The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 26th day of February, 2003.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Palm Beach County, including Boca Raton Community High School (BRCHS). Respondent is employed by the School Board as a custodian, but is currently under suspension pending the outcome of these proceedings. As a custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Article 17 of the SEIU Contract provides as follows: Without the consent of the employee and the Union, 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 the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union 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 Union representative. An employee against whom action is to be taken under this Article and his/her Union 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 the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed 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 if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. 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 Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. 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 Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Prior to her suspension pursuant to Article 7, Section 2, of the SEIU Contract in December 2008, Respondent was assigned to BRCHS. Respondent started working as a custodian at BRCHS in or around 2006. At the time, she was a full-time employee, with hours from 2:30 p.m. to 11:00 p.m. Respondent had poor attendance as a full-time employee. In or around December 2007, at Respondent's request, the School Board changed her status to a permanent part-time employee, with a four-hour, instead of an eight-hour, work day, five days a week. She continued to work an evening shift. It was hoped that the change to part-time status would result in improvement in Respondent's attendance. Respondent's attendance, however, did not improve. Consequently, on December 3, 2007, Cheryl Lombard, an assistant principal at BRCHS, sent Respondent the following memorandum concerning "[e]mployment [e]xpectations": In order to improve your job performance the following directives must be adhered to in order for the school operations to run efficiently: You are directed to report to duty at your assigned time 4:00 p.m. Monday through Friday, April 10, 2009. You are directed to work your complete four-hour shift from 4:00-8:00 p.m. Monday through Friday. You are directed to bring a doctor's note for every absence stating the dates you were under the doctor's care and that you have been released to perform all job responsibilities without restrictions. You are directed to notify the lead custodian/night administrator anytime you must leave campus during duty hours. You are directed to complete a TDE for all absences, late arrivals, and early dismissals from work. You are directed to follow your duty schedule. You are directed to clean all assigned areas in accordance with the procedures outlined by the District. You are directed to complete all assignments given in accordance with directions given. You are directed to refrain from using your cell phone except during your fifteen- minute break. In case of emergency, please contact Dr. Lombard. You are to report to the head custodian/designee upon your arrival on duty. You are directed to sign out with the lead custodian every night. You are directed to speak to all staff members and others in a professional manner while on District property or on duty. You are directed to refrain from threatening fellow custodians. Failure to follow any of the above mentioned directives will be considered insubordination and may result in disciplinary action up to and including termination. In December 2007, Respondent was absent without leave and/or pay a total of 9.75 hours. She was also out on medical/sick leave a total of 9.5 hours. On January 25, 2008, Ms. Lombard issued Respondent a verbal reprimand (which was followed-up by a "written notation"). The written notation read as follows: This correspondence is being given to you as a Written Notation of a Verbal Reprimand for Violation of School Board Policy 1.013 as it pertains to insubordination for failure to follow Directives Re: Attendance. Specifically, you have had excessive tardies and absences. Furthermore, you have failed to produce a doctor's note stating that you were under his/her care, as was required per the memo you received on December 3, 2007. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will result in further disciplinary action up to and including a recommendation for termination. In January 2008, Respondent was absent without leave and/or pay a total of 22 hours. On February 6, 2008, Ms. Lombard issued Respondent a written reprimand, which read as follows: This correspondence is being given to you as a Written Reprimand for insubordination Re: Attendance after our January 25, 2008 meeting. Specifically, on January 28 and February 4 you were absent and on January 30 you were 30 minutes late for your four (4) hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. Respondent was out on medical/sick leave for a total of approximately six weeks in February and March 2008. On April 17, 2008, Ms. Lombard issued Respondent another written reprimand. This written reprimand read as follows: This correspondence is being given to you as a Written Reprimand for insubordination regarding attendance after our April 15, 2008, meeting. Specifically, on April 16, you were absent for two and one half hours of your four hour shift. Your conduct violated School Board Policy 1.013. Regardless of the circumstances that may have brought them about, such inappropriate actions and/or inactions on your part do not reflect positively on your position. You are directed to cease such conduct immediately. Furthermore, you are to desist from engaging in the same or similar action in the future. Failure to do so will result in further disciplinary action up to and including termination. In April 2008, Respondent was absent without leave and/or pay a total of 21 hours. In May 2008, Respondent was absent without leave and/or pay a total of 36 hours. Respondent's brother and father passed away in April and May 2008, respectively. In June 2008, Respondent was absent without leave and/or pay a total of 51.5 hours. In July 2008, Respondent was absent without leave and/or pay a total of 21 hours. She was also out on medical/sick leave a total of 15 hours. 24, Up to and including August 6, 2008, Respondent was absent without leave and/or pay a total of 7.5 hours that month. On August 6, 2008, the principal of BRCHS issued Respondent a written directive, which read as follows: On August 6, 2008, you met with Ms. Lombard, Assistant Principal, and HR Manager Bob Pinkos to discuss the seriousness of your chronic absenteeism and tardiness. During that meeting the Written Directive provided you on December 3, 2007 addressing attendance at work and compliance [with] the duty schedule was discussed. Furthermore, the following disciplinary actions have been issued related to insubordination for failure to adhere to the December 3, 2007 directives. January 28, 2007 [sic] Verbal Reprimand with Written Notation issued for failure to follow the December 3, 2007 directive. February 6, 2008, Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. April 17, 2008, a second Written Reprimand issued for insubordination for failure to follow the December 3, 2007 directive. A copy of the December 3, 2007 directive is enclosed for your review. Although you have received several disciplinary actions advising you to comply with the December 3, 2007 [directive] your behavior with respect to attendance at work and compliance [with] your duty schedule continues to fail to meet expectations. Future similar incidents, to include those that may occur beyond the date of this directive and related to failing to follow the December 3, 2007 directive, will be considered insubordination and subject to disciplinary action up to and including termination of employment. Your immediate attention to this matter will be appreciated as it would positively impact the operation at Boca Raton Community High School. The remainder of the month of August 2008, Respondent was absent without leave and/or pay a total of 22.25 hours and out on medical/sick leave a total of 3.5 hours. In September 2008, Respondent was absent without leave and/or pay a total of 33.25 hours. She was also out on medical/sick leave a total of 4 hours. In October 2008, Respondent was absent without leave and/or pay a total of 23.25 hours. She was also out on medical/sick leave a total of 5 hours. At the end of October 2008, following the completion of an "administrative personnel investigation of Respondent's "behavior with respect to attendance at work and compliance [with her] duty schedule," a "pre-disciplinary meeting" was held at which Respondent was given the opportunity to "explain or rebut the outcome of the investigation." At the meeting, Respondent acknowledged that she had "missed lots of time from work," but she claimed that she had "been trying to improve her attendance." In November 2008, Respondent was absent without leave and/or pay a total of 24.25 hours. Respondent was out on medical/sick leave for her entire four hour shift on December 1, 2008. On December 2, 2008, she was absent without leave and/or pay .25 hours. The following day, she was suspended. Respondent's poor attendance has adversely affected others at BRCHS. Sometimes, the work Respondent was responsible for was done, in her absence, by the other custodians at the school, which "created a bit of unrest" because these custodians also had their own work to do. On other occasions, when Respondent was absent, the work she was assigned went undone, which created a "problem for teachers [and their students] when they c[a]me in the next morning" and had to deal with classrooms that were not cleaned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 13th day of April, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2009. COPIES FURNISHED: Sonia E. Hill-Howard, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Karen Gadson 1711 Wedgewood Plaza Drive Riviera Beach, Florida 33404 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether just cause exists for termination of the Petitioner’s employment at the Manatee County School Board.
Findings Of Fact At all times material to this case, Mark Taylor was employed pursuant to a collective bargaining agreement by the Manatee County School Board. Mr. Taylor worked as a mechanic for the School Board’s transportation department at a maintenance facility. On January 17, 1997, Mr. Taylor obtained a cartoon depicting a boy engaging in sexual intercourse with a sheep, while the shepherd, a tearful girl, watches. The cartoon indicates that the boy is speaking to the girl. A caption reads "stop crying you’re next." Mr. Taylor labeled the characters in the cartoon. The shepherd is identified as "Kim", the boy is identified as "Steve," and the sheep is identified as "Shawn." Early one morning, before most other employees had arrived at the workplace, Mr. Taylor placed the labeled cartoon on the toolbox of Sean Monroe, another School Board mechanic. Unbeknownst to Mr. Taylor, he was apparently observed placing the cartoon on the toolbox. According to Mr. Taylor, Mr. Monroe’s wife was named "Kim." The "Steve" in the cartoon apparently refers to Steve Hensel, another School Board employee. The cartoon very loosely refers to a conversation that allegedly occurred between Mr. Hensel and Mr. Monroe. Mr. Hensel testified at the hearing. Neither Sean nor Kim Monroe testified at the hearing. Another employee of the transportation maintenance facility, a female named "Kim" (hereinafter Kim no. 2) apparently saw the cartoon and became distressed. Kim no. 2 did not testify at the hearing. An investigation was initiated into the incident. Eddie Ponder, Mr. Taylor’s supervisor, questioned him about the incident. Mr. Taylor initially denied any involvement, but subsequently admitted his responsibility for the labeling and placement of the cartoon. A written reprimand, dated February 12, 1997, and signed by Mr. Ponder and Mr. Taylor, details Mr. Taylor’s involvement in the incident. The letter states "[s]hould this happen again, disciplinary action will be taken that could range from suspension to dismissal." As a result of the cartoon incident, employees at the maintenance facility, including Mr. Taylor, attended a sexual harassment sensitivity training session on April 1, 1997. The training session consisted of discussion and watching a videotape called "The Issue is Respect." Mr. Taylor signed a written acknowledgment of his attendance. The written acknowledgment states "that I understand that (1) I have the right to work in an environment free from sexual harassment, and (2) I have a responsibility not to engage in behaviors that constitute sexual harassment; and (3) if I feel I am being harassed, I have the right and responsibility to communicate this directly to the harasser or to a non-involved supervisor." Mr. Hensel, who also attended the training session, testified that as the session ended and the employees left the room, Mr. Taylor made derogatory remarks about the training session and opined that "they couldn't do anything to us anyhow." Mr. Taylor testified that he made no such remarks. Mr. Hensel's recollection is credited. Mr. Taylor also testified that the training videotape did not address issues related to workplace sexual discussions with co-workers. Mr. Taylor testified that the videotape did not address issues created by a co-worker's reaction to an ill- considered sexual remark. Review of the videotape establishes that the training course addressed many forms of behavior which can be identified as workplace "sexual harassment," including posting offensive photos and drawings, engaging in workplace discussions of personal sexual activities, and questioning the sexual proclivities of other employees. In June 1998, Mr. Taylor was with approximately six other employees including Mr. Hensel in the maintenance facility lunchroom. "Sean" allegedly remarked that he had seen Mr. Hensel and Kim no. 2 exiting the office area together earlier in the day. According to Mr. Hensel’s testimony, Mr. Taylor then remarked "Well, now she’s doing all three, me, Mike Eaton and her husband," and followed up by saying "not so sure her husband." Mr. Hensel testified that Mr. Taylor may have said "fucking" rather than "doing," but in any event, the implication was that Kim no. 2 was engaging in sexual intercourse with several people. Kim no. 2 was not present at the time Mr. Taylor suggested that she was engaging in sexual intercourse with multiple partners, but she became aware of the comment and, according to Mr. Hensel, asked him later that day to repeat the remark to her. School Board authorities became aware of the June 1998 incident. Interviews were conducted with persons present in the lunchroom. Based on the incidents set forth herein, Mr. Taylor’s supervisor recommended his dismissal. The Superintendent of Schools concurred with the recommendation, and forwarded it as his own recommendation to the Manatee County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Manatee County enter a final order terminating the employment of Mark Taylor. DONE AND ENTERED this 30th day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 April, 1999. COPIES FURNISHED: Richard G. Groff, Esquire Alan Prather, Esquire Dye, Deitrich, Prather, Petruff & St. Paul, P. L. Post Office Box 9480 Bradenton, Florida 34206-9480 Ben R. Patterson, Esquire Patterson & Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Dr. S. Gene Denisar, Superintendent School Board of Manatee County Post Office Box 9069 Bradenton, Florida 34206-9069
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
The Issue The issue presented is whether or not the Respondent should be dismissed from her employment with the Dade County School Board. Petitioner called Mrs. Rose Ann Collum, Keith William Reilly (a minor), Anthony Rossi (a minor), Mrs. Carol Zappi, Robert Staelen, and Desmond Patrick Gray and had admitted Exhibits 1 and 2. Respondent testified on her own behalf. The Pre-Trial Stipulation was admitted as Hearing Officer's Exhibit 1. No transcript was provided and the parties' failure to file proposed Findings of Fact and Conclusions of Law within the time stipulated therefor is deemed a waiver of that right.
Findings Of Fact At all times pertinent hereto, Respondent was an employee of the School Board of Dade County under a continuing contract of employment as an elementary school teacher at Madie Ives Elementary Community School in Miami, Florida. She has taught there successfully since 1966 or 1967. Beginning on or about September 1, 1983 and continuing through and including May of 1984, Respondent engaged in a course of conduct with the students assigned to her which included paddling, and on multiple occasions during this period she administered this paddling, which is in the nature of corporal punishment, to various students (more than 20) in her class. The type of paddling involved was described variously by the two students who testified live at formal hearing as "did not hurt," "just an attention getter," "not bad," "only a little sting," "only when I was bad," and "I was never injured or hurt." Parents were never contacted in advance of the paddlings which seem to have had a spontaneous quality. These paddlings occurred always in the Respondent's 5th Grade classroom in front of the class at the side of Respondent's desk, and a thin narrow wooden paddle was used. The paddle was applied to the child's buttocks through his/her clothing. Paddlings never occurred in the principal's office or in the presence of any other adult. Respondent made no attempt to hide what was going on, but she admitted that some students would excitedly post "look-outs" at the classroom door, so it appears that there was a belief, at least on the children's part, that the paddlings were contrary to the School Board's or principal's stated policies. These paddlings occurred on an almost daily basis. Some children received a stroke once a week or every other day. It seldom occurred to the same child two days in a row. Keith William Reilly, now 12 years old, described the 1983-84 year's punishment for fighting as 4 strokes and for talking as less. Anthony Rossi, also now 12 years old, testified he was paddled 8 or 9 times in the 1983-84 school year and no one else was paddled more often than he. Most students got no more than two strokes on a single occasion. There is no evidence of physical or emotional harm to these students. The majority of parents contacted by School Board Investigator Robert Staelen indicated that if they had been contacted before the paddling incidents they would have or might have given permission to paddle. The two mothers who testified live corroborated this as to their own children. At least one set of parents, Mr. and Mrs. Zappi, objected to not being noti- fied before their daughter was paddled. They experienced diffi- culty getting the child to return to school after she related to them the paddling incident or incidents. There is no evidence of paddling of any child under psychological or medical treatment. During Conferences for the Record, conducted by Dr. Desmond Patrick Gray, Executive Director, Director of Personnel Control, Division of Management for the School Board of Dade County, after the School Board became aware of the paddling incidents, Respondent acknowledged that she was familiar with School Board Rule 6GX13-5D-1.O7. Normally, Dr. Gray would have recommended that Respondent be given a 10 working days' suspen- sion upon the facts of the paddlings as he understood them, but thereafter, believing that Respondent had been paddling for two school years and had been previously reprimanded for similar incidents, he recommended dismissal. Indeed, on January 29, 1982, Respondent had been formally reprimanded (P-2) by her then-principal, Robert D. Conk, for four apparently unrelated "events," the only pertinent one of which is phrased: "(1) You are frequently out of your room and students were left unsupervised. Upon your return, absences were reprimanded by your students who had misbehaved during your spanking them with a ruler or paddle." Respondent acknowledges that she received this reprimand, but states that it slipped her mind in her discussions with Dr. Gray because it was of a minor nature and the emphasis was not directed against paddling or corporal punishment, because Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling. On or about August 22, 1984, Respondent was suspended from employment with the Dade County School Board upon grounds of incompetency, gross insubordination, and misconduct in office.
Recommendation That the School Board of Dade County enter a final order limiting the suspension of Respondent to a total of 90 working days, applying that period to the time she has already been suspended and reinstating her thereafter with any appropriate back pay and benefits. DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire McCormick Bldg., 3rd Floor 111 S.W. Third St. Miami, Florida 33130 William DuFresne, Esquire One Biscayne Tower, Suite 1782 Two South Biscayne Blvd. Miami, Florida 33131 Phyllis O. Douglas Esquire Dade County School Board 1410 N. E. Second Ave. Miami, Florida 33132 Dr. Leonard Britton, Superintendent Dade County Public Schools 1410 N.E. Second Ave. Miami, Florida 33132 =================================================================
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges (as finally amended)? If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against him? 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 Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent: School Board Employment Respondent has been employed by the School Board since March 23, 1979. He is currently under suspension pending the outcome of these disciplinary proceedings. For the duration of his employment with the School Board until his suspension, Respondent was a custodial worker assigned to the D.A. Dorsey Educational Center (Center). At the time of his suspension, he was a lead custodian at the Center and, in the opinion of the principal of the Center, Stella Johnson, "do[ing] a fine job" performing his custodial duties. As the lead custodian, Respondent occupied a position of trust inasmuch as he had the keys to the Center and ready access to School Board property inside the building. Furthermore, at times, the performance of his custodial duties brought him in direct contact with students. Respondent: Post-Hire "Criminal History" and School Board Reaction to Reports of His Criminal ConductThe 1985 Warning In the summer of 1985, Respondent was the subject of a School Board police investigation. The results of the investigation were set forth in an investigative report prepared by the School Board police. Upon receiving the investigative report, which indicated that Respondent had been arrested after a purse snatching incident and charged with armed robbery, Henry Horstmann, a director in the School Board's Office of Professional Standards, scheduled a conference-for-the-record with Respondent. At the time of the conference, according to the information Horstmann had received, the armed robbery charge against Respondent had not been resolved. Horstmann warned Respondent at this 1985 conference- for-the-record that criminal activity on Respondent's part, whether occurring on or off the job, could lead to Respondent's dismissal. Approximately a year later, Horstmann was advised that the criminal proceeding against Respondent had ended with Respondent pleading guilty to, and being convicted of, the crime of "attempting to solicit." Because Respondent was "a good employee insofar as his performance at the work site," the principal of the Center02 wanted him to remain in his position. Consequently, he was not terminated. The Thefts at the Pembroke Lakes Mall In the fall of 1994, while working a second job that involved helping in the cleaning of the Pembroke Lakes Mall in Pembroke Pines, Florida, Respondent stole merchandise from stores in the mall (after business hours when the stores were closed). On November 28, 1994, Respondent gave a statement to Pembroke Pines police confessing to these crimes.03 Criminal charges were filed against Respondent. On April 25, 1995, based upon guilty pleas that he had entered, Respondent was adjudicated guilty of: one count of burglary in Broward County 02 Stella Johnson was not the principal of the Center at the time. It was not until August of 1991 that she became principal of the school. 03 In response to a question asked by the interrogating officer, Respondent stated that he committed these crimes because he had "[p]roblems . . . marriage, jobs, Circuit Court Case No. 95000607CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000609CF10A; one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 94020151CF10A; and one count of burglary and one count of grand theft in the third degree in Broward County Circuit Court Case No. 95000671CF10A. In each of these cases, he was sentenced to 90 days in the Broward County Jail and one year of probation. The sentences were to run concurrently. In August of 1995, Johnson received a telephone call from Respondent's probation officer, who was seeking verification of Respondent's employment status. It was during this telephone conversation with Respondent's probation officer that Johnson first learned of the thefts that Respondent had committed while working at the Pembroke Lakes Mall. Immediately after the conclusion of the conversation, Johnson telephoned the Office of Professional Standards for guidance and direction.04 In accordance with the advice she was given, Johnson requested the School Board police to conduct an investigation of Respondent's criminal background. Pursuant to Johnson's request, on or about October 25, 1995, School Board police conducted such an investigation and apprised her, in writing, of the preliminary results of the investigation. Johnson passed on the information she had received from the School Board police to the Office of Professional Standards. Thereafter, a conference-for-the-record was scheduled to address Respondent's "future employment status with Dade County Public Schools." The conference-for-the-record was held on February 7, 1996. Dr. James Monroe, the executive director of the Office of Professional Standards, prepared, and bills, drugs, just problems." 04 Johnson advised the Office of Professional Standards during this telephone call that there had been a series of thefts of school property at her school and that, in some instances, it appeared that one or more school employees might be responsible because of the absence of any signs of forced entry. Johnson, however, had insufficient evidence to prove that Respondent was the perpetrator of any of these thefts. subsequently furnished to Respondent, a memorandum (dated February 28, 1996) in which he summarized what had transpired at the conference. The memorandum read as follows: On February 7, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards conducted by this administrator. In attendance were Ms. Stella Johnson, Principal, Dorsey Educational Center, Mr. Nelson Perez, District Director, Ms. Chris Harris, Bargaining Agent Representative, American Federation of State, County, [and] Municipal Employees, and this administrator. The conference was held to address Investigative Report No. A00007 concerning your prior arrest, and your future employment status with Dade County Public Schools. Service History As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian on March 23, 1979 and assigned to D.A. Dorsey Educational Center to the present. Conference Data Reviewed A Review of the record included reference to the following investigative issues: This administrator presented to and reviewed with you a copy of the investigative report in its entirety. In reference to your arrest of November 28, 1994, you reported having been detained by police authorities and that you remain on probation through April 4, 1996.05 You declined to make a comment when asked about your arrest of August 18, 1990 for purchase/possession of cocaine. This administrator noted a similar arrest of May 30, 1986 for possession of marijuana for which you declined to make a comment. In reference to your arrest of June 22, 1985, I noted that you had been arrested (May 30, 1986) while under a three year probation during the period of September 17, 1985 through September 17, 1988. Ms. Harris raised a question as to the need to address prior arrests. Ms. Johnson expressed concern relative to recurring incidents of theft during time periods for which you had been granted permission to enter the facilities during off duty hours. Ms. Johnson reported having previously discussed these incidents with you. Ms. Johnson noted that your second arrest had adversely impacted your overall effectiveness as an employee inasmuch as your assigned duties and responsibilities include making provisions for the maintenance, cleaning and security of School Board equipment and property. 0 5 It appears that, at the time of this 5 Cont. February 7, 1996, conference-for-the-record, the School Board administration knew that Respondent had been adjudicated guilty of, and sentenced for, the crimes (of burglary and grand theft) he had committed at the Pembroke Lakes Mall. This administrator presented to you and reviewed with you memoranda dated March 13, 1984, February 17, 1984, February 9, 1984, December 12, 1983 and November 2, 1983 in their entirety. I specifically reviewed with you the principal's notation of your unacceptable performance relative to your failure to secure gates and doors as required. Ms. Johnson noted that she has discussed similar occurrence with you on a recurring basis. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Associate Superintendent in the Bureau of Professional Standards and Operations, the Assistant Superintendent of the Office of Applied Technology, Adult, Career and Community Education, and the Principal of Dorsey Education[al] Center. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension or dismissal. You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. On or about July 2, 1996, the School Board police supplemented its previous report of the results of its investigation of Respondent's criminal record. On September 25, 1996, another conference-for-the-record was held concerning Respondent's "future employment status with Dade County Public Schools." Dr. Thomasina O'Donnell, who had conducted the September 25, 1996, conference-for-the-record on behalf of the Office of Professional Standards, prepared, and sent to Respondent, a summary of the conference. The summary, which was dated September 30, 1996, read as follows: On September 25, 1996, a conference-for-the-record was held with you [Respondent] in the Office of Professional Standards, In attendance were Ms. Stella Johnson, Principal, Miami Skill Center, Mr. Herman Bain, Board Member, AFSCME, and this administrator. The conference was held to address your noncompliance with School Board policy and rules regarding Conduct Unbecoming a School Board Employee and your future employment status with Dade County Public Schools. Service History As you reported in this conference, you were initially employed by Dade County Public Schools as a Custodian in 1979 and assigned to Dorsey Education Center where you have remained. I began by reviewing the reason for this conference which is to discuss a Records Check that revealed a total of four arrests. The last arrest was in 1994 for burglary and grand theft and it resulted in an adjudication of guilty. You said that during that period of time when you had been arrested, you had personal problems. However, currently that is no longer the case and you have your life under control. Ms. Johnson, your principal, said that your work performance is good and you do a fine job. Your attendance is also good. Your union representative requested a copy of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, Employee Conduct, which was provided. I explained that although your arrests were not directly related to your Dade County Public Schools job, there is a level of expectation regarding employee conduct and your arrests place you in violation of that expectation. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendation will compel formal notification of the recommended action of disciplinary measures to include: a letter of reprimand, suspension, dismissal, or the imposition of community service. You were apprised of your rights to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. Since there were not further questions or comments, the conference was adjourned. At its October 23, 1996, meeting, the School Board suspended Respondent and initiated dismissal proceedings against him "for just cause, including violation of employee conduct rule and conviction of a crime involving moral turpitude." The Collective Bargaining Agreement As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the designation of the organizational structure of the DCPS and lines of administrative authority of DCPS. It is understood and agreed that management possess the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX of the AFSCME Contract addresses the subject of "working conditions." Section 11 of Article IX is entitled "Personal Life." It provides as follows: The private and personal life of an employee, except for such incidents and occurrences which could lead to suspension and dismissal as provided by statute, shall not be within the appropriate concern of the Board.06 0 6 This provision of the AFSCME Contract does not protect employees who engage in criminal conduct inasmuch as the commission of a crime Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: 1. verbal warning; 2. written warning (acknowledged); and, 3. A. Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be is not a "private and personal" matter. Rather, it is "an offense against the public." Shaw v. Fletcher, 188 So. 135, 136 (Fla. 1939). consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions- in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non- reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- The employee is separated by management's decision not to offer another annual contract. However, such non-reappointment shall not be in lieu of discipline or lay-off. Employees whose performance has been deemed marginal by the supervising administrator, who have been counseled during the school year concerning performance, and have failed to perform acceptably shall not be reappointed. Such employees and the Union shall be put on written notice of possible non-reappointment. Counseling and written notice of non- reappointment shall be provided in a timely manner. This action shall not be arbitrary or capricious, but based upon reason for the best interest of the employer. AFSCME bargaining unit members employed by the school district in excess of five years shall not be subject to non-reappointment. Such employees may only be discharged for just cause. Layoff-- . . . The factors most important in determining what type of separation occurred for a given employee are: which party initiated the action; what time of the work year the action occurred; and the employer's expressed intent. Appendix III of the AFSCME Contract addresses the subject of "classification plan and procedures." Section R of Appendix III is entitled "Custodial Services." It provides, in part, as follows: The following guidelines and procedures will be implemented regarding the organization and provision of custodial services. 1. SUPERVISION The site administrator (e.g., principal) shall have overall responsibility and supervisory authority for all custodial activities and resultant facility condition. The principal's responsibility in this area is typically and properly delegated to the site Head custodian (or, in a few very large facilities, to a Plant Foreman). The Head Custodian (or Plant Foreman) shall be responsible for all custodial activities on all shifts. Custodians who lead other custodial workers in a group or team shall be designated as Lead Custodians. Lead Custodians would be limited to one per shift, per site. Where a single custodian is assigned to a shift and is responsible for closing and securing the facility at the end of that shift, that custodian would also be designated as a Lead Custodian. . . . CAREER LADDER The custodial career ladder shall include criteria/guidelines, as outlined below: Job Classification . . . Site Custodian . . . Lead Custodian . . . Head Custodian . . . Plant Foreman . . . Master Custodian . . . TRAINING . . . Site Custodian (1) Works at a school or facility site . . . Lead/Head Custodian or Plant Foreman (1) This is a leadership position at a school or facility site. . . . The School Board's Rules 6Gx13-4A-1.21, 6Gx13-4C-1.02, and 6Gx13- 4C-1.021 As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations,07 including Rules 6Gx13-4A-1.21(I), 6Gx13-4C-1.02, and 6Gx13- 4C1.021,08 which provide as follows: Rule 6Gx13-4A-1.21(I) Permanent Personnel RESPONSIBILITIES AND DUTIES 07 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action. 08 An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract. I. 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 themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. 6Gx13-4C-1.02 Activities NON-INSTRUCTIONAL PERSONNEL The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms its wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. 6Gx13-4C-1.021 FINGERPRINTING OF ALL EMPLOYEES UPON APPLICATION AND EMPLOYMENT Pursuant to Florida Statute 231.02, it is the intent of the School Board to insure that only individuals of good moral character09 be employed by the school system. The Dade County Public Schools work force is mobile and an employee in the course of a career may be assigned to various work locations where students are present. It is thus necessary to perform the appropriate security checks on all newly hired personnel. All applicants for full-time and part- time jobs shall be fingerprinted at the time of application for employment. When the applicant is hired, the district shall file a complete set of fingerprints on the new hire with the Florida Department of Law Enforcement (FDLE). FDLE will process and submit the fingerprints to the Federal Bureau of Investigation (FBI) for federal processing. The cost of fingerprinting and the fingerprint processing shall be borne by the employee. All new employees, full and part-time, shall be on probationary status pending fingerprint processing and determination, based on results of the fingerprint check, of compliance with standards of good moral character. Employees not found to be of good 0 9 Individuals who engage in "immorality," as defined in Rule 6B-4.009(2), Florida Administrative Code, (i.e., conduct "inconsistent with the standards of public conscience and good morals [which is] sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community") are not "individuals of good moral character," within the meaning of School Board Rule 6Gx13-4C-1.021. moral character will have their probationary employment terminated. For purposes of this rule, good moral character means exemplifying the acts and conduct which could cause a reasonable person to have confidence in an individual's honesty, fairness and respect for the rights of others and for the laws of the state and nation. The Dade County Public Schools shall review fingerprint reports and determine if an employee's criminal record contains crimes involving moral turpitude. For purposes of this rule, moral turpitude means "a crime that is evidenced by an act of baseness, vileness, or depravity in the private and social duties, which, according to the accepted standards of the time, a person owes to other people or to society in general, and the doing of the act itself and not its prohibition by statutes, fixes moral turpitude." Rule 6B-4.009(6), FAC. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude will be terminated from employment. Crimes which may demonstrate moral turpitude include but are not limited to: Murder (Section 782.04 F.S.) Manslaughter (Section 782.07 F.S.) Vehicular homicide (Section 782.071 F.S.) Killing an unborn child by injury to the mother (Section 782.09 F.S.) Assault upon a minor (Section 784.011 F.S.) Aggravated assault (Section 784.021 F.S.) Aggravated assault relating to battery upon a minor (Section 784.03 F.S.) Aggravated battery (Section 784.045 F.S.) Kidnapping (Section 787.01 F.S.) False imprisonment (Section 787.02 F.S.) Removing children from the state or concealing children contrary to court order (Section 787.04 F.S.) Sexual battery (Section 794.011 F.S.) Carnal intercourse with an unmarried person under 18 years of age (Section 794.05 F.S.) Prostitution (Chapter 796 F.S.) Arson (Section 806.01 F.S.) Robbery (Section 812.13 F.S.) Incest (Section 826.04 F.S.) Aggravated child abuse (Section 827.03 F.S.) Child abuse (Section 827.04 F.S.) Negligent treatment of children (Section 827.05 F.S.) Sexual performance by a child (Section 827.071 F.S.) Exploitation of an elderly person or disabled adult (Section 825.102 F.S.) Drug abuse if the offense was a felony or if any other person involved in the offense was a minor (Chapter 893 F.S.) If the administration finds it appropriate upon consideration of the particular circumstances of an applicant's/employee's case (timing, persons involved, specific mitigating facts), a determination may be made finding that such crime as applied to the applicant/employee does not involve moral turpitude. A probationary employee terminated because of lack of good moral character including but not necessarily limited to conviction of a crime involving moral turpitude shall have the right to appeal such decision to Labor Relations and Personnel Management. The request for appeal must be filed within 15 days following notification of termination. Personnel who have been fingerprinted and processed in accordance with this rule and who have had a break in service of more than 90 days shall be required to be re- fingerprinted in order to be re-employed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order finding that, for the reasons set forth above, "disciplinary action" against Respondent is warranted and imposing upon Respondent the "disciplinary action" described in paragraph 61 of this Recommended Order. 016 Failure to do so may result in further "disciplinary action" being taken against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997.
