The Issue The issue for determination is whether Respondent should be suspended, with or without pay, and terminated from employment with Petitioner for the offenses set forth in the Administrative Complaint.
Findings Of Fact Mr. Kushch has been employed with the School Board since around September 1999. No dispute exists that, at all times material hereto, Mr. Kushch was an instructional employee with the School Board. In September 1999, upon employment with the School Board, Mr. Kushch signed an acknowledgment that he had read The Code of Ethics of the Education Profession and The Principles of Professional Conduct for the Education Profession in Florida; that he accepted the obligation and responsibility placed upon him; and that he recognized his rights as a member of the education profession in Florida. For the 2008-2009 school year, Mr. Kushch was employed as a science teacher at Coconut Creek High School. Before coming to Coconut Creek, Mr. Kushch's teaching experience was as a teacher in middle school; he had not taught in a high school setting. In middle school, he saw himself as not using traditional methods in teaching, but as providing an atmosphere for students to learn; and he carried this teaching philosophy with him to high school at Coconut Creek. In the fall of 2008, Coconut Creek's football team, which was 99 percent African American, was in the play-offs. In October 2008, Mr. Kushch, who is white, was allowed by the team's coach to give a motivational speech; he had previously given motivational speeches to the players. However, during his speech, Mr. Kushch used racially discriminatory words and profanity, including "nigger" and "fucked in the ass." The football coach and some of the players complained to Coconut Creek's administration. Mr. Kushch wrote a letter of apology to the football coach for the remarks that he had made. On October 30, 2008, the Intern/Assistant Principal, Missy Jones, held a meeting with Mr. Kushch regarding the racially discriminatory words and profanity that he had used during his speech. Additionally, among other things, Ms. Jones discussed with him what was expected of him in the future regarding his behavior: [T]o speak professionally at all times on campus and at any school-related activities. [T]o be respectful of all students and strive to make them feel accepted and comfortable. [T]o limit all classroom discussions to the curriculum assigned. At the hearing, Mr. Kushch admitted to using the racially discriminatory words and profanity during his speech and that they were inappropriate. No further incidents, involving racially discriminatory words or profanity, occurred. Later, in the 2008-2009 school year, Mr. Kushch was involved in several other incidents. In the spring of 2009, a talent show, scheduled for April 15, 2009, was being organized at Coconut Creek. The coordinator of the talent show was Larry James, a teacher. Mr. James encouraged both students and faculty to participate. All participants were required to audition before they were accepted in the talent show and Mr. James was conducting all auditions. A notice, regarding the audition requirement, was sent through Coconut Creek's email system. Mr. Kushch planned to participate in the talent show and had arranged a dance skit and rap song on science. Due to miscommunication, he did not audition and was, therefore, excluded from the talent show. Mr. Kushch was upset that he was excluded. He sent numerous emails to Mr. James regarding his exclusion from the talent show. Mr. James did not respond to the numerous emails. Also, after the talent show, around April 28, 2009, Mr. Kushch confronted Mr. James after school at cheerleader practice and in the presence of students regarding his exclusion from the talent show. Mr. Kushch became angry and aggressive towards Mr. James, who removed himself from the situation, fearful that the situation might escalate. Mr. James sought out administration in the main office and located Ms. Jones, who calmed him (Mr. James) down. Additionally, in April 2009, Coconut Creek's Security Specialist, Christine Ferguson, observed Mr. Kushch in the guidance office engaging in inappropriate behavior. Ms. Ferguson was at the door to the guidance secretary's office when she heard loud voices coming from the guidance counselor's cubicle. She observed Mr. Kushch and another male, who was a parent, yelling loudly at one another. Also, another staff person and a student were in the cubicle. Ms. Ferguson was compelled to ask Mr. Kushch to leave the guidance office, and he did. At hearing, Mr. Kushch admitted that he was "speaking loudly" in the guidance office. Ms. Jones considered Mr. Kushch's behavior and conduct with his co-workers to be adversarial and confrontational. Concerned with his behavior and conduct, she decided to refer him to the School Board's Employee Assistance Program (EAP), which is designed to assist employees. On May 8, 2009, Ms. Jones held a meeting with Mr. Kushch and discussed with him, among other things, his adversarial and confrontational behavior and conduct with his co-workers. She also discussed with Mr. Kushch the need for him to follow the curriculum in that he was deviating from the biology lesson plan, e.g., he engaged the students in a research assignment designed to determine why Coconut Creek was designated an "F" school. At that time, Ms. Jones referred Mr. Kushch to the EAP, with both of them signing the referral. During the discussion, at no time did Mr. Kushch appear to be upset or confrontational. At the end of the meeting, the two of them shook hands, and Ms. Jones directed Mr. Kushch to return to his classroom in that the school's bell had rung, and Mr. Kushch complied. However, when Mr. Kushch returned to his classroom, his behavior in the classroom upset his students. One of the students believed that Mr. Kushch stated that he was going to blow-up the school; the student reported it to Ms. Ferguson. Additionally, some of the students reported to Ms. Ferguson that Mr. Kushch told the students to get "your asses inside [the classroom]" and "your asses are mine"; referred to a student as a "git," which is a gangster in training; and referenced students acting "as babies . . . sucking on their momma's tits." Also, some of the students reported that they became upset and angry and left the classroom. At hearing, Mr. Kushch admitted using the phrases "your asses inside [the classroom]"; "your asses are mine"; "git"; and "as babies . . . sucking on their momma's tits." Furthermore, he admitted that his use of the phrases and his behavior with the students were inappropriate, could be perceived as unprofessional, and were unprofessional. At hearing, Mr. Kushch denied stating that was going to blow-up the school. The more convincing evidence is that he did not make the statement. Having been notified of the alleged behavior and conduct of Mr. Kushch, Ms. Jones immediately requested an investigation of Mr. Kushch by the Special Investigative Unit (SIU) of the Professional Standards Committee (PSC) for creating a hostile environment and inappropriate behavior. Additionally, she wanted and requested his removal from the classroom. By Notice of Investigation dated May 8, 2009, Joe Melita, the Executive Director of PSC and SIU, notified Mr. Kushch, among other things, about the investigation being conducted by the SIU. Further, by letter dated May 8, 2009, Mr. Melita notified Mr. Kushch, among other things, that he was placed on administrative leave and reassigned to Materials Logistics. After the investigation, the PSC found probable cause that Mr. Kushch had engaged in misconduct and created an offensive or hostile work environment and recommended termination of Mr. Kushch from his employment. A pre-disciplinary conference was subsequently held with Mr. Kushch. After the pre-disciplinary conference, the Superintendent recommended the suspension, without pay, of Mr. Kushch pending a final determination by the School Board on his termination from employment. On February 2, the School Board approved the termination of Mr. Kushch's employment with it. Mr. Kushch timely challenged the School Board's action. No criminal charges were brought against Mr. Kushch regarding the incident at Coconut Creek on May 8, 2009. No prior disciplinary action has been taken against Mr. Kushch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Paul Kusch for six months and requiring his enrollment in professional skills enhancement programs. DONE AND ENTERED this 1st day of October 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2010.
The Issue Whether the Respondent committed the violations alleged in the letter dated February 14, 2002, and in the Notice of Specific Charges filed April 3, 2002, and, if so, whether the Respondent should be dismissed from his employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes (2001). Mr. Fullington is employed by the School Board as a journeyman Plumber II, and, prior to his suspension in February 2002, he was assigned to the North Satellite office of the School Board's Maintenance Department. He is represented by the Dade County School Maintenance Employee Committee, which has a contract with the Miami-Dade County public school system ("DCSMEC Contract") effective June 2001 through September 30, 2002.3 Mr. Fullington has worked for the School Board for 19 years; he began in 1983 as a laborer and worked his way up to journeyman plumber, which requires a five-year apprenticeship. In 1994, the School Board suspended Mr. Fullington and initiated proceedings to dismiss him from his employment, alleging that he had committed misconduct in office by forging the signatures of two of his supervisors on school district documents. After an evidentiary hearing, a Recommended Order was entered by a School Board hearing officer, who noted that Mr. Fullington admitted the charges but was remorseful and presented evidence of mitigating factors. The hearing office concluded that Mr. Fullington should not be dismissed from employment and recommended that Mr. Fullington be suspended without pay for four months. The School Board entered a Final Order on August 23, 1995, in which it adopted the hearing officer's Recommended Order and imposed the penalty recommended by the hearing officer. Mr. Fullington was promoted from an apprentice plumber to a journeyman Plumber II in January 1998. Leo Akers has been Mr. Fullington's foreman for seven or eight years.4 According to Mr. Akers, Mr. Fullington's job performance was, until his suspension, adequate, although his work was excellent when he was an apprentice. In Mr. Akers' experience working with Mr. Fullington, he has always performed his job assignments. Mr. Akers has never reported Mr. Fullington to his superiors for a discipline problem, he has had no difficulties working with Mr. Fullington, and he has received no complaints about Mr. Fullington from his co-workers. Prior to the incidents giving rise to this proceeding, the only disciplinary action taken by the School Board against Mr. Fullington was the four-month suspension in 1995. In June 1997, Mr. Fullington and his co-worker Steven Montgomery were commended by the principal of a Miami-Dade County elementary school, who wrote a letter to Max Metzger, the Director of the North Satellite of the Maintenance Department, praising Mr. Fullington and Mr. Montgomery for their work re- piping the school's broken water system. The principal stated among other things that "[t]he actions, behavior and cooperativeness of these two men deserve great recognition and applause, because our school operation was normal and free of major disruption as they worked." Solicitation for prostitution. Mr. Fullington was assigned overtime work on Saturday, August 18, 2001. When he reported to work at approximately 6:00 a.m., Mr. Akers, his foreman, met Mr. Fullington and told him to drive a School Board van to a plumbing supply house to pick up a load of pipe needed for the job. Mr. Fullington was then to meet Mr. Akers and two other plumbers at the job site, where they were installing the plumbing for a kitchen at one of Miami-Dade County's trade schools. On the way to the supply house, Mr. Fullington initially drove down Interstate 95, but he decided to avoid the traffic and take Second Avenue. As he drove down Second Avenue, he saw a young woman standing on the corner of Northwest 79th Street and Second Court, and he thought he recognized her as someone he knew in high school and from his neighborhood. Mr. Fullington turned the van around and drove back to speak to the woman. He pulled the van over to the side of the street, and he and the young woman engaged in a short conversation. According to Mr. Fullington, the encounter consisted of the following: He approached the young woman in the School Board van and told her that she looked familiar and that he thought he knew her. She responded that he looked familiar, and she asked him what he was doing. He responded that he was working; she responded that she was working, too. Mr. Fullington testified that, when he realized what the woman meant, he began to laugh because he was embarrassed that he had stopped, and he drove away. The young woman was actually Officer Robin Starks, an undercover police officer working on a "prostitution detail," posing as a decoy. During her time with the Miami Police Department vice unit, Officer Starks has participated in at least 200, and maybe more, prostitution details. On August 18, 2001, she was assigned to work on the prostitution detail from 4:00 a.m. to 9:00 a.m., during which time she made five or more arrests. Officer Starks testified that, when she is working as a decoy on a prostitution detail, she does not do anything that would make a person think she was a prostitute: She does not walk provocatively or wave at passers-by but just stands on a corner; she normally wears shorts or a skirt, and she never dresses like a prostitute but always dresses the way she would normally dress at home. She did not recall specifically what she was wearing on August 18, 2001. After the short conversation, Officer Starks turned and walked away from Mr. Fullington, who had remained seated in the van, and he drove away. She gave a signal to another person on the detail that Mr. Fullington should be arrested, and she proceeded to a nearby police vehicle and completed the narrative portion of an arrest affidavit with the following information: While working in an undercover capacity, defendant drove up in a large silver utility van bearing tag 100195 and M-768 affixed on the back of the vehicle. Defendant called this officer over and offered $10.00 dollars for some head. Take down signal was provided, units were notified and the defendant was apprehended.[5] The Arrest Affidavit was not signed by a notary in Officer Starks' presence, and Officer Starks' did not participate further in the events surrounding Mr. Fullington's arrest. According to that portion of the Arrest Affidavit completed by the officer who actually took him into custody, Mr. Fullington was arrested at 7:48 a.m. at Second Avenue and Northwest 75th Street and charged with soliciting to commit prostitution. He was taken in a police car to a substation, and the School Board's utility van was impounded. Mr. Fullington was in a panic after his arrest. The police officer tried to calm him and explained that he would not be put in jail but that he must sign the Arrest Affidavit before he could be released to return to work. Mr. Fullington signed the arrest affidavit, indicating that he would appear in court, and the police officer then told him he would have to pay $1,000.00 to get the School Board's vehicle out of the impoundment lot. The police officer drove Mr. Fullington to a Publix supermarket in his squad car so that Mr. Fullington could get cash from his savings account from the ATM. Mr. Fullington had only $860.00 in his savings account, and the police officer loaned him the additional $140.00. Mr. Fullington paid the $1,000.00 and got the School Board van out of impoundment. Before he left the substation, Mr. Fullington called Mr. Akers and told him he had an emergency and could not pick up the plumbing supplies. Mr. Akers told Mr. Fullington to report to the work site when he had taken care of the emergency. He reported for work at around 11:00 a.m. and told Mr. Akers a totally fabricated story to explain his absence. At the hearing, Mr. Fullington expressed remorse for having told Mr. Akers a lie but explained that, at the time, he was not thinking rationally and did not want anyone to know that he had been arrested for soliciting prostitution.6 On October 2, 2001, the criminal case against Mr. Fullington on the charges of offering to commit prostitution was closed with adjudication withheld and community service. Overtime hours. In accordance with the usual procedure, Mr. Akers completed a Facilities Support Services Weelky [sic] Overtime Report for each of the plumbers working on August 18, 2001, and left the forms at the job site. Each plumber was to sign his form at the end of the day to certify the number of overtime hours he had worked; the forms were then to be submitted to Mr. Akers for his review. Mr. Fullington signed the Weekly Overtime Services form with his name on it, which reflected that, on August 18, 2001, he had worked at the "Dorsey Skill" site from 6:00 a.m. until 4:30 p.m., for a total of 10 hours of overtime. Above his signature, was the following statement: "I certify that the work and hours indicated above are true and correct." It was Mr. Fullington's responsibility to ensure that the correct number of overtime hours was reported on the form. Mr. Fullington also signed a Daily Status Form for Maintenance and Operations on August 18, 2001, that showed that he had worked a total of 10 hours overtime, consisting of one hour of overtime travel and 9 hours of overtime. At the hearing, Mr. Fullington explained that he was so distracted by the events of August 18, 2001, that he signed both forms without looking at them. After Maintenance Department administrators learned that Mr. Fullington had inaccurately reported his overtime hours for August 18, 2001, he was advised that he could submit a Weekly Overtime Report and a Daily Status Report reflecting the number of hours that he had actually worked on August 18, 2001, and that he would get paid for those hours. Mr. Fullington did not submit the corrected forms and has not been paid for the hours of overtime that he actually worked on August 18, 2001. Additionally, Mr. Fullington never asked for, or received, reimbursement from the School Board for the $1,000.00 he paid to recover the School Board van from the impoundment lot. Post Office incident At around 12:30 p.m. on October 31, 2001,7 during their lunch hour, Robert Brown, the District Director of Maintenance Operations for the Miami-Dade County public school system, and Peter Vadas, Mr. Brown's co-worker, stopped at a post office so Mr. Vadas could purchase stamps. Mr. Brown saw a School Board van parked in the post office parking lot, and he waited in the car while Mr. Vadas went into the post office so he could keep the van under observation. After a few minutes, Mr. Vadas returned to the car. While Mr. Vadas was buckling his seat belt, Mr. Brown saw Mr. Fullington walking across the post office parking lot with a letter in his hand. The letter Mr. Fullington picked up was a certified letter from the School Board's Office of Professional Standards. Mr. Fullington was in the post office approximately 10 minutes. Mr. Brown observed Mr. Fullington get into the School Board van, where he sat and read the letter. As he and Mr. Brown sat in the post office parking lot observing Mr. Fullington read his letter, Mr. Vadas telephoned Kenny McFarland to report that Mr. Fullington was at the post office in a School Board van. Mr. McFarland, a Coordinator II at the North Satellite of the Maintenance Department, is a senior administrator who was in the supervisory chain-of-command for Mr. Fullington.8 After reading the letter, Mr. Fullington drove off, and Mr. Brown and Mr. Vadas returned to their office. Mr. Fullington's regular, assigned lunch half-hour was 11:30 a.m. to 12:00 p.m. This time could be changed with permission from his foreman. The post office that Mr. Fullington visited was located approximately 10 miles from the schools at which he was assigned to work that day. Incident involving Mr. Akers. On November 2, 2001, Mr. Fullington picked up his work assignments as usual from the "foreman's table" in the large office in which a number of maintenance foremen had their desks and work areas. At the time, there were perhaps 15 or 20 people in the foremen's office. The paperwork for Mr. Fullington's work assignments was affixed to a clipboard made of aluminum. Mr. Fullington was assigned to work with Steven Montgomery and, as they were walking to the truck with their assignments, Mr. Montgomery told Mr. Fullington that he overheard Mr. Akers telling someone that Mr. Fullington never showed up at a particular school to complete a work order. Mr. Montgomery believed that Mr. Akers was repeating something that someone else had told him about Mr. Fullington, and Mr. Montgomery told Mr. Fullington that he needed to clear up the misunderstanding. Mr. Fullington was upset to hear that Mr. Akers believed he had not completed a work assignment, and he wanted Mr. Akers to know that the information he was repeating was not correct. Mr. Fullington asked Mr. Montgomery to go back to the foremen's office with him so he could resolve the matter immediately. Mr. Fullington and Mr. Montgomery went back into the foremen's office area. Mr. Akers was sitting at his desk, which was made of metal. Mr. Fullington approached the desk and dropped the metal clipboard he was carrying onto the top of Mr. Aker's desk, next to his computer, in such a manner that it made a loud noise. Mr. Fullington began "hollering" at Mr. Akers, saying something about Mr. Akers trying to set him up.9 It was clear to Mr. Akers that Mr. Fullington was upset and angry, but Mr. Akers did not have any idea what Mr. Fullington was talking about. At the time, Mr. Akers felt threatened by Mr. Fullington; he was caught off guard by the outburst and does not recall saying anything in response to Mr. Fullington's accusations. When Mr. Fullington left the foremen's office, he forcefully kicked or pushed open the door to the hallway. Although Mr. Akers considered the incident very serious, he did not report the incident to his supervisor or call the police or security. Another foreman, John DiGregorio, who was in the room at the time of the incident, became nervous during the incident, primarily because of Mr. Fullington's size.10 Mr. DiGregorio immediately called his supervisor, Frank Brighton, whose office was on the floor above that of the foremen. Mr. Brighton came down to the foremen's office and questioned Mr. DiGregorio and Mr. Akers about the incident. Mr. Brighton reported the incident to Mr. Akers supervisor, Anthony Adams. Several days after the incident, Mr. Fullington asked Mr. Akers if he had felt threatened during the incident; Mr. Akers responded in the affirmative, and Mr. Fullington apologized. At the hearing, Mr. Fullington testified that he felt very badly about having raised his voice to Mr. Akers in anger. He explained that, at the time, he was under a lot of pressure because the Conference-for-the-Record to discuss the events of August 18, 2001, was scheduled for November 6, 2001, and he was concerned that his job with the School Board was in jeopardy. Mr. DiGregorio, who has been a maintenance foreman with the School Board for 10 years, had never previously seen Mr. Fullington act in any way that could be considered hostile or threatening. Mr. DiGregorio described Mr. Fullington's demeanor as generally gentle and non-threatening. In the years that Mr. Akers has worked with Mr. Fullington as his foreman, the only time Mr. Fullington ever raised his voice in Mr. Akers' presence was during the November 2, 2001, incident. Subsequent to the incident, Mr. Akers did not feel that he needed any protection from Mr. Fullington, they continued their usual good working relationship, and Mr. Fullington's job performance continued to be satisfactory. November 6, 2001, Conference-for-the-Record. On November 6, 2001, Reinaldo Benitez, an Executive Director of the School Board's Office of Professional Standards, held a Conference-for-the-Record with Mr. Fullington to address Mr. Fullington's arrest for offering to commit prostitution, to review his record with the School Board, and to discuss his future employment status with the Miami-Dade County public school system. Mr. Fullington's inaccurate reporting of the overtime hours he worked on August 18, 2001, was also discussed. Mr. Fullington's prior disciplinary record was set forth in the Summary of the Conference-for-the-Record. With the exception of the four-month suspension in 1995, the only disciplinary action taken against Mr. Fullington was a verbal reprimand in 1990 for improper conduct. Mr. Fullington was given an opportunity at the Conference-for-the-Record to consider resigning his position; he refused. The following directives were given to Mr. Fullington on November 6, 2001: Adhere to all M-DCPS School Board Rules at all times, especially 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct. Honor your work hours from 7:00 a.m. to 3:30 p.m. Adhere to all maintenance procedures and regulations at all times. Adhere to the most direct route when traveling from location to location, unless you obtain authorization from your supervisor. Refrain from submitting any fraudulent documents to M-DCPS at any time. Mr. Fullington was advised that dismissal from his employment was a potential disciplinary action. After the November 6, 2001, Conference-for-the-Record, Mr. Vadas, District Director of Maintenance Operations; Max Metzger, the Director of Maintenance Operations at the North Satellite; and James Monroe, Executive Director of Facilities Operations, met and reviewed the data submitted at the conference. As a result of their deliberations, Mr. Vadas sent a memorandum, dated November 13, 2001, to the Office of Professional Standards recommending that Mr. Fullington be terminated from his employment with the School Board.11 No one asked for Mr. Akers' input on the recommendation, discussed the recommendation with him, or explained to him the reasons for the recommendation that Mr. Fullington's employment be terminated. There is no evidence that, prior to his suspension in February 2002, Mr. Fullington violated any of the directives given on November 6, 2001. November 16, 2001, Conference-for-the-Record. On November 16, 2001, Mr. Metzger, held a Conference- for-the-Record, the purpose of which was "to address your [Mr. Fullington's] failure to follow the Maintenance Department's policies and procedures as they pertain to the use of M-DCPS vehicles, your verbal abuse towards your foreperson, and other performance-related issues."12 The administrators at the Conference-for-the-Record discussed a number of the issues with Mr. Fullington, including Mr. Fullington's use of a School Board vehicle to visit a post office on personal business and Mr. Fullington's angry confrontation with Mr. Akers.13 No formal directives were given to Mr. Fullington as a result of this Conference-for-the-Record. Mr. Fullington was, however, reminded of the School Board policy that School Board vehicles are not to be used for personal business,14 of the School Board rules relating to employee conduct and to violence in the workplace, and of several other concerns.15 On January 15, 2002, a meeting was held during which Mr. Fullington was advised of the recommendation that he be dismissed from his employment with the School Board. Mr. Fullington was again offered the option of resigning his position. In a letter dated January 30, 2002, the Superintendent of Schools for Miami-Dade County notified Mr. Fullington that he was recommending to the School Board that, at its February 13, 2002, meeting, it suspend and initiate dismissal proceedings against him for "just cause." A letter to Mr. Fullington dated February 14, 2002, contained confirmation that the School Board had followed the Superintendent's recommendation. Summary Offering to commit prostitution. In the Notice of Specific Charges, the School Board included the allegation that Mr. Fullington "solicited prostitution from an undercover police officer."16 The School Board has, however, failed to establish by the greater weight of the evidence that Mr. Fullington solicited prostitution from Officer Starks. The testimony of Officer Starks and Mr. Fullington has been carefully considered, and there is nothing in either the testimony or the demeanor of Mr. Fullington and Officer Starks or in the other evidence presented on this issue that offers a cogent reason to accept Officer Starks' version of the incident over that of Mr. Fullington. This finding is based on a careful consideration of the totality of the evidence presented in this case relevant to the issue of whether Mr. Fullington solicited prostitution and a careful assessment of the credibility of Officer Stark and Mr. Fullington and of the persuasive value of their testimony.17 Consequently, discipline cannot be imposed on Mr. Fullington based on the allegations in the Notice of Specific Charges that he solicited prostitution. Additionally, the allegations that Mr. Fullington committed the offense while working overtime and while driving a School Board vehicle and that the School Board vehicle was impounded cannot form the basis for the imposition of discipline because the underlying allegation that he solicited prostitution has not been established.18 Reporting incorrect number of overtime hours worked on August 18,2001. In the Notice of Specific Charges, the School Board alleged that Mr. Fullington "falsely reported that he worked ten hours on that date [August 18, 2001]." Mr. Fullington does not dispute that he signed the Weekly Overtime Report and the Daily Status Report on August 18, 2001, certifying that he had worked 10 hours of overtime on that date and that the actual amount of time he worked on that day was not accurately reported on the forms. Even though credence is given to Mr. Fullington's explanation that he was so distraught by the events of August 18, 2001, that he did not look at the number of hours included on the forms, by signing the forms, Mr. Fullington certified that the number of overtime hours shown on the forms was correct. Mr. Fullington, therefore, submitted false information to the School Board, and he was not honest in his dealings with the School Board with respect to the overtime hours he worked on August 18, 2001. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's inaccurate reporting of his hours for August 18, 2001, was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board has failed to prove by the greater weight of the evidence that Mr. Fullington intentionally misrepresented the number of overtime hours that he worked on August 18, 2001. There is no evidence that Mr. Fullington intended to submit inaccurate information or that he engaged in any type of deceitful conduct in an attempt to ensure that he was paid for more overtime hours than he actually worked on August 18, 2001. And, given his many years of employment in the School Board's Maintenance Department, it is reasonable to infer that Mr. Fullington knew that Mr. Akers would have noted the discrepancy before submitting the forms to payroll. Use of the School Board van to go to the post office on personal business. The School Board has proven by the greater weight of the evidence that Mr. Fullington used a School Board vehicle for personal business when he went to the post office at about 12:30 p.m. on October 31, 2001, to collect a certified letter from the School Board. In doing so, Mr. Fullington violated the School Board's policy, set forth in the Maintenance Handbook that expressly prohibits the use of a School Board vehicle for personal business. Under the circumstances, Mr. Fullington committed a minor violation of Maintenance Department policy. Nonetheless, even though a minor offense, Mr. Fullington's use of the School Board's vehicle to go to the post office on October 31, 2001, constitutes the use of his access to School Board vehicles for his personal advantage. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's use of a School Board vehicle for personal business on this occasion was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board failed to present any creditable evidence to support its allegation in paragraph 7 of the Notice of Specific Charges that Mr. Fullington reported that he had worked at Barbara Goleman Senior High School from 7:30 a.m. to 1:00 pm. on October 31, 2001.19 Confrontation with Mr. Akers. Mr. Fullington did not controvert the evidence presented by the School Board that, on the morning of November 2, 2001, he confronted his foreman, Mr. Akers, about a negative comment Mr. Akers reportedly made about Mr. Fullington to other School Board employees; that he was angry and upset; that he shouted at Mr. Akers; and that he angrily and forcefully pushed the door open when he left the foremen's office. The evidence presented by the School Board is also sufficient to establish that Mr. Akers and Mr. DiGregorio perceived Mr. Fullington's behavior as threatening and that Mr. Akers felt fear during the confrontation. The impact of Mr. Fullington's conduct on this occasion is, however, mitigated by the testimony of Mr. Akers that he and Mr. Fullington worked together in a satisfactory supervisor-employee relationship after the November 2, 2001, incident and by the testimony of both Mr. Akers and Mr. DiGregorio that they have never felt threatened by or nervous around Mr. Fullington before or since the November 2, 2001, incident. The School Board has, therefore, established by the greater weight of the evidence that Mr. Fullington committed three offenses: He submitted two forms containing an inaccurate statement of his overtime hours on August 18, 2001; he used a School Board vehicle for personal business; and he confronted Mr. Akers in anger. However, none of the three offenses is inconsistent with the standards of public conscience and good morals or impaired Mr. Fullington's service in the community; none of the three offenses involves the constant or continuing intentional refusal to obey a direct order; none of the three offenses constitutes repeated violations of the law or repeated acts of indiscretion that persisted over an extended period of time, and none of the offenses was so serious that it impaired Mr. Fullington's effectiveness as a School Board employee. In light of Mr. Fullington's 19-year employment record with the School Board, which is marred by only one verbal reprimand and one four-month suspension, these three offenses, whether considered separately or cumulatively, are not sufficient to constitute "just and good cause" to suspend and dismiss Mr. Fullington from his employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Dismissing Counts I, II, IV, and V of the Notice of Specific Charges against Benjamin Fullington; Finding that Mr. Fullington engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21(I); Reinstating Mr. Fullington to his position as a Plumber II with the School Board's Maintenance Department, with full back pay and benefits; and Issuing a written reprimand to be placed in Mr. Fullington's personnel file. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2002.
The Issue The issue for determination in this case is whether Respondent should be terminated from, or otherwise disciplined, in regard to his employment with the Sarasota County School Board.
Findings Of Fact Petitioner, the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA (SCHOOL BOARD), is a political subdivision of the State of Florida, and is the agency vested with the authority to operate, maintain, and control the public schools and school personnel in and for Sarasota County, Florida. Respondent, ANTHONY HARTLOVE, at all times material hereto, was employed by the SCHOOL BOARD as a custodian in the Facility Services Department. Respondent was first employed by the SCHOOL BOARD in this capacity in the late 1980's. Respondent is a member of the Sarasota Classified/Teacher Association which has entered into a collective bargaining agreement with the SCHOOL BOARD. As a SCHOOL BOARD employee, Respondent received a specified number of days for sick leave each year which under SCHOOL BOARD policy Respondent was entitled to use for personal or family illness. In Respondent's employment circumstances, he received one sick leave day per month. During the course of his employment with the SCHOOL BOARD, Respondent continually exhausted his accrued sick leave benefits. The parties have stipulated that Respondent was notified on numerous occasions, both verbally and in writing, of the SCHOOL BOARD's policy requiring an employee who has been absent to submit documentation from a physician excusing the absence if the employee had no sick leave remaining. The parties have further stipulated that Respondent submitted falsified physician's notes to his supervisors in an attempt to excuse several absences he took in excess of his earned leave time. Respondent's history of repeated absenteeism culminated on June 23, 1992, with a recommendation from Michael Will, Director of Facilities Services, to Robert Meyer, Assistant Supervisor, that Respondent's employment with the SCHOOL BOARD be terminated. This recommendation was based upon Respondent's disregard for SCHOOL BOARD policies, and noted that "Mr. Hartlove has been in an unauthorized leave status on numerous occasions and has not provided any justifiable reason for his absence." Prior to this recommendation, Respondent had on one occasion been given a five-day suspension in 1989 for reasons unrelated to absenteeism, and not the subject of these proceedings. On July 6, 1992, the Superintendent of Schools recommended to the SCHOOL BOARD that Respondent's employment be terminated. After discussions with Respondent and his wife's physician, the Superintendent withdrew the recommendation for Respondent's termination of employment, and on September 1, 1992, Respondent was given a written record of counseling and notified that he would be subject to disciplinary action if he failed to follow SCHOOL BOARD policy regarding sick leave. Despite the written notification of September 1, 1992, Respondent failed to adhere to SCHOOL BOARD sick leave policy during the next several years. Respondent received written counseling reports regarding sick leave policy on July 20, 1993, July 11, 1994, November 21, 1996, February 10, 1997, and February 27, 1997. In addition to the written counseling reports, on September 29, 1993, Respondent received a written confirmation of an oral reprimand for abuse of school equipment, failure to be in proper attire on duty, and lack of punctuality. On January 26, 1994, Respondent again received a written confirmation of oral reprimand for deficiencies in job performance due to excessive absenteeism. Respondent received another written reprimand on August 9, 1995, for failure to provide written documentation for absenteeism in a timely fashion. In May of 1996, Michael Will learned that Respondent had falsified several medical excuses as indicated above. Respondent acknowledged the submission of false medical excuses to his supervisors. By letter dated June 12, 1996, the Superintendent recommended to the SCHOOL BOARD that Respondent's employment be terminated. Thereafter, the Sarasota Classified/Teachers Association filed a grievance regarding Respondent's recommended termination of employment. The SCHOOL BOARD then withheld action in the recommendation pending completion of the grievance procedures. After the conclusion of the grievance procedures, the Superintendent again recommended to the SCHOOL BOARD the termination of Respondent's employment by letter dated January 27, 1997. While this recommendation was pending, Respondent continued to miss work without documentation, and another recommendation for termination was issued by the Superintendent on March 24, 1997. Respondent was terminated from employment with the SCHOOL BOARD on April 15, 1997. Respondent's history of absenteeism is primarily due to the chronic illness of his wife who suffers from the deleterious effects of lupus, a chronic and debilitating disease. In addition to suffering from lupus, Respondent's wife also suffers from clinical depression and has on at least two past occasions required extended hospitalization for treatment of mental distress. Respondent and his wife have two small children. When Respondent's wife is ill, he is responsible for their care, although he has assistance from family and friends. His wife's illnesses and the costs of child care have placed substantial financial hardship on the Respondent's family. In addition to his wife's health problems, Respondent also suffers from chronic bronchitis and ulcers and has been absent from work due to his own health problems. There is no indication that Respondent has missed work for reasons other than his or his wife's health problems. Respondent generally performs his duties as a custodial employee with SCHOOL BOARD in a competent manner; however, Respondent's repeated absenteeism taxes the personnel resources of the Facilities Services Department. Subsequent to the termination of his employment, Respondent and his wife have made specific arrangements for her care and the care of their children when Mrs. Hartlove is ill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA enter a final order suspending Respondent, ANTHONY HARTLOVE, from employment for a period not in excess of six months commencing on April 15, 1997. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore 1777 Main Street, 5th Floor Post Office Box 49377 Sarasota, Florida 34230 Charles L. Scalise, Esquire Law Offices of W. Russell Synder, P.A. 355 West Venice Avenue Venice, Florida 34285 Dr. Thomas H. Gaul Sarasota County Public School 1960 Landings Boulevard Sarasota, Florida 34231
The Issue Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Certification Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997. Respondent's Employment with the School District At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School. The ESOL program is designed to meet the special needs of students whose native language is not English. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the Megha P. suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years. Megha was a ninth grader during the 1995-96 school year. Respondent was Megha's biology teacher during the first semester of that school year. On the day of her final examination in Respondent's class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap. While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did. Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.) When Megha entered the classroom, Respondent commented to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations. Suchi H. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable. Lovely R. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key. When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the face, but was unsuccessful as Lovely turned her head away from him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent. Alexis G. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it. Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage. Chrisly A. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave. Effectiveness By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community. Aftermath Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney. During the meeting, Respondent declined the opportunity to make a statement. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows: Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students. Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal. Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings. Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.
Findings Of Fact Petitioner is an attorney licensed to practice in the State of Florida since 1962. Since Petitioner's admission to the Bar, he has continuously practiced law in Live Oak, Florida. Petitioner is a senior partner in the law firm of Airth, Sellers, Lewis, and Decker, practicing at 105 North Ohio Avenue, Live Oak, Florida. Since September 1, 1975, Petitioner has served as the City Attorney for the City. The position of City Attorney is established by charter and the duties of City Attorney are provided in the charter. Like other appointed (Non- elective) City Officers, the Petitioner has a definite term of office and can be removed only for cause. Petitioner's compensation is fixed by City ordinance and currently is $600.00 per month which is a budgeted position and paid from City's regular salaries and wage account. Petitioner also receives additional sums for special services (litigation) he handles for the City. Retirement contributions are made by City based on the $600.00 per month compensation. Petitioner has not claimed any retirement credit for the special services he performs for the City. Deductions are made for federal income taxes and social security from Petitioner's regular compensation but not from compensation paid for special services. Petitioner's "regular legal work" for which he receives a regular monthly compensation consists of: Attendance at City Council (Council) meetings; advice on matters that arise at those meetings; legal opinions on questions presented by the Council or Mayor; independent investigation of, and advice to Council on, situations that may have legal implications for the City; and all other legal work which the Council might request him to do, other than litigation. Petitioner's second type of legal representation is litigation. Petitioner's litigation assignments are given to him by the Mayor or the Council. Petitioner handles all litigation assignments, unless on Petitioner's advice, the Council determines it is appropriate that they obtain different counsel or co-counsel, either with more expertise in a particular area of law, or with offices closest to where the litigation, or part of it, is taking place. Petitioner does not accrue sick or annual leave, but is paid his regular compensation when ill or on vacation because his responsibilities continue. When Petitioner is unable to attend council meetings the Council is not represented at that meeting by another member of the firm, it being the sole responsibility of Petitioner to represent the Council at Council meetings. The Council does not control the day to day methods in which Petitioner considers cases and performs legal judgments, nor does the Council prescribe the manner in which work should be executed in those cases. Other than scheduled Council meetings, Petitioner is not required to maintain regular office hours established by the Council. Petitioner has no budgeted office at the City's offices. The City's staff and typewriters are available to Petitioner for typing and other needs, but he has no authority over any City staff. Petitioner generally uses his private law office staff and word processor for City work. Petitioner's law office is not a budgeted City office. Petitioner uses an office at the City's offices that is also used by Council members and receives some of his mail at the City's offices. As for fringe benefits, Petitioner receives life and health insurance benefits received by other City employees. In addition, Petitioner has complied with the City's request that he participate in several associations and conventions dealing with problems faced by the City. The Council reimburses his travel expenses and pays the membership dues for him. While these arrangements could perhaps be viewed as fringe benefits, Petitioner's participation seems to be a condition of continued employment. Notices of tort claims against the City may be given to Petitioner. Until repealed by law in 1978, Petitioner's duties included the collection of delinquent taxes due the City as a Deputy Tax Collector. Petitioner, upon request of the Bureau of Fire Prevention, shall assist the inspectors in the investigation of any fire which, in the opinion of the fire inspectors, is of suspicious origin. All officers (and employees) of the City are compulsorily required to be enrolled in FRS. However, consultants and professional persons on contract as independent contractors are ineligible for membership in FRS. Since October 1, 1971, the City has participated in FRS. The position of Sanitary Inspector has been abolished within the City. Although the position of City Attorney is vested with corporate authority of the City along with other officers pursuant to Section 1, Chapter 57-1538, Laws of Florida, the record does not reflect that Petitioner exercises any powers of the sovereignty of the City. The Council and Mayor constitute the governing body of the City. Petitioner's initial enrollment in FRS on September 1, 1975 was accomplished by Petitioner's completion and filing of Respondent's FRS form with City. The City in turn forwarded the form to Respondent and began reporting Petitioner on its payrolls. There is no evidence that the initial FRS entry form, filed with Respondent, described Petitioner's work duties or the nature of his employment with the City. Both the City and Respondent enrolled Petitioner in the FRS, believing that Petitioner was eligible for membership. The Respondent did not question or investigate the nature of Petitioner's employment relationship with the City until 1983. As part of Respondent's review process (which was designed to review the actual employment of professional persons), it learned some of the details of Petitioner's engagement with the City on November 30, 1983, when Petitioner (in a response to Respondent's questionnaire by the City) was identified as a professional person under contract. Following a more detailed description of Petitioner's position from the City and Petitioner, the Respondent notified Petitioner on November 1, 1984, that he was ineligible for participation in the FRS. Subsequent to the decision in Potter v. State Department of Administration, 459 So. 2d 1170 (Fla. 2d DCA 1984), the Respondent has informed Petitioner that the effective date of his removal from FRS will be December 1, 1984. Although Respondent stipulated that because of Potter it would not terminate Petitioner until December 1, 1984, there was no stipulation that Petitioner was eligible during any period of time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order declaring Petitioner, Ernest A. Sellers ineligible for membership in the Florida Retirement System effective December 1, 1984. Respectfully submitted and entered this 22nd day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 22nd day of August, 1985.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
Findings Of Fact Petitioner is a duly constituted School Board responsible for the control and supervision of all free public schools within the school district of Dade County, Florida. Petitioner is a public employer and a political subdivision of the State of Florida. Respondent was employed by the Petitioner in a permanent full-time position as an Electrician II, which is a journeyman electrician position, from December 6, 1983, when he was hired under the name of Guarino Delgado Guanche, III, until the School Board voted to terminate his employment on March 22, 1995. Respondent was an "educational support employee" as that term is defined by Section 231.3605(1), Florida Statutes. 1/ Respondent is a member of the Dade County School Maintenance Employee Committee (DCSMEC) bargaining unit. Although he is not a member of that union, the terms and conditions of his employment are set forth in the collective bargaining agreement between the DCSMEC and the Petitioner and by pertinent rules and policies adopted by the School Board. The collective bargaining agreement does not have a negotiated discipline code with an itemized list of disciplinary offenses or range of penalties and it does not require that Petitioner administer progressive discipline as to employees covered by the agreement. Article IV of that agreement reserves unto the School Board the right to discipline, suspend, or terminate the employment of any employee for "just and good cause." The Petitioner has not promulgated disciplinary rules or standards for educational support employees. There are no published rules, policies, procedures, or guidelines which put educational support employees on notice of the standard of conduct expected of them or the range of penalties that they may suffer for infractions. Decisions concerning the level of discipline to be imposed against educational support employees are made by administrators on a case-by-case basis. Rule 6Gx13-4A-1.21 adopted by Petitioner pertains to conduct of all permanent employees, and provides in pertinent part as follows: Employee Conduct All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon them- selves and the school system. The Petitioner has no published rules, policies, procedures, criteria, or guidelines concerning allegations of misconduct by educational support employees and how those allegations are investigated. There was insufficient evidence to establish that any investigation pertinent to this proceeding was inappropriate or deprived Respondent of due process. From September 1993 until the School Board's action of March 22, 1995, Respondent was also employed by Petitioner as a part-time instructor at William Turner Technical School (Turner Tech), a public school in Dade County. The School Board's action of March 22, 1995, included the termination of Respondent's employment at Turner Tech. There was no evidence that Respondent had entered into a written contract with Petitioner pertaining to his employment at Turner Tech, and there was no evidence concerning the terms and conditions of this employment. One does not have to already be a School Board employee to obtain part- time employment as an instructor at Turner Tech. A full-time employee of the School Board can seek and hold part-time employment at Turner Tech, and one type of employment is not dependent on the other. Prior to his employment at Turner Tech, Respondent underwent a review by the Petitioner's Office of Professional Standards and received authorization by that office to be hired. There was sufficient enrollment in Respondent's class to sustain the class being taught. Consequently, Respondent had a reasonable expectation of retaining his part-time employment at Turner Tech. The School Board required good cause to terminate that employment. It is the Petitioner's practice to dismiss an employee from all positions of employment with Petitioner if there exists just cause to dismiss the employee from his primary position of employment. That policy has not been adopted by a rule, but is rational. The recommendation of the Superintendent of Schools to the School Board was based on events that occurred July 6, 1994. The School Board based its action of March 22, 1995, on the Superintendent's recommendation. This recommendation included the suspension of Respondent's total employment without pay pending termination proceedings on the grounds of conduct unbecoming a School Board employee or insubordination. 2/ By its "Notice of Specific Charges" filed in this de novo proceeding, Petitioner notified Respondent that it was asserting additional incidents of alleged misconduct in support of its action. This notice timely advised Respondent as to these additional charges of misconduct. Conferences for the record (CFRs) are used by the Board as a fact- finding forum that often lead to discipline, but CFRs are not a form of discipline. While Respondent was the subject of several CFRs during his employment with the School Board, his only prior discipline consisted of a reprimand in 1984 for attendance problems and a reprimand in 1993 for violation of break time rules. Disciplinary measures that can be imposed against an employee without action of the School Board are oral counseling, written reprimands, and involuntary transfers. Suspensions or dismissals require School Board action. THE INCIDENT OF JULY 6, 1994 At the times pertinent to the incident of July 6, 1994, Respondent was working on an electrical installation project at Treasure Island Elementary School. His foreperson was Jeff Price. Respondent and Mr. Price were close personal friends. Respondent's assignment, pertinent to this proceeding, was to install three electrical conduits (referred to as raceways) pursuant to a sketch that had been provided by an electrical engineer in the Mechanical Section. Respondent encountered difficulties with a concrete beam, which impeded the installation of the three raceways as designed by the electrical engineer. Respondent determined that the installation of two raceways would suffice and would meet code. Respondent showed Mr. Price calculations purporting to justify the installation of only two raceways. Respondent thereafter installed only two raceways. Reducing the number of raceways constituted a major change in the planned work. Respondent thought that Mr. Price knew that he was only installing two raceways and he thought that Mr. Price had approved that change. Although a foreperson has the authority to authorize major field changes, the evidence failed to establish that Mr. Price authorized the changes or that he knew that Respondent was only installing two raceways. Although the installation of the two raceways by Respondent passed inspection, it was subsequently necessary for Petitioner to correct Respondent's work. 3/ Ray Singler, a Coordinator I in Petitioner's Mechanical Section, was responsible for overseeing the electrical project at Treasure Island Elementary School. In a subsequent inspection, Mr. Singler discovered that only two raceways had been installed. He discussed this modification with Mr. Price, who told Mr. Singler that he was unaware of the change. Mr. Singler suspected that Respondent had intentionally failed to follow the original plans and had been insubordinate. To learn why Respondent had made this change, Mr. Singler scheduled a conference for the record (CFR) with Respondent for the last hour of Respondent's workday on July 5, 1994. This CFR could have resulted in Respondent being disciplined since Respondent had no authority to reduce the number of raceways. Mr. Price attended the CFR and responded to questions asked by Mr. Singler in a yes or no fashion. Mr. Price did not volunteer any information, and indicated that he did not know why Respondent had installed only two raceways. Mr. Price did not tell Mr. Singler that he and Respondent had had conversations about the modification. Respondent testified that because of their friendship, he was "shocked" to see Mr. Price at the CFR since Mr. Price had not told him that he would be at the CFR. Respondent also testified that he was upset and confused by what he considered Mr. Price's failure to be totally forthcoming. On July 6, 1994, Mr. Price's work crew was assigned to Meadowland Elementary School. They were using a classroom as an office, storage area, and breakroom. On that morning, Mr. Price gave his crew their assignments and then walked around to observe their various jobs. Respondent was not at his assigned work site. When Mr. Price returned to the classroom they were using, Respondent was in the room waiting for him. Respondent was seated at a table holding a mug of coffee he had brought from his home. Following a brief conversation as to the CFR that occurred the day before, Mr. Price told Respondent to return to work. Respondent then threw the mug of cold coffee on Mr. Price, hitting his face and shirt. 4/ There is no evidence that anyone, including other employees, saw or overheard the incident. Following a brief, nonviolent conversation, Mr. Price left the room and asked his supervisor, Kenneth MacFarlane, for permission to go home to change his clothes. Mr. MacFarlane authorized Mr. Price to go home and recommended to him that he call the school police. Mr. Price testified that he waited two days to call the school police because he expected Respondent to apologize for the incident. After Respondent failed to apologize, Mr. Price called the school police, who treated the incident as a "battery". Mr. Price signed a form by which he agreed not to bring criminal charges against Respondent. Thereafter, Respondent was transferred to another work crew where he worked until his employment was suspended by the School Board pending termination proceedings. THE INCIDENT OF JUNE 8, 1992 Health Examinetics is an outside firm that Petitioner hired pursuant to its health care cafeteria plan for employees to receive health examinations on school sites. On June 8, 1992, Kevin McCarthy, an administrator, visited a Health Examinetics' trailer that had been set up on school grounds. This visit had been approved by Mr. McCarthy's supervisor. On June 8, 1992, Respondent submitted to Max Metzger, an administrator above Mr. McCarthy, a hand written complaint that Mr. McCarthy was using work time for his health examination. This memo reflected that Respondent, during hours that he should have been working, kept Mr. McCarthy's activities under surveillance. Respondent reported that he saw Mr. McCarthy enter the health examination area and that Mr. McCarthy did not exit that area until over an hour later. Respondent obtained a copy of the sign-in sheet that reflected Mr. McCarthy's signature. Respondent's observation of Mr. McCarthy and his copying of the sign-in sheet were unauthorized acts and constituted a misuse of Respondent's work time. This incident was included in the Notice of Specific Charges, but information as to this incident was not provided the School Board for its meeting of March 22, 1995. THE INCIDENT OF DECEMBER 21, 1994 While the Office of Facilities Operation was reviewing Respondent's status, an incident occurred that Petitioner asserts supports its decision to terminate Respondent's employment. This incident was also included in the Notice of Specific Charges. Information as to this incident was not provided the School Board for its meeting of March 22, 1995. On December 20, 1994, Respondent was advised that his classroom at Turner Tech was going to be used the next day by Scott Ellinport, an alarm trade supervisor employed by the Petitioner. Mr. Ellinport's office had developed a test designed to determine whether a candidate for employment as an alarm worker has the requisite skills to perform the work. Electricians frequently apply for employment as alarm workers. Mr. Ellinport had hired several alarm contractors to take a practice test to ensure the integrity of the test. The practice test was to be administered on December 21, 1994, in the classroom Respondent used to teach his night class at Turner Tech. This classroom had two doors on the exterior wall. One door was a conventional door and the other was a large, roll-up door. On December 21, 1994, Respondent was assigned to work at Miami Edison Senior High School under the supervision of Tracy Scott, a lead electrician and acting foreperson. On his way to work, Respondent's vehicle broke down during a rain storm. Because of his proximity to Turner Tech, Respondent had his vehicle towed to that location. At Turner Tech, Respondent talked to Patrick O'Brien, an instructor who was the supervisor for his part-time employment. Mr. O'Brien gave Respondent a cup of coffee and let him use his telephone. Respondent also talked to a janitor who worked at Turner Tech. Respondent was not authorized by Mr. O'Brien or by any other person in a position of authority to enter the classroom while Mr. Ellinport was using the room. Respondent entered the classroom at a time he knew the room was being used by Mr. Ellinport for this practice test. When he entered the classroom at approximately 8:50 a.m., Mr. Ellinport was briefing the people who were to take the alarm worker test and the wiring and other materials that were to be used during the test were displayed on a table. Respondent entered the classroom and walked all the way across the classroom to the exterior wall. He opened the conventional door and began to open the roll-up door when Mr. Ellinport stopped him. Respondent stopped what he was doing and immediately left the classroom when asked to do so by Mr. Ellinport. 5/ Respondent was in the classroom approximately four minutes. Respondent disrupted the administration of the test by Mr. Ellinport. Mr. Ellinport testified, credibly, that Respondent's presence in the classroom also compromised the integrity of the alarm worker examination because Respondent was able to observe the wiring scheme that was being tested. This information would benefit a person in his preparation for the examination. Respondent's workday for December 21, 1994, was scheduled to begin at 7:00 a.m. After his vehicle broke down, Respondent beeped Tracy Scott, the lead electrician with whom he was working that day to advise that he would arrive at work as soon as he could. Respondent thereafter arrived at his work site and worked part of the day. Respondent did not work a full eight hour shift on December 21, 1994. At the end of the workday on December 21, 1994, Mr. Scott filled out a form entitled "Daily Status Report" that reflected that he and Respondent had worked a full eight hour shift that day. This Daily Status Report does not reflect that Respondent spent part of his work day at Turner Tech due to car problems. Respondent signed this form that reflected this incorrect information. After Respondent returned to work from the Christmas break, he completed and signed a time card that incorrectly reflected that he worked eight hours on December 21, 1994. During the course of his employment, Respondent has filed grievances and memoranda about such subjects as health and safety issues, inequitable treatment, inefficiency, and abusive behavior by supervisors. Some of these grievances had been taken to outside agencies such as the Equal Employment Opportunity Commission and the Public Employee Relations Commission. Some of the grievances and memoranda concerned supervisors and administrators such as Max Metzger, Eddie Pryor, Ray Singler, Mike Brush, and Vernon Holloway. Prior to the School Board action of March 22, 1995, the recommendation to terminate Respondent's employment was made by Peter Vadas and ratified by Dr. Patrick Gray. There was insufficient evidence to establish Respondent's contention that either of these two administrators considered Respondent a "troublemaker" (the term used by Respondent) or that the decision to terminate his employment was "retaliatory". The greater weight of the evidence established that both of these administrators based their recommendations solely on what they perceived to be misconduct by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's full-time and part-time employment with the Petitioner. DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996.
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
