The Issue The issue is whether Respondent's policy relative to the applicability of the maximum class-size statute to charter schools is a rule as defined in Section 120.52(16), Florida Statutes, which has not been adopted as required by Section 120.54, Florida Statutes.1/
Findings Of Fact Petitioners own and/or operate eight charter schools in Florida. They have been "substantially affected" by Respondent's maximum class-size policies at every level of implementation. Respondent's regulatory scheme requires charter schools to submit information and to comply with statutory class-size levels. Respondent's determination of non-compliance triggers penalties and adverse consequences for charter schools. Respondent has a comprehensive data management system for public school reporting and accountability. The system includes detailed definitions and reporting requirements on many facets of public education, including information on students, teachers, and public school facilities. This information has been incorporated by reference into Florida Administrative Code Rule 6A-1.0014, as database manuals. For example, the manuals contain a detailed student element using the Florida Inventory of School Houses (FISH) and a Classroom Identification Number, which creates an identifier for every classroom in every building and facility in the school district. Charter schools that do not have a "FISH" number may have one generated. Respondent uses a computational algorithm to calculate class size. The algorithm uses data elements and correlations to create classroom ratios. Many of the data elements are required by statute and/or existing rules for all public schools, including charter schools. For each school that does not meet class-size compliance requirements, a portion of funds attributed to that school will be transferred from operational funding to capital outlay funds. The amount transferred is equal to the full-time equivalent funds for the number of students over the cap. Respondent makes the initial transfer calculation, which is then replicated and approved by the State Board of Education, the Florida Education Finance Allocation Committee, and the Legislative Budget Committee. In November of 2007, Respondent calculated class size on the individual classroom level for all public schools, including charter schools. Respondent utilized data from the October student membership survey, which consists of data collected by the Respondent from public schools. The algorithm used by Respondent to calculate class size, including the data collected in November 2007, was not adopted as a rule until after the commencement of this proceeding. Class-size compliance forms, mandated by Respondent for use by charter schools that are determined by Respondent not to be in compliance with the maximum class-size act, have also not been adopted by any formal rulemaking process. Respondent's policies include an informal process for "appealing" adverse determinations. The informal appeal process has not been adopted as a rule. Respondent has published several Technical Assistance Papers, including TAP Nos: FY2005-04 and FY2006-01, applying the maximum class-size act and a computational class-size algorithm to charter schools. These papers were not adopted through the formal rulemaking process. Respondent withdrew TAP Nos: FY2005-04 and FY2006-01 by memorandum dated May 22, 2008. However, Respondent still maintains its policy that the maximum class-size act applies to Florida charter schools. In 2007, charter schools reported data and received data from Respondent regarding initial class-size figures. Some charter schools appealed the class-size calculations and the resulting transfer of operational funds to the State Board of Education. Cape Coral Charter School submitted information to Respondent, leading to a downward adjustment in the funds to be transferred to capital outlay. However, Cape Coral Charter School lost funds in part because of Respondent's initial determination that Cape Coral Charter School had failed to comply with the maximum class-size act. Respondent also formally determined in February 2008, that Cape Coral Charter School was ineligible to offer a voluntary pre-kindergarten program because of its 2007 determination that Cape Coral Charter School was not in compliance with the class-size strictures. The Florida Education Finance Program Appropriation Allocation Conference verified the transfer of capital outlay categorical funds as recommended by the Commissioner of Education on January 17, 2008. The Commissioner of Education recommended transfers in funds based upon class-size compliance to the State Board of Education, which approved the transfers on February 4, 2008. On February 21, 2008, the Legislative Budget Committee approved the transfer calculations. Florida Administrative Code Rule 6A-1.0014 incorporates by reference the database manual that Respondent uses to collect data from public schools on teachers, students and classroom space. The amendment to the rule, which became effective November 26, 2008, consists of an additional page in the database manual (Appendix AA). Appendix AA sets forth Respondent's class-size algorithm, which has been in use for several years. Appendix AA does not address the applicability of the maximum class-size act to Florida charter schools.
The Issue Whether Respondent, Hillsborough County School Board (School Board), erred in denying the Petitioner's request to consolidate its two charter contracts into one charter agreement.
Findings Of Fact Trinity School is a Florida corporation that owns and operates two charter schools in Hillsborough County, Florida. The two charter schools are known as Trinity Lower School for Children and Trinity Upper School. Trinity Lower School for Children provides education for 425 students in kindergarten through fitth grade. Trinity Upper School serves 225 students in sixth through eighth grades. The School Board is constitutionally and statutorily charged with the operation and supervision of all K through 12 public schools in Hillsborough County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.32(2) and 1003.02. The two Trinity charter schools are part of the public school system and are sponsored by the School Board. § 1002.33. Trinity School was formed by a group of educators and parents of children who had attended a private Roman Catholic School that was closing. In 1999, Trinity School submitted its application to form a K through eighth grade charter school. Its application was approved by the School Board, and Trinity began operation in 1999. Trinity School's population grew steadily from its inception and in 2003, Trinity School sought to purchase a building across the street from its campus. Ms. O'Dea, the founder, principal, chief executive, and educational officer for Trinity School, explained that Trinity School learned that it would be eligible for additional federal start-up money, if Trinity School divided its charter into two separate charters. By dividing the original charter and creating a new charter school for the middle school, Trinity School was able to obtain at least $450,000.00, in federal start-up funds which was used to help purchase a building across the street from the original school, grow the number of classes, as well as increase the number of programs and teachers. In 2003, Trinity School applied for a charter for the Trinity Upper School, which would serve sixth through eighth grades. The School Board approved the charter for the Upper School, and Trinity School was able to receive the federal start-up money. The Trinity Upper School began operating under its own charter in 2004. Although two separate charters, both Trinity Schools are operated by the same parent corporation, follow the same Bank Street School principles of educational development, and are located in the same location. Further, the record showed through the testimony of Ms. Difranco, Trinity School's director of finance, that the two charter schools "actually function as one school[,] [w]e share buildings; we share a media center; we share staff; we use one accounting system." On April 3, 2008, Trinity School wrote the School Board's representative to request a change in Trinity School's financial reporting to the school district. Trinity School's letter recognized that both schools operated "under the fiscal umbrella of The Tampa School Development Cooperation [sic], but the schools' finances are reported to the district separately." Trinity School advised the School Board representative that combining the schools' financial reports would benefit "both our accounting practices and the school district." On May 15, 2008, Ms. Hodgens, the School Board's supervisor of charter schools, wrote Ms. O'Dea: After consulting with the Department of Education regarding your request to combine Trinity School for Children and Trinity Upper School, the district has been advised that you are able to combine the two schools. I will present your request to the Hillsborough County School Board regarding the combination of the two schools during your schools' contract renewal process. On March 15, 2010, the School Board wrote Ms. O'Dea concerning the renewal of the charters. The School Board informed Ms. O'Dea that "Trinity School for Children/Trinity Upper is scheduled for Contract Renewal Review[,]" and requested that a list of materials be provided for the review. On June 28, 2010, Ms. Hodgens, referencing her earlier letter dated May 15, 2008, wrote Ms. O'Dea concerning Trinity School's request to combine the charters during the contract renewal period. Specifically, Ms. Hodgens wrote: After several conversations with district staff, there is no educational benefit for students by combining the two schools. Due to this fact, the Superintendent will not be making this recommendation to the School Board at the time of your contract renewal. Trinity School and the School Board brought their consolidation dispute before the Department of Education under section 1002.33(6)(h). On March 30, 2011, Dr. Eric Smith, the Florida Commissioner of Education, entered a Mediation Report of Impasse, stating that the parties had reached an impasse and that the matter could not be settled through mediation, pursuant to section 1002.33(6)(h). Ms. Difranco, who has been Trinity Schools' director of finance for the past two years, credibly testified that both schools functioned administratively as one school, but were required to file separate fiscal reports. Furthermore, she credibly testified that creating the two separate fiscal reports for each school, results in Trinity School's accountants and personnel having to perform additional duties of separating the relevant data by school. Ms. Difranco credibly testified that she had conducted a cost analysis comparing the costs of treating the two schools as separate charters with an estimated cost of operating under one charter. According to Ms. Difranco, the savings to Trinity School would be approximately $123,000.00, a year. The largest bulk of the savings would come from a reduction in the administrative fee Trinity School pays to the School Board to administer the charter schools. Ms. Difranco estimated that the administrative fee paid to the School Board would reduce by approximately $65,000.00, a year. The reason for the reduction in administrative fees received by the School Board is the legislature's enactment of section 1002.33(20)(a), Florida Statutes (2011). Section 1002.33(20)(a), in part, changed the formula used to calculate the administrative fee charged to charter schools by district school boards. This change in the formula for funding results in a reduction of the amount of money that the School Board will receive as administrative fees from Trinity School if the two charters are combined into one charter. The School Board, in making its decision about whether or not to grant the request to combine the two charters into one charter, considered the fact that it would receive less money from the administrative fees, if the two charters were combined. Both Trinity Schools have received from the State of Florida "A" ratings and are respected charter schools. Trinity Schools, however, have not been designated as "high-performing" charter schools by the Commissioner of Education, as defined by section 1002.331, Florida Statutes (2011). The reason that Trinity Schools’ two charters do not meet the statutory definition of "high-performing" charter school under section 1002.331 is due to past negative fund balances. The record, however, showed that Trinity Schools are on the verge of eliminating the financial difficulties. Specifically, the testimony showed that in 2009-2010 school year, Trinity Schools had a negative fund balance. However, the testimony showed through Ms. Difranco that for school years 2010-2011, and the current school year 2011-2012, that Trinity Schools have met the fiscal requirements.
The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
The Issue Whether Respondent's performance as Principal at Lake Vista Elementary School was less than satisfactory so as to warrant his transfer to Kathleen Junior High School as Assistant Principal.
Findings Of Fact At all times relevant hereto, Ferris A. French (French or Respondent), was employed by the Polk County School Board as a Principal under a multi-year contract. He has been certified as a Principal. Multi-year contracts for administrative personnel first came into being in 1985. At that time, French was employed as Principal of Lake Alfred Elementary School through the school year 1984-85. For the school year 1985-86, Respondent was transferred to Principal of Lena Vista Elementary School, and he was given a multi-year (three years) contract for the school years 1985-86, 1986-87 and 1987-88. (Exhibit 2) During his last year at Lake Alfred Elementary, one of the teachers at the school complained to the Superintendent that Respondent had made unwanted sexual advances. Respondent was directed to report to the Superintendent's office to face the complaining teacher. Respondent adamantly denied the accusations, and requested an investigation by the Professional Practices Council. No further action was taken in this matter. Shortly thereafter, an opening appeared for Principal at Lena Vista Elementary School, and Respondent requested a transfer to Lena Vista because it was a larger school. In accordance with this request, Respondent was transferred to Lena Vista. Upon completion of the three-year, multi-year contract for the school year 1987-88, Respondent was recommended for a three year renewal of his multi- year contract to commence the school year 1988-89 (Exhibit 3). Due to administrative oversight this contract was not issued until October 31, 1989 (Exhibit 15). During the 1986-87 school year, Susan Kelly was hired as a part-time teacher's aide and part-time secretary at Lena Vista by Respondent. During the school year 1987-88, Lena Vista was authorized another full time secretary, and Susan Kelly was employed in this position. It became apparent that Respondent and Kelly were often gone from the school about the same time during the lunch period, and rumors of a romantic liaison between French and Kelly became rife. The superintendent's office received one or more anonymous telephone call alleging improper conduct on the part of Respondent and Kelly. Around the same time Respondent was having marital difficulties and separated from his wife. He then filed for divorce. Kelly also dissolved her marriage through divorce. At the direction of the superintendent, William Boykin, Deputy Superintendent, met with the Respondent to discuss the allegations of impropriety made in the anonymous calls, and Respondent denied the truth of the allegations. On another occasion, Bill Moore, an Area Superintendent in charge of the area which included Lena Vista, discussed the rumors with Respondent, who again denied any improprieties. Following their respective divorces, French and Kelly started dating. Because of the rumors, Kelly began looking for another job, and during the school year 1988-89 she left her position at Lena Vista and became employed in the private sector. This occurred shortly after Moore had discussed the problem with Respondent. Following Kelly's departure from Lena Vista, the rumors abated. Respondent and Kelly were subsequently married. None of the six witnesses testifying in these proceedings, who were at Lena Vista school while the rumors regarding Respondent and Kelly were rife, were ever questioned by personnel from the superintendent's office until shortly before this hearing. This would indicate little credence was given to the anonymous calls. During the school years 1986-87, 1987-88 and 1988-89, French received no evaluation less than meeting performance expectations, and on several sections in the evaluation he was rated as meeting above performance expectations. In June 1989, nearly a year after Kelly became employed elsewhere, Respondent was advised by Moore that he was being involuntarily transferred to another school with no change in his pay status during his multi-year contract. Respondent's letter dated June 8, 1989 (Exhibit 11) to the Superintendent requested he be advised to which position he was being transferred, where was the school located, what infractions by him warranted disciplinary action and when would he be given a hearing to challenge this decision. This letter was responded to by the School Board Attorney who advised Respondent that his private activities had invaded the workplace "to such an extent that you were perceived to have lost credibility and effectiveness as a leader of your assigned school"; that he was being appointed as Assistant Principal of Administration at Kathleen Junior High School commencing with the opening of the 1989-90 school year; that this was not intended to be a charge of misconduct nor a disciplinary action; and that, since there was no change in his salary, he was not entitled to a due process hearing to challenge this transfer. French subsequently requested a formal hearing which was denied by Petitioner. It was from this Final Order that French appealed to the Second District Court of Appeal, who ordered that French be granted a formal hearing to consider, intra alia, the length of French's Principal contract, his rate of pay for the duration of that contract, whether his demotion to Assistant Principal is merit based as required by School Board rules, and whether the transfer is consistent with the terms of French's multi-year contract as Principal. Donald Cox, Assistant Superintendent for Personnel, testified that Section 6Gx53-3.012 D of the School Board's Policy Manual had consistently been interpreted by the School Board to require for demotional transfers that the employee be subject to a change in job title and a reduction in pay. This section provides: D. Demotional Transfer: The reassignment of an employee to a position on a lower level of supervisory or administrative authority or rank, or from a position of supervisor or administrative rank to a position which has no supervisory or administrative authority. As a result of such demotion, the employee will ordinarily be subject to a change in job title or a reduc- tion in the rate of remuneration (or both). The School Board may demote an employee represented by the Association if the competency or adequacy of the work per- formance of the employee has, after evaluation, been rated as less than satisfactory by the Superintendent or any designee who has been properly certified and authorized to make such evaluations and ratings. The District Performance Management Program shall be used for the proper procedure in dealing with this section. To achieve the interpretation of the above-cited rule testified to by Cox, it is necessary to change the disjunctive "or" to the conjunctive "and" in Section D.1. and delete the parenthetical "or both". Respondent presented evidence, Exhibits 16 and 17, showing the additional cost to him resulting from the transfer from Lena Vista to Kathleen. Respondent also requested he be awarded attorney's fees for costs involving the filings of motions to compel discovery.
Recommendation It is recommended that a Final Order be entered finding no legal basis exists for Ferris French's demotion to Assistant Principal has been proved; and that Ferris French be reinstated as Principal of a Polk County School and issued a new multi-year contract beginning with the 1991-92 school year. ENTERED this 27th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX Treatment Accorded Petitioner's Proposed Findings: Petitioner's proposed findings of fact are generally accepted. 2. Last sentence rejected insofar as giving French specific instructions is concerned. (first) 4(a). Rejected that they were often gone to lunch for 2 hours, 3 times per week. (second) 4. Second sentence rejected as unsupported by credible evidence. (second) 4(e). First sentence rejected. (4). Rejected. 5. Second sentence rejected as supported by no evidence. Ultimate sentence accepted only insofar as anonymous telephone calls were received. Accepted, but no written evaluations as required by School Board policy were prepared. First sentence rejected as incomplete. Balance accepted insofar as not inconsistent with H.O. #21 and 22. Rejected insofar as this implies the duties of principal and assistant principal are similar. 13. Rejected as fact. Accepted as testimony of Cox. French's multi-year contract as principal would not be renewed upon its expiration absent this hearing. Respondent's proposed findings are generally accepted. COPIES FURNISHED: Donald H. Wilson, Esquire Post Office Box 1758 Bartow, FL 33838-1758 John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 C. A. Boswell, Jr., Esquire Polk County School Board Post Office Box 391 Bartow, FL 33830 Dr. John A. Stewart Superintendent Polk County School Board Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2009.
