for shipping, for a total of $133.97; and one pair of orange, black, and white-colored, size 10 1/2, Reebok Fusion 3DMX athletic shoes, for a total cost of $109.99. At the time of these purchases, BTW (whose school colors were orange and black) did not buy athletic shoes for its students. As principal of Booker T. Washington Senior High School, Ms. Evans has authorized the purchase of athletic shoes for members of school teams, but she has never authorized the purchase of shoes costing in excess of $50.00. 3/ The athletic shoes that Respondent purchased from Eastbay were paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of these purchases ($577.91), all but $8.98 was paid for with BTW funds (from BTW's SunTrust checking account). The balance ($8.98) was paid by money order. Respondent wrote and signed two BTW checks, check numbers 1870 and 1882, that she sent to Eastbay, after she had Ms. Oats co-sign them. Check numbers 1870 and 1882 were made out to "East Bay, Inc." and "East Bay," respectively. Ms. Oats was familiar with East Bay. She knew that it sold sporting goods, including athletic footwear. Check number 1870 was in the amount of $333.95. It was dated March 14, 1999. Written on the "for" line of check number 1870 was "001551924," the number of the invoice for the Nike Air Jordans XIV athletic shoes that Respondent had purchased. Check number 1882 was in the amount of $234.98. It was dated March 23, 1999. Written on the "for" line of check number 1882 was "1602572, 1566457," the numbers of the invoices for the Reebok Fusion 3DMX (invoice number 1602572) and Nike Air Max Plus (invoice number 1566457) athletic shoes Respondent had purchased. In making transaction register entries concerning check numbers 1870 and 1882, Respondent entered the following vendor/payee names: "Interscholastic" (check number 1870) and "Eastbay, Inc." (check number 1882). Check numbers 1870 and 1882 were received by Eastbay and deposited in its bank account. On March 12, 1999, Respondent ordered an IBM Aptiva computer from Micro Warehouse. She ordered it in the name of BTW, although it was for her personal use. (Computers used in Miami-Dade County public schools are obtained by the School Board's Purchasing Department, through the solicitation of competitive bids.) On or about March 15, 1999, Respondent sent Micro Warehouse a School Board Internal Funds Purchase Order (purchase order number 004671) that she had prepared, in the amount of $1,167.00, for the computer. The purchase order was signed as "authorized by" Respondent, notwithstanding that she did not have the power to authorize the purchase. On the line for the "originator's signature" was an illegible signature, not that of anyone who was authorized to originate such a purchase order. Written in next to "ship to" were "Booker T. Washington" and "Treasurer." The purchase order indicated that fund 9 was the internal fund or account that would be charged for the purchase. A fund 9 purchase is supposed to be for school equipment or supplies for the day-to-day operation of the school costing no more than $750.00. The computer that Respondent ordered from Micro Warehouse was shipped to BTW on March 15, 1999. BTW was charged (by invoice number E7200041) $1,169.00 for the computer, plus $25.25 for shipping. The computer came with certain software that had been pre-installed (on January 18, 1999). On March 17, 1999, starting at around 10:00 p.m., after Respondent had received the computer, additional software (Microsoft Office and Corel Office) was installed. Voice recognition software (IBM's Via Voice) and telephone answering software (Ring Central) were subsequently loaded on the computer. Respondent used the computer (for her own personal benefit) as an answering machine that answered calls placed to her home telephone number. On March 18, 1999, Respondent ordered from Micro Warehouse, in the name of BTW, another item that was for her personal use. The order she placed this time was for a 17-inch IBM monitor that was compatible with the computer she had previously ordered from Micro Warehouse. The monitor was shipped to BTW later that same day. BTW was charged (by invoice number E7351901) $379.00 for the monitor, plus $17.48 for shipping. Monies in BTW's SunTrust checking account were used to (partially) pay for the computer and monitor that Respondent had purchased from Micro Warehouse. Respondent wrote and signed four BTW checks, check numbers 1877, 1879, 1896, and 1902, totaling $1,327.73, that she sent to Micro Warehouse, after she had Ms. Oats co-sign them. Check number 1877 was made out to "Microwarehouse Supplies." It was in the amount of $383.25 and dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3606623," which was the number that Micro Warehouse had assigned the order she had placed for the computer. Check number 1879 was also made out to "Microwarehouse Supplies." It was in the amount of $396.48 and, like check number 1877, dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3746706," which was the number that Micro Warehouse had assigned the order she had placed for the monitor. Check number 1896 was made out to "Microwarehouse." It was in the amount of $228.00 and dated March 26, 1999. On the "for" line of the check, Respondent wrote "#E7200041," which was number of the invoice for the computer. Check number 1902 was also made out to "Microwarehouse." It was in the amount of $320.00 and, like check number 1896, dated March 26, 1999. On the "for" line of the check, Respondent wrote "42248971," which was number of the invoice for the monitor. In making transaction register entries concerning check numbers 1877, 1879, 1896, and 1902, Respondent entered the following vendor/payee names: "Microwarehouse" (check numbers 1877, 1896, and 1902) and "Microwarehouse Supplies" (check number 1879). Check numbers 1877, 1879, 1896, and 1902 were received by Micro Warehouse and deposited in its Bank of America account. On March 25, 1999, Respondent purchased $237.85 worth of items from the Brickell Village Publix, which were used for her own personal benefit. The items were charged to BTW's account at Publix (customer charge number I-02555383) and paid for with BTW funds (from BTW's SunTrust checking account). The BTW check used to pay Publix Supermarkets, Inc. (check number 1892) was dated March 26, 1999, and in the amount of $395.49. (It covered purchases other than those, described above, that Respondent had made on March 25, 1999.) The check was signed by Respondent and co-signed by Ms. Oats. On the "for" line of the check, Respondent wrote "#2466057, 2555383, 2389160." The completed check requisition form that Respondent presented to Ms. Oats indicated that the science club was the internal fund or account that would be charged for the purchases paid for by check number 1892, even though these purchases were not for the benefit of the science club. (Indeed, the science club did not have authorization to make any purchases at the Brickell Village Publix.) In early April of 1999, during spring break, Mr. Payne went to BTW to check the mail the school had received. Only he and the custodians were present in the building. In going through the mail, Mr. Payne found a bank statement from SunTrust. Enclosed with the bank statement were various cancelled BTW checks. Among the cancelled checks were checks that Respondent had sent to Famous Garments, Eastbay, and Micro Warehouse. Also enclosed with the statement was a receipt for the purchases Respondent had made at the Brickell Village Publix on March 25, 1999. Mr. Payne became suspicious when he saw the Micro Warehouse checks (which were co-signed by Ms. Oats, not Mr. Payne). The previous month (March of 1999), Respondent had asked Mr. Payne to sign a check made out to Micro Warehouse. When Mr. Payne looked at the check requisition form that accompanied the check, he noticed that it did not indicate the "funding structure." He therefore inquired of Respondent which school program was to be charged for the purchase. Respondent had no answer. Neither was she able to name for Mr. Payne the person who had ordered the items being purchased. Given Respondent's failure to satisfactorily respond to his questioning, Mr. Payne refused to sign the check and instead wrote "void" on it. His suspicion aroused, Mr. Payne contacted the School Board's Internal Accounts office. He subsequently spoke to Julio Miranda, a director in the School Board's Office of Management and Compliance Audits, who told him "to make sure [to] hold on to these [cancelled checks that had been enclosed with the bank statement], and all the paperwork and bills." Mr. Miranda advised Mr. Payne that he "would send someone out" to BTW. After spring break, Respondent started coming to work earlier than usual, often before Mr. Payne, and leaving work later than usual. This unusual attendance pattern stopped when the investigative audit at the school, conducted by the School Board's Office of Management and Compliance Audits, began. Claude Remy was the field auditor that Mr. Miranda assigned to work at BTW on the audit. Upon arriving at BTW, Mr. Remy examined the school's transaction register, along with the records that Respondent, as the school's treasurer, was responsible for maintaining concerning purchases made with BTW funds. His examination revealed that there was no supporting documentation for some of the checks listed on the transaction register. The checks without supporting documentation were those (described above) that Respondent had used, without proper authorization, to pay for items she purchased for her personal use (Above-Described Checks). The supporting documentation that she had shown to the school administrators whom she had asked to co-sign these checks was nowhere to be found. Mr. Remy was able to locate supporting documentation for all of the other checks listed on the transaction register, however. 4/ When Mr. Remy asked Respondent where he could find the supporting documentation for the Above-Described Checks, Respondent told him that she did not know, but suggested that Mr. Payne might have removed these documents from her office during spring break. In fact, Mr. Payne had done no such thing. Mr. Payne already had in his possession copies of some of the Above-Described Checks (having received them along with the bank statement that had come in the mail during spring break). At the request of Mr. Remy, he obtained copies of the remaining Above-Described Checks from SunTrust. Mr. Payne, together with Mr. Remy, also contacted Famous Garment Corporation, Eastbay, and Micro Warehouse and asked them to provide any documentation they might have concerning transactions with BTW, a request with which these vendors complied. Mr. Remy questioned Respondent about the Famous Garments checks. Respondent told him that these checks were for "office materials," which, as she knew, was not true. (As noted above, at no time material to the instant case has Famous Garments even sold office materials or supplies.) Mr. Remy also asked Respondent about the athletic shoes that had been purchased from Eastbay. In response to Mr. Remy's inquiry, Respondent claimed that the coach of BTW's basketball team had ordered the shoes along with the uniforms he had ordered. 5/ Mr. Miranda himself visited the school during the course of the audit and interviewed Respondent. During one interview, with respect to the items that had been purchased at the Brickell Village Publix on March 25, 1999 (with BTW funds), Respondent admitted to Mr. Miranda that she had "donat[ed]" some of these items for use at an employee's bridal shower to cover her personal share of the cost of the shower (which she had agreed to assume) and that she had appropriated the remaining ($50.97 worth of) items for her own use. Mr. Miranda had first visited BTW and spoken with Respondent on April 13, 1999. During this initial visit, he talked with Respondent about the Micro Warehouse purchases. He showed her the Micro Warehouse checks that Mr. Payne had found (during spring break) in the envelope containing the bank statement from SunTrust. Mr. Miranda then asked Respondent if she knew anything about these checks. Respondent claimed not to remember what the checks were for. The following day, Thursday, April 14, 1999, Mr. Remy arrived at the school. Upon his arrival, he spoke with Mr. Payne, who told him of the concerns he had regarding the Micro Warehouse checks. Mr. Remy and Mr. Payne contacted Micro Warehouse and were faxed a copy of an invoice that reflected that BTW had purchased an IBM Aptiva computer from Micro Warehouse. The invoice contained, among other things, the serial number of the computer. After obtaining the invoice, Mr. Remy approached Respondent and asked her to show him the computer so that he could make sure that it matched the serial number set forth on the invoice and that it had a property control (PC) number. (Every School Board item costing more than $750.00 must have a PC number.) Respondent claimed that she did not know where the computer was. Mr. Remy, accompanied by Respondent, looked for the computer the remainder of that day (April 14, 1999) and the following day (Friday, April 15, 1999). The computer was not in any of the places that he searched. Upon Mr. Remy's return to BTW the following Monday morning (April 18, 1999), Respondent informed him that the computer had been located. She then took him to the computer, which was in open view in a storage area on the first floor of the school. Mr. Remy had been in this storage area the week before with Respondent and he had not seen the computer. After verifying that the computer's serial number was the same as the serial number on the invoice and noting that the computer did not have a PC number, Mr. Remy contacted Mr. Miranda. Pursuant to Mr. Miranda's instructions, Mr. Remy impounded the computer and transported it to Mr. Miranda's office. While the computer was in his possession, Mr. Miranda asked Marla Berenson, the School Board's Executive Director of Electronic Processing Audits, to look at it and check for signs of "personal usage." Ms. Berenson obtained a keyboard, mouse, monitor, and printer, hooked them up to the computer, and then turned on the computer. She discovered that software typically found on School Board-owned computers was not installed on the computer. Among the programs she noticed on the desktop was Ring Central, a program not typically used by the School Board. She opened a Ring Central file that contained a log of incoming and outgoing telephone calls (log file). The telephone numbers from which the incoming calls were made and the telephone numbers to which the outgoing calls were made, as well as the dates and times of the calls and their duration, were set forth on the log. An examination of the log revealed that the incoming and outgoing calls were made "after normal business hours at the school district." Ms. Berenson printed copies of approximately 50 pages of the log file and gave these copies to Mr. Miranda, when she returned the computer to him. The computer remained in Mr. Miranda's office until June 16, 1999, when Mr. Miranda relinquished possession of the computer to Sergeant Oren Paisant of the School Board's Division of School Police, who had been assigned to investigate the purchasing activities at BTW. Mr. Miranda also provided Sergeant Paisant with the copies of the Ring Central log file that Ms. Berenson had printed for him. Sergeant Paisant obtained telephone records for one the telephone numbers from which, according to the log, an incoming telephone call (answered by the computer) had been placed. An examination of the telephone records revealed that the call in question had been placed to Respondent's home telephone number. With the assistance of a local Florida Department of Law Enforcement (FDLE) agent, Sergeant Paisant removed the hard drive from the computer. He then placed it in a manila envelope and mailed it to the FDLE crime laboratory in Tampa, in care of Brian Criste, a crime laboratory analyst working in FDLE's computer evidence recovery section. Mr. Criste is certified by the State of Florida as a forensic computer evidence recovery analyst. In a letter accompanying the hard drive, Sergeant Paisant advised Mr. Criste that the School Board was interested in finding out if there was anything on the hard drive indicating "personal use" by Respondent. Respondent's name, date of birth, home address, home telephone number, and social security number were set forth in the letter. Mr. Criste searched the computer's hard drive using forensic software ("Encase") specifically developed for this purpose. "Encase" is the "standard software" used by forensic computer evidence recovery analysts in the United States. It is generally accepted as reliable by the analyst community. Mr. Criste himself and his agency have tested "Encase" and determined it to be reliable. "Encase" enables the user to see a "picture of everything that's on that hard drive," without modifying any of its content. Among the things that Mr. Criste saw on (and recovered from) the hard drive he had been sent by Sergeant Paisant was a registration file (named "REG.REG."), created when the Via Voice program was installed, which contained Respondent's name, home address, and home telephone number. He also recovered from the hard drive several sound files. Mr. Criste copied the recovered files on a CD-ROM, which he sent to Sergeant Paisant, along with a forensic image backup of the hard drive. The original hard drive was later returned to Sergeant Paisant. Sergeant Paisant listened to the sound files on the CD-ROM Mr. Criste had sent him. He recognized Respondent's voice on one "outgoing message leaving a greeting for anyone who was calling." He also heard the voices of people (other than Respondent) leaving messages for "Rosy" and, in one instance, for "Rosa or Rosy Darling." On October 7, 1999, following the completion of Sergeant Paisant's investigation, Norman Lindeblad, a District Director in the School Board's Office of Professional Standards (who, on May 7, 1999, had removed Respondent from the BTW school site and given her an alternative work assignment at the Region IV office) conducted a conference-for-the-record with Respondent, at which a copy of Sergeant Paisant's investigative report was presented to and reviewed with Respondent. Respondent was then given the opportunity to respond to the allegations against her. At the conclusion of the conference, Respondent was advised that recommendations for her dismissal would be forthcoming. Such recommendations were subsequently made by Ms. Evans and Ms. Payne to the Region IV office. On November 4, 1999, Mr. Lindeblad conducted a pre- dismissal conference-for-the-record with Respondent. Again, Respondent was given the opportunity to address the allegations against her. On November 17, 1999, the School Board suspended Respondent and initiated a proceeding to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through VI of the Amended Notice. DONE AND ENTERED this 28th day of August, 2000, in Tallahassee, Leon County, Florida. 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 28th day of August, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
The Issue The issue in this case is whether Respondent's intended contract award pursuant to Invitation to Bid No. SDOC-11-B-049- CJ for ready-mix concrete is contrary to Respondent's governing statutes, Respondent's rules or policies, or the solicitation specifications.
Findings Of Fact In October 2010, the School District issued an invitation to bid for ready-mix concrete (the original ITB). The only bidder who submitted a bid in response to the original ITB was Bedrock. Bedrock had had the concrete contract with the School District for the prior three years and had used a front discharge delivery method. On December 7, 2010, Cindy Hartig (Ms. Hartig) and Michael Grego (Mr. Grego), who at the time was the superintendent of the School District, had a conversation concerning the award of the concrete contract to Bedrock pursuant to the original ITB. Mr. Grego testified that Ms. Hartig told him that the School Board would not support a recommendation to award the contract to Bedrock. Mr. Grego further testified that when he asked Ms. Hartig how she knew that the School Board would not support an award to Bedrock, she did not say how she knew. Ms. Hartig testified that Mr. Grego told her that he had polled the School Board members and that they advised they would not support an award of a contract to Bedrock. Having considered the testimony of Mr. Grego and Ms. Hartig, the testimony of Mr. Grego is more credible. On December 7, 2010, prior to the School Board meeting in which the School Board considered the original ITB, Ms. Hartig sent an email to Mr. Grego and Cheryl Olson (Ms. Olson), who was the director of purchasing for the School District. The email stated: Team, An ex board member works for bedrock An ex board member is building the house for the owner of bedrock Bedrock is only one of two companies that have front discharge trucks And reality is the front discharge is not needed, most CM's will not use them Please re look at the requirements for this bid prior to rebid Also make sure that each company is getting the vendor request and that it is not in their spam thank you cindy lou The former board member to whom Ms. Hartig was referring was John McKay (Mr. McKay). There had been friction between Ms. Hartig and Mr. McKay in the past. At the School Board meeting on December 7, 2010, the School Board voted to reject all bids for the original ITB. The reasoning for rejecting all bids was not apparent from the minutes of the School Board meeting. There was no evidence presented that the School Board, as a whole, was biased against Bedrock or that Ms. Hartig had influenced the School Board to reject all bids. On December 10, 2010, the School District issued the rebid ITB, which allowed the vendors to bid front and rear discharge methods of delivery. It was felt that having both front and rear delivery would give the maintenance staff an opportunity to choose the method they wanted to use on a job-by- job basis. The rebid ITB includes a bid submittal form on which the bidders are to submit their prices. There are 15 separate line items on which the bidders may submit a bid. Line items 1 and 2 are for delivery of ready-mix concrete using a front discharge cement truck. Line items 3 and 4 are for delivery of ready-mix concrete using a rear discharge cement truck. The rebid ITB did not specify whether the bidders had to submit a price for each line item in order to be deemed responsive. Paragraph 25, on page 2 of 29 of the rebid ITB states: AWARD: As the best interests of the School Board may require, the School Board reserves the right to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical basis and/or on a district wide basis with one or more supplier(s) or provider(s); to reject any and all offers or waive any minor irregularity or technicality in offers received. Offerors are cautioned to make no assumptions unless their offer has been evaluated as being responsive. Any and all award(s) made as a result of this invitation shall conform to applicable School Board Rules, State Board Rules, and State of Florida Statutes. Page 3 of 39 of the rebid ITB provides: "THE SCHOOL BOARD RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS, TO WAIVE ANY INFORMALITIES, AND TO ACCEPT ALL OR ANY PART OF ANY OFFER AS MAY BE DEEMED TO BE IN THE BEST INTEREST OF THE SCHOOL BOARD." Section 2.09 of the rebid ITB provides: The School Board reserves the right to award the contract to the bidder(s) that the Board deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The Board is therefore not bound to accept a bid on the basis of lowest price. In addition, the Board has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids to waive any and all information and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the Board to do so. The Board also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the Board's best interest. Section 2.42 of the rebid ITB provides: "The School Board reserves the right to award one or more contracts to provide the required services as deemed to be in the best interest of the School Board." Section 2.11 of the rebid ITB defines "responsive and responsible" as follows: Each bid submittal shall be evaluated for conformance as responsive and responsible using the following criteria: Proper submittal of ALL documentation as required by this bid. (Responsive) The greatest benefits to the School District as it pertains to: (Responsible) Total Cost. Delivery. Past Performance. In order to evaluate past performance, all bidders are required to submit: A list of references with the bid and; A list of relevant projects completed within the last 3 years that are the same or similar to the magnitude of this ITB. All technical specifications associated with this bid. Financial Stability: Demonstrated ability, capacity and/or resources to acquire and maintain required staffing. Bidders are reminded that award may not necessarily be made to the lowest bid. Rather, award will be made to lowest responsive, responsible, bidder whose bid represents the best overall value to the School District when considering all evaluation factors. Two vendors, Bedrock and Prestige, submitted bids in response to the rebid ITB. Bedrock does not have the capability to provide concrete with rear delivery trucks. Therefore, Bedrock did not submit a bid for concrete delivered by rear discharge trucks. Bedrock submitted a bid for concrete delivered with front discharge trucks. Bedrock's total bid price was $74,887.50. Prestige's bid was for concrete delivered by rear discharge trucks. Prestige did not submit a price for concrete delivered by front discharge trucks. Prestige's total bid price was $70,300.00. The bid tabulation was posted on January 18, 2011. Staff of the School District made a recommendation to the School Board to award the front discharge portion of the rebid ITB to Bedrock and to award the rear discharge portion to Prestige. The recommendation was placed on the agenda for the School Board meeting scheduled for February 1, 2011. There was a discussion among the School Board members concerning notification to the vendors. Thomas Long (Mr. Long) became a School Board member in November 2010. He was concerned by the lack of response to the original ITB and, on January 27, 2011, requested Ms. Olson to send him a list of local vendors who did not respond to the rebid ITB. The purpose of the communication was to learn why vendors were not submitting bids. He contacted one vendor who did not submit a bid, but he did not contact either Bedrock or Prestige. The communication would have had to have been made after he received the list of vendors on January 28, 2011. Section 7.70 I. G. of the School Board Policy Manual provides: Vendors, contractors, consultants, or their representatives shall not meet with, speak individually with, or otherwise communicate with School Board members, the Superintendent, or School District Staff, other than the designated purchasing agent, and School Board members, the Superintendent, or School District staff, other than the designated purchasing agent shall not meet with, speak individually with, or otherwise communicate with vendors, contractors, consultants, or their representatives, about potential contracts with the School Board once an invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualification has been issued. Any such communication shall disqualify the vendor, contractor, or consultant from responding to the subject invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualifications. At the February 1, 2011, School Board meeting, the School Board voted to appoint Scott Stegall (Mr. Stegall) as the new chief facilities officer for the School District. The School Board also voted to table the issue of the concrete contract in order to give Mr. Stegall an opportunity to review the procurement. Mr. Stegall did review the procurement and recommended that the contract award be split between Bedrock and Prestige. There was no difference between the quality of the concrete whether it was delivery by a front discharge truck or a rear discharge truck. Whether it would be more efficient to use a front discharge versus a rear discharge method of delivery would depend on the job for which the concrete was ordered. The recommendation to split the award of the concrete contract was placed on the agenda for the School Board meeting scheduled for March 1, 2011. Five School Board members were present for the School Board meeting of March 1, 2011. Four School Board members voted to reject the staff recommendation and to award the contract to Prestige. One School Board member voted against awarding the contract to Prestige. Thus, the School Board's intended award of the contract was to Prestige.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended award to Prestige was not contrary to the School Board's governing statutes, the School Board's policies or rules, or the rebid ITB and that the intended award to Prestige was not clearly erroneous, arbitrary, capricious, or contrary to competition. DONE AND ENTERED this 16th day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2011.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2016.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Sharon L. Pennington, contends that in September 1994, Respondent, School Board of Lake County (School Board), failed to accommodate her handicap, and it then unlawfully terminated her from employment as a food service assistant on account of her hearing disability. The School Board denies the charges and contends instead that it offered Petitioner an alternative position in the school cafeteria, but when Petitioner never responded to that offer, and she failed to report to work, it terminated her from employment. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which regretably took more than three years to complete, the Commission issued a Notice of Determination: No Cause on April 27, 1998. Petitioner, who is now forty-six years of age, suffered from hearing loss due to an episode of the measles at age three. She has worn a hearing aid in her left ear since the fifth grade and hearing aids in both ears since 1976. In 1993, she was diagnosed as having profound hearing loss. As such, she is a handicapped person within the meaning of the law. However, she did not disclose this handicap to her employer until 1994. Petitioner began working part-time for the School Board in September 1984 as a food service assistant in the cafeteria at Fruitland Park Elementary School in Fruitland Park, Florida. She became a full-time employee in 1986 and continued working in that capacity until her termination on September 13, 1994. Although not specifically established at hearing, it can be reasonably inferred from the evidence that the School Board employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. On January 5, 1994, Petitioner was given a leave of absence from work due to a back injury suffered while lifting a box of vegetables. She filed a worker's compensation claim and remained out of work due to that injury until March 21, 1994. While investigating that injury, the School Board learned for the first time that Petitioner had a hearing disability. Although her treating physician authorized her to return to work on March 21, 1994, Petitioner requested a second medical leave of absence for the remainder of "this school year" due to "loss of hearing in both ears." She supplied a note from a doctor to this effect. On May 10, 1994, the principal of the school, Ted Wolf, authorized Petitioner to take unpaid leave from March 7 through May 31, 1994, or the remainder of the 1993-94 school year. Petitioner contends that the School Board misunderstood the note from her doctor, and that he intended that she be allowed to take a leave of absence for not only the remainder of school year 1993-94, but also for the entire school year 1994-95. There is nothing of evidence to support this contention, and the doctor's note stipulated into evidence suggests otherwise. On April 25, 1994, Petitioner sent the following letter to Craig Longacre, risk manager for the School Board: I am writing to you to let you know I do plan to return to work this fall. However, I am still interested in the Jack Rabbit Job. Should a position ever does [sic] come open, I do hope that you will keep me in mind as I do know I can do that job. I'm an honest person, perhaps too honest. I'm trustworthy, I do my job. I've been interviewed with Vocational Rehab. last Thurs, 4-20-94. Mrs. Bateman explained to me that whomever hires me regardless of my hearing disability and they give me a job, they would get a tax credit for employing me. I will remain at Fruitland Pk. Elem. Cafeteria until I hear from you. I do hope you will not pass this over me. I know I can do Jack Rabbit. Please keep me on your list for this. During this same period of time, Petitioner orally advised the School Board that the noise levels in the dish room of the cafeteria were too high and aggravated her tinnitus. Accordingly, she asked that the School Board place her in another position. In response to Petitioner's letter, and to satisfy her concern regarding noise levels in the cafeteria, Longacre directed that a Sound Measurements Study for the cafeteria be prepared by an ESE Program Specialist, MeShelda Mosley. Using a Quest Sound Meter to measure sound in decibels in various locations throughout the cafeteria area, Mosley determined that the noise levels in the serving line were lower than in the dishroom, where Petitioner had been working. This advice was memorialized in a report dated May 11, 1994. After receiving this report, James R. Polk, Jr., Director of Human Resources, conferred with Mosley and Dr. Ziegler, an audiologist, and all agreed that the noise levels in areas other than the dishroom of the cafeteria were low enough so that Petitioner could continue working in another area of the cafeteria. On May 14, 1994, Polk responded to Petitioner's letter with advice that "at no time [has the Board] considered terminating [Petitioner]," and that it was "very much aware of [her] problem and want[ed] to find a solution that will be satisfactory to both [her] and to the [School Board]." The letter added that because Petitioner had been satisfactorily employed in a food service position for a long time, the School Board's first option "[was] to find a position in food services that will work at that school." It reaffirmed the Board's prior offer to place her in a position which required her to prepare salads rather than working in the dish room. Polk went on to say that if that position did not work out, the School Board would look at "other options." Finally, in response to a request by Petitioner that she be reassigned to the position of Jack Rabbit mail courier, Polk stated that there was no current vacancy in that position, and he could not displace a current employee to accommodate her. If, however, a vacancy occurred in the future, he promised he would consider Petitioner for the position. On May 17, 1994, Petitioner sent a letter to the school superintendent, Dr. Thomas Sanders, concerning the status of her health insurance and the use of the Sick Leave Bank while on a leave of absence. In addition, she pointed out that she had asked for another position, "should anything come open" when she returned, because the "cafeteria noise is bad for me." In response to that letter, on May 24, 1994, Polk and Longacre jointly sent a letter to Petitioner by certified mail in which they again "assured [her] that at no time has the [School Board] considered terminating [Petitioner]" and that "other options [were being] considered." Petitioner contends that she returned to work in a volunteer capacity for several hours in May 1994 to determine if she could satisfactorily handle the noise levels of another cafeteria position. Based on that experience, she says she could not "handle it." However, there is no documentary evidence, such as sign-in sheets, to support this contention; the cafeteria supervisor and two co-workers denied that she returned to work as a volunteer during that time period; and it was established that it is contrary to school policy for a person on medical leave to return to work in any capacity. At hearing, Petitioner produced a copy of a letter dated "July 94" which she says was sent to Wolf's attention. In it, Petitioner advised him that she would "not be able to return to the lunchroom." She asked that he "look into" the possibility of her "doing the bookwork" in the lunchroom. If that was not possible, then until "anything else comes along," Petitioner asked that he "extend [her] leave of absent [sic] without pay, as it's listed in the School Board policy that if you work 3 yrs or more you can be granted up to 1 yr leave of absent [sic]." She added that if Wolf desired a doctor's note, he would have to go through her attorney in Ocala, who was then representing her on a worker's compensation claim. Wolf, however, never received the letter. On or about the same time, Petitioner says she sent a similar letter to the residence of Carla Lennon, the new cafeteria supervisor, in which she advised Lennon that she would not be able to accept the alternative position offered by the School Board due to a "fear for [her]self and others." She asked that consideration be given to allowing her to do the "manager's bookwork and all the inventories." She also advised that a doctor's note could be obtained "through [her] attorney" in Ocala. Like Wolf, Lennon never received the letter. On August 5, 1994, Wolf sent Petitioner the following letter: Greetings! It is that time of the year again. All Food Service Assistants are to report to work on August 12, 1994. Please plan on meeting with Carla Lennon, our new Food Service Manager at 7:00 a.m. I am looking forward to a great year. Hope your summer was restful. Petitioner received this letter on August 9, 1994. The following day, Petitioner sent a letter to Dr. James Hardy, an ear, nose, and throat physician, requesting that he prepare a note indicating her work restrictions. Dr. Hardy sent Petitioner a letter on August 12, 1994, stating that Petitioner "is capable of working at a job that does not require oral communication." There was no mention that Petitioner could not return to work during the following school year or that she could not tolerate the noise levels in the salad preparation area of the cafeteria. Petitioner did not provide a copy of this letter to the School Board. When Petitioner did not return to work on August 12 as directed by the school principal, on August 18, 1994, Wolf sent Petitioner the following letter: As of this date, August 18, 1994, you have not returned to work. I sent a letter on August 5, 1994 stating you were to return to work on August 12, 1994. When you failed to report, I called you to discuss your intent. You informed me you would have a doctor's statement on Monday, August 15, 1994. This has not been received as of this date. I attempted to provide an alternative work assignment in the lunchroom, such as making salads and working in the serving line. You once again informed me this would not be suitable. I have made every possible effort to accommodate you within the confines of your job responsibilities in the lunchroom. As a result, I am recommending to Dr. Sanders, your employment with the Lake County School System be terminated. This recommendation is based on School [B]oard [P]olicy: Absence Without Leave for Non- Instructional Personnel. A copy of this policy is attached. Petitioner acknowledges receiving this letter. On August 23, 1994, the superintendent sent Petitioner a letter by certified mail which advised her that he intended to accept the principal's recommendation and recommend Petitioner for dismissal at the next School Board meeting on September 13, 1994. Before such action was taken, however, Petitioner was offered the right to an informal hearing to refute the charges. Although Petitioner received both letters, she did not contact the School Board to see if her attorney had provided it with a copy of a doctor's note. She also did not exercise her right to have an informal hearing to refute the charges or seek a resolution of the controversy. Instead, she followed the advice of her worker's compensation attorney who surprisingly advised her to let the School Board terminate her. By action taken on September 13, 1994, the School Board terminated Petitioner's employment effective at the end of the workday on September 13, 1994, for violating School Board Policy GDBD - Absence Without Leave for Noninstructional Personnel. This action was taken on account of Petitioner's failure to comply with the foregoing policy and not because of any handicap. Although not pled in her Charge of Discrimination or Petition for Hearing, Petitioner has requested "payment for mental anguish of $200,000.00," "payment for loss of wages since her termination [of] $44,715.00," and "payment for loss of retirement of $100,000.00" and that the School Board "pay the taxes." Except for Social Security disability benefits, Petitioner has apparently been without income since her discharge in 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Sharon L. Pennington 2512 Tecumseh Avenue Leesburg, Florida 34748 Stephen W. Johnson, Esquire M. Catherine Wellman, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact UCP is a non-profit organization incorporated in Florida. During tie years of 1979-1980 and 1980-1981, UCP entered into contracts with Petitioner, to serve as operator for two CETA programs. One of these programs was a Title VIII Young Adult Conservation Corps program in which the operator contracted to train economically disadvantaged youths in park restoration and development while developing recreational areas in rural low- income communities (Exhibits 1 and 3). The contract price of the 1981 contract which Petitioner proposes to cancel is $74,000. The other program contracted by UCP to operate proposes to train some 15 minority youths between the ages of 16 and 21 for positions in the Theatre/Journalism field and expose an additional 500 youths to the career opportunities available in these fields (Exhibits 2 and 4). The contract price of the 1981 contract which Petitioner proposes to cancel is $210,000 (Exhibit 2). The 1980 contracts for these programs were $85,000 and $315,000, respectively (Exhibits 3 and 4). Dr. Ed James was the founder (Exhibit 5) and first Chairman of UCP, is now Chairman Emeritus of UCP and participates in the contract (Exhibit 2) as Journalism Coordinator. This involves the planning and operation of the journalism project portion of the contract. James also owns Full Spectrum Video and Film, Inc. which, during the time these contracts were in effect, had offices in the same building as UCP. Full Spectrum Video and Film, Inc. sells video services and products. It has no full-time employees but employs salesmen on a commission basis. In addition to Dr. James as owner, a Tony Majors, who worked for UCP as Theatrical Director during the 1979-1980 contract period, was a Vice President of Full Spectrum Video and Film, Inc. Fred Bacon, during all times here relevant, was Executive Director of UCP. His duties include the day-to-day operation of UCP, whose primary activity is serving as operator under these CETA contracts. Bacon serves as purchasing agent and is in charge of obligating and disbursing the funds provided pursuant to these CETA contracts. During the earlier stages of these contracts Petitioner's employees who acted as contract managers frequently visited UCP to check their records and files and found no problems. These contract managers did not check fiscal procedures. In the latter part of the first contract period, Petitioner's Division of Independent Monitors also visited UCP to check records, including fiscal records, to ascertain that the operator was in compliance with federal regulations applicable to CETA contracts. During a visit in late February, 1980, by monitors from Petitioner, numerous discrepancies were noted in procurement practices, including potential conflicts of interest and inadequate bidding procedures. Also, it was noted that vehicle logs were mot properly maintained to show that these vehicles were used on official business only. In response to this monitor report the Respondent's Executive Director, in letter dated April 23, 1980, denied any impropriety, charged the monitors with bias and prejudice, and demanded an unbiased review. This response was reviewed by Petitioner's Contract Manager and, by letter dated May 23, 1980, the Acting Director of the Division of Employment and Training notified Respondent that its response had been found acceptable. At the time this letter was written, the Acting Director was unaware that Respondent had purchased office furniture and equipment from Allstate Office Supply and Equipment Co., a corporation established and owned by Bacon. Bacon's testimony regarding his lack of knowledge of the incorporators of Allstate, one of whom was his sister and the other an employee of UCP, and his lack of knowledge that James owned Full Spectrum Video and Film, Inc. at the time the equipment was leased and the video tapes purchased from Full Spectrum by Respondent, is not credible. The charges of bias and demand for conference visits led to additional visits to UCP by contract managers, monitors, and auditors. On February 5-9, 1981, the firm of Alexander Grant and Company conducted a Financial and Compliance audit for the period October 1, 1979 to September 30, 1980 and its report was admitted as Exhibit 16. This audit, inter alia, found the lack of a general ledger unacceptable for proper accounting. These visits also disclosed Respondent had entered into a lease with Full Spectrum Video and Film, Inc. in which video equipment having a value of slightly in excess of $6,000 was leased for ten months for $10,270, with the full amount paid in advance, and video tapes were purchased from Full Spectrum. It was also disclosed that camera and recording equipment had been leased from WXLT-Television in Sarasota for $15,000. Neither of these leases were supported by written bids and no bidding procedures had been established by Respondent. The contract (Exhibit 4) provides that training equipment would be rented. It would normally be expected that the rental cost of the equipment having a relatively long life would be considerably less than the purchase price. Accordingly, it was CETA policy to lease non-consumable equipment rather than purchase such equipment. In June, 1980, Dr. Charles Russell was appointed Director, Division of Employment and Training. He shortly learned of problems with UCP but found insufficient evidence to warrant refusal to review the contracts for 1981. However, additional audits were directed by Dr. Russell and, when evidence regarding conflicts of interest in the purchases from Allstate and Full Spectrum Video came to light, Russell issued the Agency Order to Cause. One of these audits was conducted by Petitioners Bureau of Independent Monitoring wherein UCP was found deficient in maintaining financial records and backup documents to support the expenditures noted. These deficiencies occurred principally in vehicular travel expenses and leases of expensive equipment (greater than $10,000) for which no adequate bidding procedure was established or documented. The mileage put on the vehicles and the costs incurred could not be corroborated by the vehicle logs maintained. No evidence was presented that fraudulent transactions occurred, that gas was purchased for use other than in the leased vehicles, or that the vehicles were used other than for official business. Newspaper publicity about some of the activities of Respondent resulted in the Auditor General of Florida sending auditors to audit Respondent's records. Part of this publicity included the disclosure that 13 participants in the Theatre program and eight staff members had been flown from Sarasota to New York on a field trip to see Broadway plays. It was also disclosed that $60 had been collected from the 13 participants and the $780 had not been returned although Petitioner had funded the total cost of this field trip. Exhibit 15 is a copy of checks dated 21 April 1981 refunding the $60 to each participant. Bacon's explanation for failure to return the money to the participants until shortly before the hearing was that it slipped his mind that these funds had been collected and not used. Respondent was authorized to submit, as a late-filed exhibit, the bank records relating to the handling of the $780 collected from the participants. By latter dated 26 May 1981, Petitioner, by and through his attorney, submitted a copy of a check dated April 7, 1981 drawn on UCP General Account payable to "Union of Concerned Parents-Trust" in the amount of $780; a copy of receipt for check deposit dated 041581 to UCP General Account in the amount of $780.00; a copy of a cashier's check dated April 7, 1981 drawn on UCP General Account payable to Union of Concerned Parents-Trust in the amount of $780; and copies of 11 checks dated April 21, 1981 drawn on UCP General Account in the amount of $60 and payable to individual payees. These latter checks were admitted into evidence during the hearing as Exhibit 15. The total shown refunded in Exhibit 15 is $660. Respondent also submitted two affidavits neither of which are the bank records authorized to be submitted as a late-filed exhibit. These affidavits are not admitted into evidence and will not be considered although the letter of 26 May 1981 with all attachments is identified as Exhibit 18. Exhibit 14 indicates the New York trip was taken Labor Day weekend. In 1980 Labor Day occurred 1 September. Presumably the money was collected during August 1980 and no record showing what happened to this $780 from the time of its collection until April 1981 has been presented. All checks disbursing either $60 or $780 were written on UCP General Account and no record has been presented showing the source of the $780 deposit dated 15 April 1981. It was only after the adverse newspaper publicity about the New York trip that the existence of the $780 came to light and it was subsequent to the charges here preferred that any money was refunded to the participants. From the records presented it cannot be determined that the $780 collected from 13 participants was the source of the funds refunded to the 11 payees of the $60 checks dated April 21, 1981. Upon their initial visit the Auditor General's agents were refused access to Respondent's records. When they appealed to Petitioner, Respondent's executive director was contacted by Petitioner and he agreed to allow the Auditor General access to his records if written authorization was received from Petitioner. A letter was sent to Respondent containing such authorization (Exhibit 17); however, when the auditors appeared after the letter had been received, Bacon again refused them access to the records unless UCP's attorney was present. Although Bacon testified the books and records would be shown to the Auditor General no time acceptable to both parties has been established. Respondent contends that the genesis of these charges here involved is political and that the primary, if not sole, purpose of the show cause order is to remove Dr. Ed James from the employ of UCP. To substantiate this contention Respondent called Wallace Orr, Secretary of the Department of Labor and Employment Security, to testify that he had told UCP and a member of the Board of Directors of Minority Ventures, Inc. that they should get rid of Ed James because of the disrupting influence he was having with their relations with the Department of Labor and Employment Security. Secretary Orr acknowledged making the statements plus telling UCP that if they didn't get rid of James he (Orr) might revoke their contracts. Orr attributed these comments to his concern for the viability of both organizations and to the difficulties created by James with his continual allegations of racial discrimination every time he contacted the Department of Labor on behalf of those organizations. The evidence was undisputed that the Order to Show Cause was instituted by Charles Russell in his capacity as Director, Division of Employment and Training, and as a result of reports he had received indicating UCP had violated federal regulations in their handling and disbursing CETA funds with which they were entrusted under the contracts. Respondent further contends that the contract between UCP and Allstate Office Supplies was in the best interest of UCP as were the transactions with Full Spectrum Video involving the purchase of video tapes and the lease of equipment. In support of that position Bacon testified that he had obtained an oral quote for the furniture needed from Bunko's at a price of approximately $3,000 and that he procured the furniture through Allstate at cost. Although this testimony was unrebutted neither was it corroborated by documents showing how much Allstate actually paid for the furniture. No record of Bunko's quote was available. Respondent justified awarding the contract to lease video equipment from Full Spectrum Video on the basis of a telephone call to a supplier in Miami, Image Devices Incorporated (IDI), and the receipt of a price list from IDI for renting equipment on a daily basis only. No effort was made to obtain a bid from a supplier in Tampa (or elsewhere) or from the manufacturer of the equipment. The testimony of Bacon that an important consideration was maintenance of the equipment, and the lease provided for maintenance of the equipment, is not borne out by the copy of the invoice contained in Exhibit 8 or the testimony of James that he didn't know how often repairs were required on the leased equipment although he was the only one to make repairs. Respondent likewise justified the $15,000 lease of equipment from WXLT-TV on the comparison of their quoted price with the daily rates contained in the catalog Bacon had received from IDI and without obtaining a quote from any other supplier. It is evident that contract managers and others in the employ of Petitioner made numerous visits to UCP to look over their procedures and assist UCP with potential problems and failed to recognize or discover accounting, organization and procurement errors being committed by Respondent; or, if these errors were recognized, their existence was not communicated to UCP. It further appears that the policy of making every effort to settle all problems if the operator promised future compliance with applicable regulations was discontinued shortly after Charles Russell assumed the duties of Director, Employment and Training. The contracts here involved provide the operator shall avoid organizational conflicts of interest; its personnel shall avoid personal conflict of interests and appearance of conflict of interest in the conduct of procurement activities; and that it shall establish monitoring procedures to ensure that its program is in compliance with the Act and the regulations.
