The Issue The issue in this case is whether just and good cause exists to terminate Respondent from his employment as an educational support employee with Miami-Dade County Public Schools.
Findings Of Fact The Parties At all times material to this proceeding, Petitioner was a duly- constituted school board charged with the duty to operate, control, and supervise free public schools within Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes. At all times material to this proceeding, Respondent was employed by the District as an electrician at Maintenance Service Center 4 (hereafter, "MSC4") in Miami-Dade County, Florida. As such, Respondent was subject to applicable Florida Statutes, applicable State Board of Education rules, Petitioner's policies and procedures, and the Dade County Schools Maintenance Employees Committee ("DCSMEC") Contract.2 Charges in the Amended Administrative Complaint The Amended Administrative Complaint alleges that between May and July 2019, Respondent misrepresented his working time on daily status forms and forged the signatures of worksite administrators on daily status forms. The Amended Administrative Complaint charges Respondent with having violated Florida Administrative Code Rules 6A-5.056(2) and 6A- 10.081 and School Board Policies 4210, 4210.01, and 8700. The Amended Administrative Complaint alleges that the conduct in which Respondent is alleged to have engaged, and the violations with which he has been charged, constitutes just cause to suspend Respondent without pay and terminate him from his employment position with the District. 2 The version of the DCSMEC Contract in effect between July 1, 2018, and June 30, 2021, was in effect at the time of the alleged conduct giving rise to this proceeding, and, therefore, applies to this proceeding. Evidence Adduced at the Final Hearing Background Respondent was hired by the District as an electrician in February 2007. He worked at Maintenance Service Center 3 until September 2008, when he was reassigned to MSC4. MSC4 is one of four District maintenance service centers that the District operates. MSC4 is several acres in area and contains trucks, storage facilities, a fueling station, and dumpsters. The geographic service area for which MSC4 is responsible stretches from Southwest 168th Street, in Miami, southward to the Miami-Dade County/Monroe County line. District employees assigned to MSC4 perform work at District facilities within the MSC4 service area. Respondent's work hours at MSC4 were from 6:00 a.m. to 2:30 p.m. He worked at MSC4 from September 2008 until December 2020, when he was suspended without pay and Petitioner took agency action to terminate his employment with the District. Respondent's home is located approximately 21 miles north of the northern boundary, and over 30 miles north of the southern boundary, of the MSC4 service area. During his employment at MSC4, Respondent engaged in the typical tasks performed by electricians who work for the District. Specifically, he handled work orders sent to MSC4 from District school facilities, entailing a wide range of electrical issues that arose, including loss of power, lighting issues, air conditioning, kitchen equipment, electrical wiring, damaged motors, and other tasks. Electricians are—and, at the time of Respondent's alleged conduct giving rise to this proceeding, were—assigned work by a foreman at MSC4. Work orders for specific jobs at specific facilities would be given by the foreman to the electrician, who would travel to the facility and perform the requested work. An electrician could be given several work orders on a given day, and if the work assigned through a work order was not completed that day, the electrician would return the following day to complete the work. If the electrician finished all of the work assigned through a work order, he or she was to contact the foreman, who would dispatch the electrician to another location to complete another work order. Electricians kept track of their work each day on a Daily Status Form ("DSF"), which (as the name indicates) was required to be completed by the electrician and submitted to the foreman on a daily basis. On each DSF, the electrician would provide a brief description of the work performed; enter the amount of time spent on a particular job; state whether the job was completed; and obtain the signature of the principal or authorized representative, who, by signing the DSF, verified that the work described on the DSF for that facility was, in fact, performed. At the time of the alleged conduct giving rise to this proceeding, Respondent's supervisors were Michael Thomas and a person referred to in the record as "Mr. Hetzer."3 At that time, and at the time of the final hearing in this proceeding, Timothy Jones was the director of MSC4, so was the supervisor for Thomas, Hetzer, and Respondent. At the time of Respondent's alleged conduct giving rise to this proceeding, he was assigned a District work vehicle having Vehicle Number 202209. Telogis Vehicle Tracking Software Installed in District Vehicles In 2016, the District purchased new Ford trucks for MSC4. The vehicles came equipped with global positioning system ("GPS") hardware and Telogis software, a Verizon Connect software product. Via cellular signal, the Telogis software tracks, among other things, the location and speed of 3 The record does not refer to Mr. Hetzer's first name. Hetzer died in January 2020, so was unavailable to testify at the final hearing. equipped District vehicles. The software enables the District to efficiently manage its fleet of vehicles. Respondent, along with the other MSC4 employees and the members of the DCSMEC union, was informed by Jones that the District vehicles used by employees at MSC4 were equipped with the Telogis software. The work vehicle assigned to Respondent, Vehicle Number 202209, was equipped with the Telogis software. The evidence establishes that Respondent knew his vehicle was equipped with the Telogis software. The data for each District vehicle is gathered by the Telogis software and electronically stored by Verizon Connect in a records storage and maintenance platform called Fleet. Verizon Connect customers have access to the data stored in the Fleet platform for purposes of monitoring the location and performance of their vehicles, and they can print out reports of their vehicle data that is stored in the Fleet platform. The competent, substantial, and persuasive evidence establishes that the Telogis software functions accurately in recording the vehicle location, speed, and other monitored features. No competent or persuasive evidence was provided showing that the Telogis software was generally unreliable or that it had a significant error rate.4 Respondent's Alleged Conduct Giving Rise to this Proceeding On or about July 12, 2019, Hetzer, who was Respondent's immediate supervisor at the time, and Jones found Respondent sleeping in his work vehicle. This incident caused Jones to investigate Respondent's work-related records for the preceding few months, because, as Jones put it, "I just wanted to see what Mr. Fleites had been up to." Jones testified, credibly, that had he found other employees sleeping on duty, he also would have accessed the Telogis software reports for their vehicles. 4 See paragraph 66, below. As part of the investigation, Jones or Hetzer accessed, and printed out, the Telogis software reports for Respondent's work vehicle for the period from May 1 to July 12, 2019.5,6 Also as part of the investigation, Jones reviewed Respondent's DSFs for the period from May 1 to July 12, 2019. Jones compared the Telogis software reports for Respondent's vehicle with the DSFs that Respondent had completed for the period from May 1 to July 12, 2019. Based on the information provided by the Telogis software for Respondent's District vehicle, Jones determined that on numerous days during the period between May 1 and July 12, 2019, Respondent either was not at the specific location he had recorded on the DSF for that day, or he was not present at a specific location for the amount of time he had stated for that day. Specifically, on May 1, 2019, Respondent's DSF stated that he was at Redondo Elementary School ("Redondo") for eight full hours; however, the Telogis report indicated that he was not at Redondo at all that day. Rather, the Telogis report showed that he drove to his home, as indicated by "JF" in 5 Jones testified that either he or Hetzer printed out the Telogis software reports for Respondent's work vehicle. He could not specifically recall whether he personally printed out the reports, but he testified, credibly, that he was trained in how to read and analyze the vehicle data in the reports, and he was authorized to print such reports. 6 The Telogis reports admitted into the record fall within the business records exception to hearsay rule codified in section 90.803(6), Florida Statutes. Petitioner presented the testimony of Avram Polinsky, a records custodian employed by Verizon Connect, who is directly involved in the preparation and storage of the Telogis records and in making them available in report-form for customer use. Polinsky authenticated the Telogis records and his testimony established that the records were made at or near the time the data comprising the records was compiled by the Telogis software system; that these records were kept in the ordinary course of Verizon Connect's business; and that it was a regular practice of Verizon Connect to keep such records and make them available for use by customers. Accordingly, the Telogis records constitute business records pursuant to section 90.803(6). See Jackson v. State, 877 So. 2d 816, 817 (Fla. 4th DCA 2004)(computer printouts generated at the request of a party in connection with litigation fall within the business records exception). Moreover, the Telogis reports are directly relevant to the charges against Respondent, and, therefore, are admissible in this de novo proceeding. the report, which, as found above, was approximately 21 miles north of the northern boundary of the MSC4 service area, and spent close to an hour there. He also drove to unidentified locations in Miami-Dade County, to the District's Redland vehicle fueling station, to the MSC4 facility, and then back to the fueling station. Respondent's DSF for May 2, 2019, stated that he worked eight hours at the South Dade Skills Center ("SDSC"). However, the Telogis report shows that he was only at SDSC for approximately 17 minutes. Had Respondent completed the work ordered at SDSC in that amount of time, as discussed above, he was supposed to contact his foreman to receive another work assignment for that day—which he did not do. The Telogis report also shows that Respondent drove to his home, to unidentified locations in Miami-Dade County, to the Redland fueling station, and to the MSC4 facility. Respondent's DSF for May 3, 2019, stated that he spent eight hours at Miami Heights Elementary School. However, according to the Telogis report for that day, he did not go to the school, but instead, went home and also drove to the Redland fueling station and the MSC4 facility. Respondent's DSF for May 7, 2019, stated that he was at the Air Base K-8 Center for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date. The Telogis report shows that he went home, went to various unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 8, 2019, stated that he was at the Peskoe K-8 Elementary School for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date, but, instead, went home, went to unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 9, 2019, states that he worked eight hours at the MSC4 facility. However, the Telogis report for that day showed that, in addition to being present at the MSC4 facility for two short periods of time, he drove 68 miles that day, to several unknown locations in Miami-Dade County, and to the Redland fueling station five times. Respondent's DSF for May 13, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was only present at that location for slightly over seven minutes. The Telogis report shows that he made several stops at the Redland fueling station, three stops at the MSC4 facility, and three stops at unknown locations in Miami-Dade County. Respondent's DSF for June 3, 2019, states that he worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school at all on that date, but, instead, went home, drove to the Redlands fueling station several times, and drove to unknown locations in Miami-Dade County. Respondent's DSF for June 4, 2019, states that he worked eight hours at Redondo. However, the Telogis report for that day indicates that he did not go to the school at all on that date, and that instead, he drove home, made four stops at the Redland fueling station, and made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 5, 2019, states that he worked eight hours at South Miami Heights Elementary School. The Telogis report for that day shows that Respondent did not go to this school at all on this date, but instead went to Redondo, drove home, made four stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 6, 2019, states that he worked eight hours at Gulfstream Elementary School; however, the Telogis report for that day shows that he did not go to that school at all on that date, but instead drove home; went to various locations in Miami-Dade County, including a busway station; made five stops at the Redland fueling station; and made multiple stops at the MSC4 facility. Respondent's DSF for June 10, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he did not go to that school, but instead made two very brief stops at two other schools, and made stops at the Redland fueling station and the MSC4 facility. Respondent's DSF for June 11, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he was only present at that school for slightly over 41 minutes. The Telogis report shows that he went to three unknown locations in Miami- Dade County, made five stops at the Redland fueling station, and multiple stops at the MSC4 facility. Respondent's DSF for June 13, 2019, states that he worked eight hours at Laura Saunders Elementary School. However, the Telogis report for that day shows that he was at the school for slightly over 42 minutes, and that he made stops at unknown locations in Miami-Dade County, at the Redland fueling station, and at the MSC4 facility. Respondent's DSF for June 17, 2019, states that Respondent worked eight hours at Homestead Elementary School. However, the Telogis report for that day shows that he did not go to that school on that date, and instead stopped at McArthur South High School—for which no work had been requested—for slightly over 26 minutes. He also made stops at an unknown location in Miami-Dade County and two stops at the Redland fueling station. Respondent's DSF for June 18, 2019, states that Respondent worked eight hours at Redondo. However, the Telogis report for that day shows that he did not go to that school on that date, and instead briefly stopped at South Miami Heights Elementary and Herbert A. Ammons Middle School, although no work had been requested for either school. He also drove home, made five stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 19, 2019, states that Respondent worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school, or to any other school, on that date. He made three stops at unknown locations in Miami- Dade County and two stops at the Redland fueling station. Respondent's DSF for June 24, 2019, states that he worked eight hours at the Medical Academy for Science and Technology. However, the Telogis report for that day shows that he was on site at this school for slightly over 21 minutes. The Telogis report also shows that he made a brief stop at Redland Elementary School, despite no work order being issued for that school that day; and that he made stops at three unknown locations in Miami-Dade County, three stops at the Redland fueling station, and stops at the MSC4 facility. Respondent's DSF for June 25, 2019, states that he worked eight hours at Whigham Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent stopped at Redland Elementary School for slightly over 28 minutes, notwithstanding that no work had been requested for that school on that day. The Telogis reports also shows that he made five stops at the Redland fueling station and two stops at unknown locations in Miami- Dade County. Respondent's DSF for June 26, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report also shows that he made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 28, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he only was present on site at that location for approximately 53 minutes. The Telogis report shows that Respondent drove home, stopped at three unknown locations in Miami-Dade County, and made four stops at the Redland fueling station. Respondent's DSF for July 8, 2019, states that he worked 6.5 hours at Caribbean K-8 Center; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent drove home, made three stops at unknown locations in Miami- Dade County, and three stops at the Redland fueling station. Respondent's DSF for July 9, 2019, states that he worked eight hours at R.R. Morton Elementary School; however, the Telogis report for that day shows that he was at that location for slightly over one hour and 36 minutes, and that he briefly stopped at Redland Elementary School, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station and four stops at unknown locations in Miami-Dade County. Respondent's DSF for July 10, 2019, states that he worked eight hours at Campbell K-8 Center; however, the Telogis report for that day shows that he was at this location for slightly over 39 minutes. The Telogis report shows that Respondent drove home, made three stops at the Redland fueling station and two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 11, 2019, states that he worked eight hours at Caribbean K-8 Center. However, the Telogis report for that day shows that he was only present at that location for one hour and 36 minutes. The Telogis report shows that Respondent made two brief stops at Miami Heights Elementary School, notwithstanding that no work had been requested for that school on that day, and that Respondent made two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 12, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was present at that location for a total of three hours and 21 minutes. The Telogis report shows that Respondent stopped at the Caribbean K-8 Center, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station, three stops at unknown locations in Miami-Dade County, and one stop at the MSC4 facility. As discussed above, when maintenance work is performed at a District facility, the employee must fill out the DSF, describing the work and stating the number of hours of work performed at the facility, and the employee must obtain the signature of the school's principal or authorized designee. The purpose of obtaining that signature was to verify that the work addressed on the DSF was performed. Here, the persuasive evidence establishes that Respondent falsified or forged signatures on some of the DSFs he submitted. Specifically, Respondent's DSF for May 8, 2019, contains the employee number of James Tuning, a foreman at MSC4, and a signature purported to be Tuning's. Tuning testified, credibly, that the employee number on the form was his, but was not written in his handwriting, and the signature on the DSF was not his. He further testified that, under any circumstances, he would not have been authorized to sign DSFs for work performed at the facilities serviced by employees at MSC4. Respondent's DSFs for June 17, 26, and 28, 2019, contain the employee number of Melissa Vincenti, the principal's secretary at Air Base Elementary School, and a signature purported to be Vincenti's. Vincenti testified, credibly, that the DSFs did contain her employee number, but that the number was not written in her handwriting, and the signature on the DSFs was not hers. The evidence establishes that she did not give permission for Respondent, or anyone else, to sign the DSF for her. Respondent's DSF for July 8, 2019, contains the employee number of Darryl Lyles, the head custodian at Caribbean K-8 Center, and a signature purported to be Lyles's. Lyles testified, credibly, that the employee number on the DSF was his, but the signature was not his. The evidence establishes that he did not give permission for Respondent, or anyone else, to sign the DSF for him. Respondent's Prior Disciplinary History Respondent previously has been disciplined by Petitioner. Specifically, in 2010, Respondent was suspended from his employment with the District for eight days without pay for having left work early, which constituted payroll fraud. In addition to being suspended without pay, Respondent entered into a settlement agreement with Petitioner under which he agreed to reimburse the District for 20 work hours. Respondent's Defenses Michael Thomas, a retired supervisor who worked at MSC4 in 2019, testified that when the Telogis software was installed in District vehicles, he repeatedly assured the District employees at MSC4 who were using the Telogis-equipped vehicles that the data generated by the software system would "never be used against them in a derogatory or disciplinary manner." Thomas testified that he was authorized by his supervisor, Timothy Jones, to tell the employees that the data gathered by Telogis for their vehicles would not be used for disciplinary purposes. However, Jones directly contradicted Thomas's testimony on this point. Jones testified that he did not direct anyone, including Thomas, to tell employees that the Telogis data would not be used for disciplinary purposes. Rather, he told his foremen that he was not using the data for disciplinary purposes at that time. On questioning, Thomas acknowledged that he never had given written assurances to employees that the Telogis data would not be used to support disciplinary action. Furthermore, in any event, there is nothing in the DCSME Contract— which establishes the terms and conditions of employment for those to whom the contract applies, including Respondent—that provides that the Telogis data would not be used as a basis of, or to support, disciplinary action against District employees who violate School Board policies.7 Thomas also testified that the Telogis system had a 20 percent inaccuracy rate. However, on questioning, Thomas acknowledged that this assertion was "anecdotal," and that he did not have any data to support this assertion. He also acknowledged that he was aware of only one vehicle, out of the 21 vehicles dispatched from MSC4, that ever had any Telogis software accuracy issues. He further testified that that particular vehicle was not assigned to Respondent, and that to his knowledge, the Telogis software installed on Respondent's vehicle did not have any accuracy issues. Respondent testified that on July 12, 2019, the day that Jones and Hetzer found Respondent in his vehicle at the MSC4 facility, he was not sleeping, but was instead waiting for rain to pass so he could pick up materials and return to the school to complete the work. However, as found above, this testimony was directly contradicted by Jones, who testified that on that day, he, along with Hetzer, found Respondent sleeping in his vehicle. Thus, Respondent's testimony on this point was not credible. Respondent also testified that Tuning, Vincente, and Lyles gave him their employee numbers and gave him permission to sign the DSFs on their behalf. Respondent's testimony was directly contradicted by the testimony of Tuning, Vincenti, and Lyles, all of whom testified that they had not given Respondent their employee numbers; had not signed the DSFs; and had not authorized Respondent to do so on their behalf. Thus, Respondent's testimony on this point was not credible. Respondent also testified that on the days he had driven home during the work day, he had done so in order to take medication for pain he 7 To that point, any verbal representations made to employees regarding the use of the Telogis software would not, and did not, supersede the DCSME Contract. experienced due to medical issues.8 He testified that he had been given permission to do so by a former supervisor, William Barroso, and that he did not know if his subsequent supervisors were aware that Barroso had given him such permission. In any event, Jones testified that permission to return home for personal reasons, such as to take medication, during work hours could only have been granted by a current supervisor. During the operative time period of May 1 through July 12, 2019, Barroso was not Respondent's supervisor. Therefore, in order for Respondent to have been excused from his job duties during his work hours, he would have needed to obtain permission from his supervisor at the time. There was no evidence presented showing that Respondent had obtained such permission, and the most plausible inference from Respondent's own testimony is that he did not obtain such permission. Respondent also asserts that in using the Telogis records for his District vehicle in support of its proposed disciplinary action at issue in this proceeding, Petitioner has singled out Respondent and treated him disparately as compared to other employees, who have not been subjected to discipline on the basis of Telogis records for their District vehicles. However, this assertion is undercut by the credible testimony of Carlos Diaz, Director of Professional Standards for the District, who stated that Telogis records have, in fact, been used to impose discipline on other District employees. IV. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 4210, Standards of Ethical Conduct; School 8 Respondent testified that he kept his pain medication at home, rather than with him at work, so that he would not be tempted to take more than the prescribed amount. Board Policy 4210.01, Code of Ethics; and School Board Policy 8700, Anti- Fraud.9 Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). The competent, substantial, credible, and persuasive evidence presented in this proceeding establishes that on multiple occasions, Respondent submitted, to his supervisors, DSFs on which he had intentionally misrepresented the description of the work that he ostensibly had performed and the number of hours he had worked. As further discussed below, Respondent's conduct in this regard violated School Board Policies 4210, 4210.01, and 8700. The competent, substantial, credible, and persuasive evidence also establishes that on several occasions, Respondent falsified or forged signatures of persons, without their permission, on DSFs that he submitted to his supervisors for the purpose of representing that he had performed the work described on the DSF and/or had worked the number of hours represented on the DSF. 9 As further discussed below, it is determined that rules 6A-5.056 and 6A-10.081 do not apply to Respondent, who is not a Florida educator and has no interaction with students in the District. As further discussed below, Respondent's conduct in this regard violated School Board policies 4210, 4210.01, and 8700.
Conclusions For Petitioner: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 For Respondent: Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Miami, Florida 33146 1 All references to chapter 120 are to the 2021 version. All other statutory references are to the 2019 and 2020 versions of Florida Statutes, which were in effect at the time of the alleged conduct giving rise to this proceeding. As a practical matter, none of the substantive statutory provisions applicable to this proceeding were amended in the 2020 legislative session, so the 2019 and 2020 versions are the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order suspending Respondent without pay and terminating his employment. DONE AND ENTERED this 22nd day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2021. Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Teri Guttman Valdes, Esquire Teri Guttman Valdes LLC 1501 Venera Avenue, Suite 300 Miami, Florida 33146 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132
The Issue Whether respondent should be suspended or dismissed on grounds of immorality, misconduct in office, and incompetency.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I. The Showing of an Explicit Sex Film at Devon Aire Elementary School Ms. Block and Ms. Mason Invited to Principal's Office At all times material to this proceeding, respondent was principal and Donald Wieber was assistant principal of Devon Aire Elementary School in Dade County, Florida. Sandra Block was the school librarian in charge of the videotape equipment; Emma Mason was the school secretary, and Rosalie Luis, a counselor. (Testimony of Wieber, Block, Luis, Mason.) At approximately 9:00 a.m. on a school day at the end of September, 1980, Donald Wieber telephoned Librarian Block and asked her if she had a copy of "the Marshall tape," a videotape on individual educational plans ("IEPs"). 3/ She replied that she had the tape. (Tr. 37.) He then asked her what time she ate lunch; she said "about noon" (Tr. 38). At his request, she agreed to set up the videotape machine in the respondent's office at noontime so that the Marshall tape could be shown 4/; she also agreed to join him for lunch in respondent's office. (Testimony of Block.) At 11:55 am. that morning, Donald Wieber called Ms. Block again to check on when she would be coming to respondent's office. She replied that she couldn't come yet because her library clerk was not back from lunch. Donald Wieber then came to her office to get the film and videotape equipment. Just as he arrived, Ms. Block's clerk returned, so, together, they wheeled the videotape equipment to respondent's office. After setting up the equipment, she went to the teacher's lounge to get her lunch and a coke from the vending machine. She stopped at Emma Mason's desk where she learned that Ms. Mason had also been invited to watch the Marshall tape and have lunch in respondent's office. At the coke machine, respondent asked Ms. Block when she was coming to watch the tape; when she replied that she wasn't going to watch it, he encouraged her to come and watch it, saying it could be an interesting film. 5/ (Testimony of Block.) At that time, it was not the habit of Ms. Block or Ms. Mason to eat lunch in respondent's office. However, in the past, teachers and staff, including Ms. Block and Ms. Mason, had frequently eaten lunch there; for the convenience of his staff, respondent had salt, pepper, catsup, and similar items available in his office. (Testimony of DeLaurier, Wieber, Block, Mason.) The subject matter of the Marshall tape--education for exceptional children--was not directly related to the duties and responsibilities of Ms. Mason or Ms. Block at Devon Aire Elementary School. (Testimony of Mason, Block.) Finding of Videotape Cassette Under a Portable Classroom At approximately 11:00 a.m. that morning--prior to Ms. Block's and Ms. Mason's arrival in respondent's office--respondent sent Donald Wieber to investigate a bee problem; they had received complaints about children being stung by bees in the portable classroom area. While poking around under one of the portable buildings, Donald Wieber found a bag with a videotape inside. It was a black cassette, unlabeled except for a small white tab with a number on it. He returned to respondent's office and showed him the videotape. Respondent asked him what was on it; Wieber replied that he didn't know. Respondent then said, "Well, put it on the machine and [let's] see what is on it." (Tr. 683.)(Testimony of Wieber, DeLaurier; R-16.) Showing of Sexually Explicit Tape Cassette By this time, Ms. Block and Ms. Mason had entered respondent's office. Ms. Block had her lunch with her; Ms. Mason was busy assembling hers. Donald Wieber, pursuant to respondent's request, inserted the black cassette (which had been found under the portable classroom) and turned on the videotape machine. (Testimony of Wieber, Mason, Block, DeLaurier.) What then appeared on the screen was undisputed. The videotape depicted sexual activities between nude men and women. 6/ (Testimony of Block, Mason, Wieber, DeLaurier.) The videotape surprised and offended Ms. Block; she reacted immediately. Within 45 seconds from the film's inception, she asked Ms. Mason, who was absorbed in making a sandwich, "Are you sticking around for this?" (Tr. 42.) Ms. Mason, who had not yet looked up at the screen, answered, "Yes, why not?" (Tr. 42.) Ms. Block then walked out of the respondent's office. Approximately three minutes later, Ms. Mason, also offended by the film, exited the office and the two women went to a nearby office to finish their lunches. (Testimony of Mason, Block; P-1.) When the videotape machine was turned on, respondent --who was at his desk -- could not see the screen. Wieber alerted him to what was being shown, after which respondent came over and joined Wieber. The two men then watched the sexually explicit film for approximately ten minutes. No one else was present during this interval. No children were in respondent's office at any time during which the sexually explicit videotape was played. (Testimony of DeLaurier, Wieber.) The sexually explicit videotape was seen by at least one other person on that day -- Rosalie Luis, a school counselor. Respondent had asked her to come by his office after she finished lunch to see the Marshall tape. She complied. After watching the Marshall tape in respondent's office -- the sexually explicit videotape was shown. 7/ No warning was given or comments made prior to it being shown. Ms. Luis thought it humorous but left shortly after it began. Respondent was present at the time. (Testimony of Luis.) Thereafter, respondent instructed Wieber to take the tape cassette and "Get rid of it fast." (Tr. 689.) Wieber complied, disposing of the cassette in a garbage chute behind the school cafeteria. (Testimony of Wieber.) Respondent's Knowledge and Intent Respondent did not know that the cassette portrayed explicit sexual activities when he asked Wieber to play it on the videotape machine in the presence of Ms. Block and Ms. Mason. 8/ (Testimony of Wieber, DeLaurier.) When the offending videotape was shown in respondent's office, he was insensitive to Ms. Block's, Ms. Mason's, and Ms. Luis's presence and the possibility that such a film might upset or offend them; he was apparently oblivious to their presence. He did not, however, intend to offend them. The film did not offend him; after Ms. Block's and Ms. Mason's exit, he chose to continue watching the film for approximately ten more minutes. A little later, after playing the Marshall Tape, he chose to watch it again in the presence of Ms. Luis. (Testimony of Block, Mason, Wieber.) The Aftermath After the September incident involving the offending videotape, Ms. Block, Ms. Mason, and Ms. Luis continued to work at Devon Aire Elementary School. Respondent continued to perform his duties; there is no evidence that the film incident adversely affected his job performance or his relationship with the school staff and teachers. Indeed, between September, 1980, and January, 1981, the teachers offended by the film (Ms. Block and Ms. Mason) did not report or complain about the incident to other school personnel. In January, 1981, Ms. Mason reported the incident to Renee Kachman, a person generally known to be critical of respondent; soon thereafter, the School Board launched an investigation. In May, 1981, the allegations against respondent and Donald Wieber became a matter of public interest because of a series of news articles published in The Miami Herald. (Testimony of Britton, Block, Mason, DeLaurier, Wieber.) Most of the staff members and teachers at Devon Aire Elementary School -- after reading a May 2, 1981, Miami Herald news article concerning the incident -- signed a petition requesting that respondent be reinstated as a principal. (R-2.) In June, 1981, an investigative report and Superintendent Leonard Britton's recommendation for disciplinary action were presented to the School Board. Mr. Britton recommended that respondent be reprimanded, financially penalized, demoted, returned to a non-instructional position, and notification be given to the State Education Practices Commission. The School Board rejected the recommendation and voted to institute dismissal proceedings. (Testimony of Britton.) There was a substantial but mixed public reaction to the allegations against respondent and Donald Wieber, and the disciplinary action recommended by the superintendent. Between 50-60 percent of the phone calls to the School Board's Office of Public Information agreed with the School Board's decision to dismiss respondent and Wieber 9/. Some parents would be angry if respondent is returned to the school system; others would not. (Testimony off Hanks, Everhart, Gordon, Travis, Britton, Block.) II. 1976 Showing of Explicit Sex Film at Key Biscayne Elementary School In 1976, respondent was principal of Key Biscayne Elementary School. On a school day--sometime between February and June--he invited Eleanor Neil, the school librarian, to his office to watch a film on Key West attractions. At approximately 1:00 p.m., the Key West film began to be shown. At least three persons were present: respondent, Ms. Neil, and Betty Shalley, respondent's secretary. It is uncertain whether other persons were also present. (P-4.) The first 1 1/2 minutes of the film showed people enjoying the attractions of Key West. Then--inexplicably--an explicit sexual act between a man and woman was depicted on the screen. After five seconds, Ms. Neil and Ms. Shalley--offended by the explicit sexual act--left the office. (P-4.) Except for mentioning the incidents to a friend, Edna Sinclaire, Ms. Neil said nothing about the incident to anyone. She never questioned respondent about it or filed any complaint. It was not until five years later--in connection with other allegations against respondent--that a School Board investigator questioned her about the incident. She was 68 years old in 1976 and is now retired. Respondent denies any knowledge of or involvement in the showing of this five-second film clip of an explicit sexual act. Ms. Neil is unable to clearly recollect an incident which occurred five years earlier. She cannot recall if other people were in respondent's office at the time, what was depicted immediately prior to the explicit sex act, or the specific Key West attractions shown on the film. Because of Ms. Neil's demonstrated lack of bias or motive to falsify, her testimony is considered persuasive. (P-4.) However, the evidence does not establish that respondent was culpably responsible; that the sexually explicit film clip lasted more than five seconds, that he knew, in advance, that the five-second clip would he shown, that he watched it, or even knew it was being shown. 10/ (P-4.) III. Boat Trip With School Staff During the beginning of the 1980 school year, Devon Aire Elementary School was still under construction. During September and October, respondent and his staff were faced with an unusually difficult task: they were responsible for a staff and student body which was temporarily housed (while Devon Aire was under construction) at schools located at three separate sites -- Howard Drive, Palmetto, and Colonial. (Testimony of DeLaurier, Evans.) In October or November, 1980, Devon Aire Elementary School, Dade County's largest elementary school, was nearing completion; respondent and his staff were making elaborate preparations for a planned dedication. Various persons were assigned responsibilities for social activities, refreshments, decorations, and program planning. Respondent and others were trying to persuade Clarence Bennerman, assistant principal of Devon Aire Community School ("after-school care program"), to sing the National Anthem at the dedication. Respondent and his staff anticipated and looked forward to the coming dedication with nervous apprehension. (Testimony of DeLaurier, Angolo.) Respondent, concerned about this nervousness, decided that it would be helpful to take his staff outside of the regular school setting to make final preparations for the dedication. He arranged for the appropriate staff members (including Mr. Bennerman) to join him on his sailboat on a late afternoon in October or November, 1980. He left school at approximately 3:30 p.m., and met five other staff members at his boat. They motored to the end of the channel and returned; the entire boat trip took approximately 45 minutes. When they returned to shore, he went home and the others returned to school. During the boat trip, respondent and his staff discussed the details of the dedication ceremony. 11/ (Testimony of DeLaurier, Angolo.) While Mr. Bennerman was on the boat trip, Stephen Betolatti was placed in charge of the Devon Aire after-school care program. Mr. Betolatti was not a certified teacher; however, no evidence was presented showing that he failed to effectively carry out his temporary supervisory responsibilities. 12/ (Testimony of DeLaurier.) At the time in question, school principals had been informed that they must notify their area supervisors if they were planning to be absent from school for more than two hours. In this instance, respondent did not notify his supervisor of the boat trip; however, he was absent from school for less then two hours. (Testimony of DeLaurier, Evans.) Respondent now admits that the 45-minute boat trip with his staff "did not show the best judgment" (Tr. 738); that, in retrospect, he "could have exercised better judgment." (Testimony of DeLaurier.) IV. Part-Time Employee Who Worked in Excess of 50 Hours It is uncontroverted that, during the fall and winter of 1980, respondent--while principal of Devon Aire Elementary School--permitted Stephen Betolatti to be employed on a part-time basis for more than 50 hours in a ten- day pay period. During some pay periods, Mr. Betolatti worked as much as 80 hours. (Testimony of DeLaurier, Mason.) During the time in question, the School Board did not have a rule forbidding a part-time after-school care program employee from working more than 50 hours in a pay period. Subsequently, the School Board adopted a rule prohibiting part-time employment in excess of 50 hours unless special permission is obtained. (Testimony of Tasse.) During 1980, numerous other schools employed part-time personnel for more than 50 hours in a pay period. If respondent's action violated the School Board's Salary Handbook, violations were frequent, widespread, and apparently tolerated by School Board administrators. (R-8, R-7, R-8, R-9.) Respondent was never notified by School Board administrators that his action was improper or violated School Board rules. Neither was he given an opportunity to take remedial action. 13/ V. Assigning Personal Work to School Board Employees During the 1979-1980 school year, respondent occasionally asked Ms. Block if she would type personal documents for him, such as a letter of recommendation on behalf of a law school applicant and typing and xeroxing press releases, contracts, etc., in connection with local art festivals conducted by Artfest, Inc. a corporation owned by respondent. She willingly did so, frequently during school hours. At the time, the school library was not yet completed, so she had free time available. Indeed, she frequently used school xerox machines for her personal benefit--to complete work for her master's degree. (Testimony of DeLaurier, Block.) Respondent did not explicitly direct or require Ms. Block or Ms. Mason (who occasionally did personal xeroxing for him) to do personal typing or xeroxing for him during school hours. However, he was frequently present when such work was done. He knew Ms. Block was doing work for her master's degree on school time. The evidence supports an inference that he knew that at least some of the personal work he occasionally requested would be done on school time. (Testimony of Block, Mason, DeLaurier.) Most of the personal work during school hours was done in connection with Artfest, Inc.`s conducting of four local art festivals. The proceeds from one of these festivals went to Devon Aire Elementary School and its parent teacher organization. There is no evidence that respondent personally realized any economic gain from his art festival activities. (Testimony of DeLaurier.) Conducting Personal Business on School Time As already mentioned, during the 1979-1980 school year, respondent xerox machines, typewriters--in connection with Inc.`s conducting of local art festivals. (Testimony of During this same time period, respondent was having a house built in South Dade County. During the initial stages of construction, he would visit lunch time--almost every day. During the nine-to-ten months he was principal at Aire Elementary School, he made approximately 12 ten-minute visits to the site during school hours. (Testimony of Respondent sometimes did personal errands during school hours, such as making short trips to the bank or laundry. It is a common practice for of DeLaurier.) During the time in question, respondent effectively administered Devon short absences from the school did not impair the performance of his duties. His supervisors found it no more difficult to contact him than any other . (Testimony of Evans, Rousell, DeLaurier; R- 11.) elementary school were unusually strenuous and time-consuming. To accomplish them, he devoted considerably more than 40 hours a week. (Testimony of Evans, VII. in After-School Care Program Without Charge operation of an after-school care program at Devon Aire Elementary School. This program provided child-care services using the facilities of Devon Aire (Testimony of Tasse, Balsa.) Principals were authorized "to make exceptions to fee charges in the Pursuant to this authority, respondent allowed his school staff to enroll their children in the after-school care program without paying a fee. His purpose was hardship on school teachers operating their regular classes. His action achieved the desired effect: teacher morale improved. (Testimony of Angolo.) Respondent did not intentionally violate the School Board fee authorized to waive the fee for the reasons mentioned. His supervisors never told him it was improper or gave him an opportunity to take remedial action. VIII. Inadequate Payroll Records Respondent was responsible for the administration of a satellite after-school care program as well as the after-school care program at Devon Aire Elementary School. During the 1980-1981 school year, respondent signed after- school care program payroll attendance sheets which contained various discrepancies. For example, time worked by an employee was recorded for pay purposes in the following pay period. (Testimony of Balsa.) Respondent signed the payroll sheets under time constraints. He did not check or add the hourly figures; he relied on Clarence Bennerman, administrator of the program, and his secretary, Ms. Mason, to properly complete the payroll. Such reliance and delegation of duties was a practical necessity in administering a large elementary school and two after-school care programs. (Testimony of DeLaurier.) Other schools in the county had similar discrepancies in their payroll sheets. The evidence does not establish that there was any misappropriation of funds or that a single employee was overpaid. (Testimony of DeLaurier, Balsa; R-3.) These payroll discrepancies were not previously brought to his attention. Neither was he given an opportunity to take corrective action. (Testimony of Balsa.) IX. Inadequate Class Attendance and Fee Records for After-School Care Program Devon Aire Elementary School's after-school care program opened in September, 1981, with Clarence Bennerman appointed as its administrator. The program was an Immediate success and received wide community support. (It became one of the county's largest after-school care programs.)(Testimony of Evans, Tasse.) Respondent was then directed to begin a satellite after-school care program at Gloria Floyd Elementary School, approximately ten miles away. He ambitiously undertook such a task, even though he was--at the same time--opening the county's largest elementary and after-school care programs. (Testimony of DeLaurier, Tasse.) Under such circumstances, he was forced to rely on his subordinates. He relied on Ms. Mason, the school secretary, and Mr. Bennerman to keep proper after-school care program records. When questioned, Ms. Mason would assure respondent that the records were being kept properly. (Testimony of DeLaurier.) Upon her resignation, respondent discovered that the after-school care program attendance and fee records were in poor shape; he immediately requested help from supervising officials. A subsequent internal audit indicated that, while there were some errors, the after-school care program records were "by and large correct." (Tr. 455.) Later, after respondent was placed under investigation and removed from his position at Devon Aire Elementary School, a second, more thorough audit was conducted. It revealed numerous record-keeping discrepancies. The author, George Balsa, was a new and inexperienced auditor, having never before audited a county school. He had the after-school care conduct an on-site investigation or question respondent, although he knew where respondent could be located. As a result, his report contains numerous errors. apparently unaware that it was acceptable practice to waive fees for Spanish classes. (P-5, p. 9; Testimony of Tasse.) He complained that after-school care closed; he was apparently unaware that after-school care programs operated even when regular school programs were closed. (P-5, p. 4; Testimony of DeLaurier.) signed in and out at the same time each day; he was unaware that this was not unusual at all--that it was a common practice in the school system. (Testimony Although this audit contained discrepancies of its own, its conclusion that the after-school care program records were not kept completely or As the administrator responsible for the program, I should have spent more of my of the program. As principal, I should have spent more time better fiscal control. (P-5, p. 28.) X. Respondent has a bachelor's degree, a master's degree from the University of Miami, and a doctorate from Nova University. He has been employed never had a disciplinary action taken against him; until he was charged in this case, his record was unblemished. (Testimony of DeLaurier.) until he was reassigned to Devon Aire Elementary School in 1978-1979. At Key Biscayne Elementary School, he consistently received excellent evaluations from a possible 5.0. His supervising area director made the following comment on his evaluation: cayne Elementary School with skill and a management style that produced highly gram has received his major emphasis as he gave attention to the requirements of nated the service of a very active cadre of volunteers, and continued to strengthen activities through open communication and his own involvement in their programs and activities. Dr. DeLaurier ends his eighth and final year at this school with an excellent overall evaluation. He has been reas- signed for the 1979-80 school year. (Testimony of DeLaurier; R-17) In his June, 1980, evaluation covering his job performance at Devon Aire Elementary School, his overall assessment was: "Demonstrates Exemplary Performance Standards." (R-11). He was recommended for reappointment. His level of achievement and performance was described on the evaluation: Dr. Francis DeLaurier has led in the devel- opment of an instructional program which implements all aspects and requirements of the balanced curriculum, which has resulted in evidence of student achievement, which meets the requirements of the PREP program, and which has provided for the needs of low- achieveing [sic] students through compensa- tory education. He has earned the cooperation and respect of diverse and contentions [sic] communities. Dr. DeLaurier has selected a fine teaching staff and has implemented staff-development and staff building activ- ities which has made them a cohesive and cooperative staff. He moved into a new facility with minimum disruption in the instructional program and arranged the de- tails of the move in an efficient manner. The circumstances at Devon Aire have been unique. Only a skilled and highly compe- tent administrator could have taken the various factors and organized them into an outstanding school program. Dr. DeLaurier has evidenced the skill, expertise, and professional competence and leadership to meet this task. (R-11.) As to his future job status and potential, his supervisor concluded: Dr. DeLaurier has the professional and per- sonal characteristics to be considered for a higher administrative position. However, the needs of Devon Aire Elementary School will require his leadership for the 1980- 81 school year. (R-11.) Respondent has been an excellent principal and administrator of Devon Aire Elementary School. He capably opened and operated a new elementary school with a student population between 1,500 and 1,600--with hundreds of additional students in two satellite after-school care programs. He was a loyal, tireless, and dedicated employee: he greeted each new assignment as a challenge, an opportunity for achievement. In light of the unusual demands which were placed upon him, he performed his work competently. While it is clear that he occasionally committed errors in judgment and relied too heavily on his subordinates, such errors pale when viewed in the context of his accomplishments (Testimony of Evans, DeLaurier.) Respondent has earned the respect and friendship of many parents, teachers, and staff members; they petitioned and testified on his behalf, and asked that he be reinstated.
Recommendation Based on the foregoing, it is That respondent receive a written reprimand and forfeit one month's salary for his permitting school employees to perform personal work for him That all other charges against respondent be dismissed; and That he be reinstated to his former position or a comparable position month forfeiture) and related benefits. DONE AND RECOMMENDED this 24th day of Florida. R. L. CALEEN, JR. Hearing Officer The Oakland Building 2009 Apalachee Parkway Florida 32301 (904) 488-9675 Division of Administrative Hearings
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
Findings Of Fact Donald Wieber holds certificate number 192912, Rank II, covering the areas of elementary education, junior college, administration, and supervision, which expires on June 30, 1985. Mr. Wieber, the Respondent, was employed by the Dade County School Board for thirteen years. He served as a teacher for seven years, a Community School Director for two years, an Administrative Assistant to the Principal for three years, and an Assistant Principal for one year. II. FILM AT DEVON AIRE BLOCK AND MASON PRESENT IN OFFICE In August 1980, Donald Wieber was appointed by the school board to serve as assistant principal at Devon Aire. When he began, Emma Mason was already serving as secretary and Sandra Block as librarian. Sometime in late September or early October 1980, Francis G. DeLaurier, the principal, directed Librarian Block to videotape an educational television broadcast by Dr. Willamerle Marshall related to Individual Educational Plans (IEPs), so that it could be shown later to teachers who missed the broadcast. Shortly thereafter, Respondent, at DeLaurier's direction, asked Block if she had made a copy of the "Marshall" tape. Upon finding out that such a tape existed, Respondent then asked Block to set up a videotape machine in DeLaurier's office around noontime for showing the IEP tape. After the videotape machine had been delivered to DeLaurier's office, DeLaurier personally invited Block to see the film. Additionally, around this same time, DeLaurier invited Mason into his office to see the "Marshall" film. WHOSE FILM WAS IT? At approximately 11:00 a.m. on the morning that the film was shown, DeLaurier sent Respondent to investigate a problem with insects. Complaints had been received about children being stung by bees in the area of the portable classroom buildings at Devon Aire. In looking for the bees, Respondent crawled under a portable classroom and found a paper bag. Inside the paper bag was a videotape cassette with no label. After completing the bee inspection, Respondent took the cassette in the bag to DeLaurier's office. When Respondent entered with the bag, DeLaurier was talking on the telephone. He interrupted his call when Respondent showed him the videotape cassette. Respondent indicated where he had found the cassette and stated he did not know its contents. DeLaurier then directed Respondent, "Well, put it on the machine and [let's] see what's on it." DeLaurier then returned to his telephone conversation. As instructed, Respondent placed the tape on the videotape machine and turned it on. SHOWING THE FILM As Respondent was placing the unmarked videotape cassette into the machine, Block and Mason came into DeLaurier's office to fix their lunches and watch the "Marshall" tape. It is undisputed that the tape which Respondent found and which began to play while Mason and Block were watching the screen was a videotape displaying overt sexual activity between naked men and women. However, the tape admitted into evidence as Petitioner's Exhibit 1 is clearly not the videotape which was shown at Devon Aire, and any similarity between that exhibit and the film observed that day is only that--a similarity. The videotape began to play, and Block watched for approximately forty- five seconds. She then said to Mason, who was making a sandwich, "Are you sticking around for this?" Mason answered, "Yes, why not?" However, Mason had not yet looked up and observed the contents of the tape. Block then left DeLaurier's office. Approximately three minutes later, Mason left DeLaurier's office, and the two women went to a nearby office to finish their lunch. After Block and Mason left, DeLaurier completed his telephone call and, for the first time, observed the screen of the videotape machine. It was then that he learned that the unidentified cassette contained such sexually explicit material. DeLaurier and Respondent watched the sexually explicit tape for approximately an additional six to seven minutes. At some point during that lunch hour, Respondent and DeLaurier were joined briefly by Rosalie Luis, who viewed a few seconds of the film and left. At no time were children present in DeLaurier's office while the videotape was being viewed. In fact, the screen was not in a position to be viewed by anyone who did not come into the office and walk to a position where they could view the screen. Additionally, later during that lunch hour, the "Marshall" tape was actually played. After viewing the tape for a few minutes, DeLaurier ordered Respondent to take the cassette and "get rid of it fast." Respondent complied and disposed of the tape by running it through a garbage chute behind the cafeteria. He handled disposal of the cassette in this manner in order to ensure that no child could come into possession of the cassette. KNOWLEDGE AND INTENT At the time the videotape was turned on, Respondent did not have any knowledge of its contents. The videotape machine had been set up to play the "Marshall" tape and, in fact, was used for that purpose. There is no evidence to indicate that Respondent intended to or did lure or trick Block or Mason into seeing a sexually explicit film. After Respondent became aware of the contents of the tape, he and DeLaurier did watch it for approximately seven minutes and another staff person, Ms. Luis, did inadvertently observe a few seconds of the film. To this extent, Respondent did participate in the showing of a film portraying nude bodies and explicit sexual activities at his office at Devon Aire Elementary School during school hours and while members of the school staff were present. THE AFTERMATH After the September incident involving the videotape, Block, Mason and Luis continued to work at Devon Aire Elementary School. Respondent continued to perform his duties, and there was no evidence that the film incident had adversely affected his job performance or his relationship with the school staff and teachers. In fact, between September 1980 and January 1981, the only two persons who were offended by the film (Mason and Block) did not report or complain about the incident to any school authority. Luis was not overly concerned about her exposure to the film, and she continued to work well with Respondent. In January 1981, Mason reported the incident to Renee Kachman, a person generally known to be critical of DeLaurier and who had, in the past, expressed an interest in and intention to get DeLaurier removed from Devon Aire Elementary School. Soon thereafter, the school board launched an investigation. The entire episode became a matter of public interest after a series of articles were published in the Miami Herald. Even after reading the article in the May 2, 1981, issue of the Miami Herald, most of the staff members and teachers at Devon Aire Elementary School signed a petition requesting that Respondent be reinstated as assistant principal. Ultimately, however, the school board instituted dismissal proceedings. III. LIQUOR ON HIS BREATH There is no credible or competent evidence that Respondent was ever present at school during working hours with the odor of liquor on his breath. IV. RESPONDENT'S WORK PERFORMANCE AND OTHER MITIGATING FACTORS Prior to the alleged misconduct, Respondent had an outstanding, and even exemplary, record as both a teacher and administrator. No negative comment or complaint was ever made against him. His evaluations from his superiors, both as a teacher and as an administrator, were excellent, often the highest rating obtainable. In one evaluation, he was recognized as a "dedicated professional who always goes the 'extra mile.'" Respondent was described as a phenomenal teacher by a member of the school board's South Central Area Office staff who had previously worked with him at Key Biscayne Community School. This testimony indicated that Respondent had the ability to motivate children to accomplish far more than they thought they were capable of, and that parents wanted their children to be assigned to Respondent's classroom. Respondent has earned the respect and friendship of many parents, teachers, and staff members. They petitioned and testified on his behalf and asked that he be reinstated.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and the evidence of record, as well as the pleadings and arguments of counsel, it is RECOMMENDED: That the Respondent's teaching certificate be reprimanded. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING, 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 May, 1984. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Alan B. Oppenheimer, Esquire Suite 120, 1515 North West 7th Street Miami, Florida 33125 Ralph Turlington, Commissioner Department of Education The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 21st day of November, 2017.
The Issue The issue to be determined is whether Respondent has violated section 1012.795(1)(c) and (j), Florida Statutes (2007), and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact Respondent is a teacher licensed by the State of Florida, and has been issued Florida Educator's Certificate 400054. Her certification covers the areas of history, physical education, social science, and middle grades, and is valid through June 30, 2014. Respondent was employed by the DCSD since 1981, and taught at several different schools during her employment. During the 2007-2008 school year, she was employed as a geography teacher at Jefferson Davis Middle School (Jefferson Davis). During the 2008-2009 school year, she taught geography at Southside Middle School (Southside). The allegations in this proceeding concern Respondent's behavior during and professional evaluations with respect to the 2007-2008 and 2008-2009 school years. During this period, the DCSD used the Teacher Assessment System (TAS) as the authorized method of evaluating teacher performance. The TAS measures teaching performance based on nine identified "competencies," which are as follows: Promotes student growth and performance; Evaluates instructional needs of students; Plans and delivers effective instruction; Shows knowledge of subject matter; Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; Shows sensitivity to student needs by maintaining a positive school environment; Communicates with parents; Pursues professional growth; and Demonstrates professional behaviors. A teacher's evaluation was based upon two formal classroom observations performed by a school administrator, which was usually the principal or an assistant principal. The teacher was afforded a pre-observation conference at which time the date for the observation was selected and the lesson plan to be taught during the observation was discussed. After the observation, there was a post-observation conference where the administrator's observations, which were recorded on a Teacher Assessment Instrument (TAI) were discussed. In addition to the formal evaluations, administrators also could use informal, unannounced observations of teachers in forming their opinions regarding performance. In the final evaluation conference with a teacher, a form entitled Evaluation of Professional Growth of a Teacher was used to document the instructor's final rating in each competency area and to record the teacher's overall performance rating for the school year. If a teacher demonstrated deficient performance in one or more competency areas, a "success plan" was developed for the teacher in an effort to assist the teacher in improving performance. The elements of the success plan were developed by a success team, typically composed of the teacher, school administrators, teachers with expertise in the relevant subject matter area, and resource teachers or "coaches." These elements, which were developed with input by the teacher being assisted, identified weaknesses by competency category, set out objectives to address these weaknesses, and provided timelines to meet the identified objectives. Addison Davis was the principal at Jefferson Davis from December 2005 through August 2009. He was the principal responsible for evaluating Respondent's performance during the 2007-2008 school year. On August 28, 2007, Mr. Davis conducted an informal "walk through" of Ms. Bowman's classroom. He observed that although the students had been instructed to read, 16 out of 23 of them did not have a book and were doing nothing. Ms. Bowman did nothing to provide these students with a book, and after 21, 31, and 37 minutes of class time respectively, Mr. Davis noted that no instruction had yet taken place. During the "mini- lesson," Ms. Bowman was asking questions and the students were yelling out unison responses, a practice which is not considered an effective teaching method. Mr. Davis's notes regarding the walk-through observation included the following observations: Instructor informed that "the quieter the class, the more hall passes were given out." Instructor asked questions and students were talking about unrelated topics . . . No evidence of learning taking place. No daily objectives were extended. Essential questions and vocabulary were not extended. Standards were not introduced. I asked the instructor for a lesson plan and one was not provide. [sic] Instructor said, "I don't have one." Student called Mrs. Bowman Ms. Bowwow. I had to address the class about gross respect. Mr. Davis observed no implementation of best practices and saw significant classroom management problems. Mr. Davis conducted a formal observation of Ms. Bowman on September 20, 2007, for which appropriate prior notice had been provided. The TAI completed for this observation indicated that all competencies were satisfactory with the exception of one area: plans and delivers effective instruction. Mr. Davis met with Ms. Bowman on September 26, 2007, to go over her TAI. He also spoke to her about calling him a dictator in the teacher's lounge at some point before the meeting. During this conversation, Mr. Davis spoke to Ms. Bowman about developing a success plan for her. Although Ms. Bowman signed her TAI, she informed Mr. Davis that she felt she was being targeted. A success plan meeting was scheduled for Wednesday, October 24, 3007. On October 22, 2007, Mr. Davis went to the cafeteria to remind Ms. Bowman, out of the hearing of students, of the meeting scheduled for later that week. Ms. Bowman stated that she did not have adequate time to arrange for a union representative, and while the two left the cafeteria, continued to express her feeling that she was being targeted. By the time Ms. Bowman and Mr. Davis reached the front office, she was yelling at Mr. Davis in the presence of students and staff, and accusing him of harassing her. When Mr. Davis advised her that she was acting unprofessionally, Ms. Bowman called him a liar. Approximately 30 minutes later, Mr. Davis called Ms. Bowman to his office to counsel her regarding her professional responsibilities. Ms. Bowman continued to claim she was being harassed, and Mr. Davis told her they needed to move forward. In response, Ms. Bowman told Mr. Davis she was not going to "kiss his ass" and walked out, still yelling at him. As a result of these incidents, Ms. Bowman received a written reprimand on October 23, 2007, considered step two discipline for the DCSD. Step one discipline had been imposed for a prior incident during the 2007-2008 school year. Ms. Bowman did not attend the success plan meeting scheduled for October 24, 2007. Despite her refusal to participate, Respondent was placed on a success plan which was implemented on or about November 3, 2007. Ms. Bowman made it clear that she would not participate in completing the success plan, despite repeated encouragement to do so. She refused to attend meetings and completed none of the identified objectives. A revised success plan dated January 18, 2011, was prepared, which reflected that none of the strategies were completed. Ms. Bowman refused to sign the revised success plan and continued to claim that she was being targeted. On December 10, 2007, Mr. Davis conducted an observation of Ms. Bowman, for which she had received notice November 27, 2007. As a result of this observation, Mr. Davis found that Ms. Bowman did not meet the competencies for promotes student growth and performance; plans and delivers effective instruction; and shows knowledge of subject matter. Mr. Davis was especially concerned that during his observation, two students were sleeping, and a third was wearing a hood on her head, which is prohibited. In addition, a significant portion of class time was focused on Sojourner Truth and the role she played in America's history. Teaching about Sojourner Truth, while relevant to geography in terms of cultural change, did not align with the pacing guide for teaching middle school geography at that point in the semester. On January 18, 2008, Ms. Bowman met with Mr. Davis regarding her December 10, 2007, observation, which they had discussed previously on January 2, 2008. A success team meeting was scheduled to occur after Ms. Bowman's meeting with Mr. Davis. During this initial meeting, Mr. Davis provided to Ms. Bowman a Notice of Potential Unsatisfactory Evaluation. Ms. Bowman became very upset during the meeting with Mr. Davis. She started yelling and could be heard by those staff members in the office area, calling Mr. Davis a liar and insisting that he was targeting her. Ms. Bowman refused to participate in the success plan meeting, continuing to insist that she was being targeted and harassed. Shortly after the meeting, Ms. Bowman returned to the office to say that she was leaving because she did not feel well. She called Mr. Davis a "son of a bitch" and said that "If I go down, then I am taking him with me." As a result of her behavior on January 18, 2008, on February 4, 2008, Ms. Bowman received another written reprimand as step three of the progressive discipline plan employed by the DCSD, and the Office of Professional Standards was notified. Ms. Bowman refused to sign the letter of reprimand.1/ An additional formal observation was conducted on January 30, 2008, by Tiffany Torrence, an assistant principal at Jefferson Davis. The TAI prepared for the observation indicated that competencies were not demonstrated for the following areas: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; and demonstrates professional behaviors. On March 3, 2008, Ms. Bowman received an unsatisfactory evaluation for the 2007-2008 school year. The evaluation reflected unsatisfactory ratings for the competencies of promoting student growth and performance; planning and delivering effective instruction; and demonstrating professional behaviors. She received a "needs improvement" for the competency of evaluating instructional needs of students. On May 7, 2008, John Williams, Director of Professional Standards for the DCSD, notified Ms. Bowman that, consistent with DCSD policy, in light of her unsatisfactory evaluation she had the right to elect to stay at Jefferson Davis or be reassigned to another school for the following school year. Failure to make an election by May 16, 2008, on the form provided would result in the automatic transfer to another school. Ms. Bowman did not submit the form and was transferred, consistent with DCSD policy, to Southside Middle School for the 2008-2009 school year. The principal for Southside during the 2008-2009 school year was LaTanya McNeal. In light of Ms. Bowman's unsatisfactory evaluation the previous year, and her own preliminary observations of Ms. Bowman, she initiated a professional development plan for Ms. Bowman on August 28, 2008. The plan identified four areas of focus: 1) to effectively create and maintain a standards-based bulletin board; 2) to effectively create and maintain a standards-based classroom environment; 3) to consistently develop plans based on student data; and 4) to effectively maintain student portfolios with work that meets the outlined standards according to the department checklist. The plan also provided certain goals and timelines for completing these goals, including the continued maintenance of daily lesson plans that reflect the workshop model. Ms. Bowman refused to sign the professional development plan. Ms. Bowman was informally observed on September 5, 2008, and September 24, 2008, with notice provided prior to the observations. Neither observation could be characterized as successful. The Teacher Observation Follow-up Form completed on September 25, 2008, included the following: -Teacher must have daily lesson plans and workshop model for social studies on her board. -Must have daily writing prompts -Portfolios (student) must be maintained consistently. -Per teacher has a problem with the support (amount) that is provided [Instructional coach, Department chair, Professional Development Facilitator and administrator]. On October 22, 2008, Ms. McNeal conducted a formal observation of Ms. Bowman, for which notice was provided. The TAI prepared as a result of the observation indicated in part that there was no evidence of student portfolios and that the students' folders were empty. There was no evidence of differentiated instruction or use of data to guide instruction; portfolios showed no evidence of work artifacts. The form also indicated that one student was sleeping, and Ms. Bowman yelled at him to wake up once someone came to retrieve him from class. In addition, the class was in disarray with Ms. Bowman engaging in shouting matches with the students. It was noted that Ms. Bowman had not initiated any parent/teacher conferences for academic or behavioral reasons. The TAI indicated deficiencies in the following competencies: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; shows sensitivity to student needs by maintaining positive school environment; communicates with parents; and demonstrates professional behaviors. Ms. Bowman did not accept the TAI, and wrote on it that "principal did not tell the truth and was unfair and misleading." On October 28, 2008, Ms. Bowman was provided a Notice of Potential Unsatisfactory Evaluation, with competencies A, B, C, E, F, G and I listed as needing improvement. The Notice notified her that a success plan would be developed with her input and collaboration, with a conference to be held on November 3, 2008. Ms. Bowman refused to sign the Notice. On November 3, 2008, the success team met with Ms. Bowman in attendance, and a success plan was developed. The success plan included the concerns outlined in the professional development plan and focused on data-driven instruction, use of student portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program, which is a classroom management program used throughout DCSD. Consistent with DCSD policy, a success team was created that included Principal McNeal, other administrators, Ms. Bowman, a reading coach, and an instructional coach. In contrast to the experience at Jefferson Davis, Ms. Bowman at least attended the success plan meetings. Consistent with the objectives outlined in the success plan, Ms. Bowman was provided training and technical support for Compass Odyssey and FCAT Explorer, which are computer programs used to assess student needs and to track student progress. However, Ms. Bowman did not use the programs in her teaching and rejected the concept of individualized instruction based on student needs. She did not implement a portfolio system and declined to observe another teacher conducting a parent-teacher conference. As of January 30, 2009, Ms. Bowman had not submitted a five-day lesson plan, which is required of all teachers, despite that fact that the school year was over half-way completed. While Ms. Bowman claimed that she knew how to conduct parent-teacher conferences, Ms. McNeal had received numerous calls from parents upset about the grades received in Ms. Bowman's classes, and the lack of contact with Ms. Bowman. Ms. Bowman continued to complain that she was being singled out and that the success plan was merely a pretext to justify her termination. Although the success plan was deemed "completed" on February 25, 2009, Ms. Bowman did not incorporate the concepts identified in the success plan into her classroom instruction. To the contrary, it appears that Ms. Bowman's instructional methods did not change at all. Ms. McNeal conducted another formal observation of Ms. Bowman on March 11, 2009, in the afternoon. FCAT testing had taken place earlier in the day and Ms. Bowman thought it unfair to be observed on that day. However, she designated the date for observation during her pre-observation conference on March 6, 2011. The TAI indicates that competencies were not satisfactory for the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management techniques; shows sensitivity to student needs by maintaining positive school environment; and communicates with parents. Ms. McNeal noted on the TAI that a recent grade printout showed high levels of D's and F's for Ms. Bowman's students. For example, the printout dated March 5, 2009, indicated that out of 16 students in her first period class, five students had F's and two had D's. Of the 24 students in her second period class, 13 were failing and two had D's. Ms. Bowman was offered significant assistance to improve her performance. Ms. Bowman attended training opportunities on 14 school days where substitutes were arranged to handle her teaching duties. She was also offered the assistance of instructional and reading coaches, which she consistently rejected. On March 13, 2009, Ms. McNeal issued an Evaluation of Professional Growth of Teacher for Ms. Bowman. The overall evaluation resulted in an unsatisfactory rating, with unsatisfactory ratings in the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management; shows sensitivity to students by maintaining positive school environment; and communicates with parents. Ms. Bowman was rated as needing improvement in the areas of planning and delivering effective instruction and demonstrating professional behaviors. Ms. Bowman signed the evaluation but indicated that she did not accept it, noting that her observation was conducted on a day of FCAT testing. Ms. Bowman attacked the credibility of the principals at both Jefferson Davis and Southside, stating that they were targeting her and retaliating against her. However, no credible evidence was presented to show any basis for Mr. Davis or Ms. McNeal to retaliate against her. Moreover, as noted in the Recommended Order in Duval County School Board v. Bowman, Case No. 09-3004 (Fla. DOAH Jan. 12, 2010; DCSD Mar. 15, 2010), Respondent's work history indicates a pattern of blaming others for poor evaluations. On May 5, 2009, Respondent was notified by the Superintendant of Schools for DCSD, that based upon her two successive unsatisfactory evaluations, he was recommending that her employment be terminated. Ms. Bowman requested a hearing pursuant to chapter 120, and the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. After completion of a hearing, on January 12, 2010, a Recommended Order was issued recommending termination of Ms. Bowman's employment in Duval County School Board v. Bowman, Case No. 09-3004. A Final Order adopting the Recommended Order and terminating Ms. Bowman's employment was entered by the Duval County School Board on March 12, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent has violated the section 1012.795(1)(c) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), and revoking her educator's certificate. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of January, 2012.
Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988.
The Issue Whether Petitioner, Brevard County School Board (Petitioner or Board), has just cause to terminate Respondent, Emily M. Randall (Respondent or Randall) from employment with the school district.
Findings Of Fact The Parties Petitioner is the entity charged by law with governing and administering the Brevard County School District and is responsible for all employees of the school district. Disciplinary actions, such as the instant case, fall within the jurisdiction of the Board. At all times material to this case, Respondent was an employee of the School Board who served as an itinerant school psychologist. The Charges By letter dated December 9, 2014, Superintendent Binggeli recommended Respondent be terminated from her position with the Board. The letter claimed Respondent had been willfully absent without leave; had failed to follow directives of her supervisor, constituting gross insubordination and willful neglect of duty; had repeatedly lied to supervisors, constituting misconduct in office; and had reported to a disciplinary meeting in a condition violating the Drug-Free Workplace Policy, constituting misconduct in office. Respondent asserts that she should not be terminated for acts or omissions occurring prior to November 21, 2014, and that the Board failed to properly establish Respondent was “intoxicated” on that date. Background Information Petitioner employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. As a school psychologist, Respondent was responsible for conducting psychological evaluations for students who may require services for learning disabilities, emotional handicaps, or behavioral disorders. Psychological assessments are critical to the evaluation of exceptional students and serve to assist instructional staff to provide appropriate educational plans for students meeting criteria for support services. It is critical that such evaluations be timely performed, documented in accordance with law, and communicated to the appropriate personnel so that exceptional students may receive needed services. Eligible students do not receive exceptional services until all documented paperwork is completed. At all times material to this case, Respondent was required to complete her psychological educational assessments within 60 days. All school psychologists, including Respondent, were assigned as “itinerant” workers. Typically, school psychologists are directed to work at three or four schools. At each school the school psychologist teams with instructional staff, guidance counselors, and administrators to forge appropriate plans for exceptional students. The school psychologist is an essential member of the team. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with all those involved. Additionally, school psychologists must respond to crisis situations as directed by the coordinator of psychological services. It is essential that the Psychological Services Department (Department) know the schedule of all school psychologists and be able to reach them by telephone. Beginning in August of 2013, the coordinator of psychological services, Dr. Maggie Balado, gave all school psychologists her personal contact information so that absences from work could be promptly reported. School psychologists were given the option of contacting Dr. Balado directly or the Department’s secretary, Ms. Beyer, if they would be absent from their scheduled school assignment. Requiring school psychologists to contact the Department to report absences was a continuation of the policy that pre-dated Dr. Balado’s appointment to the coordinator position. In September of 2013, Dr. Balado also advised all school psychologists that they would be required to comply with the 60-day guideline for completing student evaluations. The requirement also pre-dated Dr. Balado becoming the coordinator. Performance Concerns In January of 2014, Dr. Balado learned that Respondent had been absent on December 17 and 19, 2013, and January 6 and 7, 2014. Because Respondent had not reported the absences as required by the Department policy, Dr. Balado reminded Respondent of the correct protocol for missing work and directed her to comply with the policy in the future. At all times material to the allegations of this case, Respondent had adequate leave time to miss work. Reporting the absence was still required by the policy. School psychologists are required to complete personnel allocation forms to allocate and track funding. Respondent failed to timely complete the funding forms despite being reminded. When Dr. Balado completed the performance evaluation for Respondent for the 2013-2014 school year, she noted that Respondent was out of compliance with four student evaluations and had 29 referrals that were to be completed for the school year. As a result, Dr. Balado rated Respondent as needing improvement in the categories of managing the learning environment, ethical leadership, and technology. Dr. Balado met with Respondent to go over the concerns and Randall indicated that she would work to improve her performance. Dr. Balado then met with Dr. Beth Thedy, assistant superintendent for Student Services, and decided to place Respondent on a professional development assistance plan to identify the issues that needed improvement and give Respondent a plan to show performance improvement. On August 18, 2014, Dr. Balado and Dr. Thedy met with Respondent to go over the performance issues and to discuss the improvement plan. Respondent did not raise any questions regarding what was expected. Despite being aware of the improvement plan, Respondent did not meet compliance standards for student evaluations. Moreover, Respondent never suggested to Dr. Balado or Dr. Thedy that an accommodation was needed in order for her to meet compliance standards. On October 2, 2014, Respondent did not timely respond to Dr. Balado’s attempts to contact her. Tangled Webs Were Woven On October 30, 2014, Respondent was assigned to be at Coquina Elementary School (Coquina Elementary) in Titusville. The school is located approximately 40 minutes from Respondent’s home, and she was to be there to watch a meeting with Enis Messick, the guidance counselor. After the meeting with Ms. Messick, Respondent planned to evaluate a student. Due to technical difficulties unknown to Respondent, Ms. Messick’s meeting was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. Respondent did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. Failing to report her absence in accordance with prior directives, violated the attendance policy for the Department. Respondent had adequate leave to be absent from work on October 30, 2014. Failure to telephone her absence or e-mail the proper persons was a violation of a reasonable directive given to her on more than one prior occasion. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent (encompassing Coquina Elementary School), contacted Dr. Balado and informed her that Respondent was not at her assigned school that day. Thereafter, Dr. Balado telephoned Respondent and asked her where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary School when she was not (Lie #1). Suspicious of this statement, Dr. Balado directed Respondent to go into the school office and call her back on the landline at the school. Although Respondent indicated she would do so, she did not (Lie #2). Dr. Balado then called Coquina Elementary’s Principal Katrina Hudson who advised that Respondent had not been seen at the school that day (hearsay later corroborated/admitted by Respondent at a later date). Respondent, next, told Dr. Balado that she went into the school’s office as directed but did not feel comfortable using the school’s telephone to call her back (Lie #3). Dr. Balado was understandably concerned that Respondent had misrepresented the events of October 30, 2014. Dr. Balado, next, communicated the events of October 30, 2014, to Dr. Thedy who placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, a meeting was held to review the events of October 30, 2014. Present were Dr. Thedy; Jim Hickey, director of Human Resources and Labor Relations; and Respondent. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30, 2014, and that she could prove it (Lie #4). Respondent said Enis Messick would verify she had been at Coquina Elementary on October 30, 2014 (Lie #5). Ms. Messick did not see Respondent at the school on the date in question. Ms. Messick corroborated that Respondent had phoned her to advise that she would not be at the school. Respondent later stated that she had sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014 (Lie #6). None of Respondent’s initial accounts of the events of October 30, 2014, were true or justified not reporting her absence as required by her supervisor, Dr. Balado. Finally, when Mr. Hickey requested that Respondent provide a written statement setting forth the events of October 30, 2014, Respondent relented and admitted she had previously lied. The Aftermath Following Respondent’s admission and further consideration of her behavior by Mr. Hickey, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. At the November 12, 2014, meeting, Respondent claimed that she had filed for an accommodation to assist her so that she could timely prepare the reports required by her job. Respondent claimed that in 2010, she had made Petitioner aware of her need for an accommodation due to a wrist problem that made typing difficult. To address the accommodation request in 2010, Petitioner provided Respondent with a dictation software program known as Dragon. The software allowed Respondent to dictate the portions of her reports that required typing. After the software was provided, Respondent did not renew her request for an accommodation nor did she suggest the solution provided by the Board was inadequate to meet her needs. At all times material to the conversations between Respondent and Dr. Balado, Randall never mentioned a physical limitation kept her from meeting the timelines applicable to her work. Respondent’s late-mentioned comment regarding this 2010 accommodation has not been deemed credible or persuasive as a basis for not completing her work assignments in a timely manner. The performance improvement plan developed by Dr. Thedy and Dr. Balado would have appropriately addressed the deficiency in Respondent’s work. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the Board. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding Respondent’s performance and behavior. In anticipation of the November 21, 2014, meeting, Petitioner’s staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze to her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as Petitioner hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of the offer. On November 21, 2014, Respondent, her husband, and her lawyer met with Mr. Hickey, Dr. Thedy, and Dr. Balado. Based upon Respondent’s behavior and demeanor at the meeting, Petitioner’s attendees became suspicious of Respondent’s condition. Respondent’s demeanor shifted from crying and emotional to questioning and anger. Respondent was disheveled, her eyes were red and watery, her skin was flushed, and she was shaking. Coupled with what Mr. Hickey, Dr. Thedy and Dr. Balado noted was a strong odor of alcoholic beverage, Respondent’s demeanor gave Petitioner’s employees the concern that Respondent was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. After being directed to undergo a reasonable suspicion breathalyzer examination, Respondent submitted to the test performed by Kathy Krell, the Drug and Alcohol Program Administrator for Petitioner. Ms. Krell has been fully-trained to administer breathalyzer examinations, has held the position with the Board for over 20 years, and has performed thousands of tests, such as the one given to Respondent. Ms. Krell performed Respondent’s examination in accordance with all testing guidelines and as routinely completed in the regular course of business for the Board. The final results of Respondent’s breathalyzer demonstrated that on November 21, 2014, at approximately 2:45 p.m., Respondent had an alcohol level of .104. This level is above the legal level for driving in the State of Florida. Respondent voluntarily submitted to the breathalyzer examination and has provided no credible explanation for the test results. Instead, Respondent challenged the results and maintains that her conduct, demeanor, appearance, and test results do not establish that she was intoxicated on November 21, 2014. It is determined that contrary to Respondent’s assertion, on November 21, 2014, at approximately 2:45 p.m., while attending a school meeting on School Board property to address her future employment with Petitioner, Respondent was under the influence of some alcoholic beverage or substance such that she was, in fact, impaired or intoxicated. To suggest that she was fully capable of functioning with an alcohol level of .104 is both contrary to common sense and the facts of this case. Respondent failed to maintain a professional demeanor and was unable to maintain a consistent appearance and behavior. When the results of the breathalyzer were made known to the parties, Petitioner withdrew the disciplinary offer then pending for Respondent’s acceptance. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to Petitioner’s employment assistance program (EAP). The EAP is available to Board employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges their issue, participates, and agrees to seek help for their problem, the employer typically works to return the employee to the work environment. In this case, Dr. Binggeli recommended that the Board terminate Respondent’s employment on December 9, 2014. At its December 16, 2014, meeting, Petitioner voted to terminate Respondent’s employment with the school district and the instant administrative challenge to the decision ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s employment with the Brevard County School District be suspended until such time as Respondent can show that she has successfully completed continuing educational courses related to the ethical standards expected of her, that her salary be frozen at the level of compensation for the 2013-2014 school year, that she does not receive any back pay or other compensation for the duration of her suspension, and that she be placed on a professional improvement plan to assure monitoring and compliance with all requirements of her job. DONE AND ENTERED this 30th day of December, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of December, 2015. COPIES FURNISHED: Wayne L. Helsby, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Scarlett G. Davidson, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 (eServed) Joseph E. Culmer, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 Dr. Desmond K. Blackburn, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
