Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
The Issue Whether Petitioner is entitled to participate in an early retirement incentive program established by an amendment to the 1991-1994 Collective Bargaining Agreement between the School Board of Pinellas County and the Pinellas Classroom Teachers Association.
Findings Of Fact Petitioner, Barbara Bates, is presently employed by the Pinellas County School Board, serving as a guidance counselor at the 16th Street Middle School. The Pinellas Classroom Teachers Association (P.C.T.A.) is the exclusive bargaining agent for all teachers employed by the School Board of Pinellas County (Board). The term "teachers", as used in that context, includes full time guidance counselors. At all times relevant, there was in force a collective bargaining agreement between the Board and the P.C.T.A., effective 1991-1994. During the 1991-92 school year, the Board experienced severe losses in revenue, and had to prepare for substantial budget cut backs in 1992/93 fiscal/school year. Among the measures taken by the Board to reduce expenditures was a reduction in the number of instructional personnel. To keep the number of instructional personnel involuntarily terminated as small as possible, the P.C.T.A. and the Board negotiated modifications to the existing collective bargaining agreement between them, providing for extended leave options, shared teaching responsibilities and early retirement incentives. The modifications stated in pertinent part: "ARTICLE 1 These proposed amendments to the agreement are in effect for 1992-93 only and cannot be extended without the mutual agreement of the parties . . . ARTICLE XX - TERMINAL PAY The following language will be implemented as part of the current language in Article XX, Section B: "Employees who are eligible for and accept regular retirement at thirty (30) years of creditable FRS service . . . shall receive a cash incentive of $8,500 payable upon retirement . . . IN WITNESS WHEREOF the aforesaid parties have hereunto executed this Agreement on the 11th day of March, 1992, to be effective on the 1st day of July 1992." Said language was ratified by the Board on March 11, 1992, and was subsequently ratified by a vote of the membership of the P.C.T.A. The amount of $8,500, as a retirement incentive, was arrived at as the average amount the Board would have had to pay in unemployment benefits to laid off teachers, and it was determined that it would be preferable to pay that amount to an employee to obtain voluntary retirement rather than to pay it to a former employee who had been involuntarily laid off, or terminated due to budget cuts. It was the understanding of the parties (the Board and P.C.T.A.), that in order to achieve that desired result, the individuals exercising the retirement option would have to be retired by the start of the school year, 1992/93, or else the position occupied by the retiring teacher could not be filled with a teacher who would otherwise have been terminated or laid off. The approved policy manual of the Board provides that the school year calendar begins July 1 of one year and ends on June 30 of the following year. Barbara Bates is a guidance counselor employed full time by the Board, and is thus a member of the bargaining unit represented by the P.C.T.A. Barbara Bates does not currently have thirty (30) years of creditable service in the Florida Retirement System (FRS), but will attain such on January 29, 1993. On April 20, 1992, Barbara Bates submitted an application to retire to be effective when she did attain thirty years of creditable service, and to receive the $8,500 cash incentive. Petitioner's application to retire and receive the incentive was submitted in a timely fashion. Initially, no individual other than Barbara Bates employed by the Board who would have attained thirty (30) years of creditable service after the start of the 1992/93 school year actually applied for the $8,500 retirement incentive; however, a number of individuals inquired as to the possibility of retiring shortly after the start of the 1992/93 school year. In order to clarify the intent of the March 11, 1992 amendment to the collective bargaining agreement, and to increase the number of individuals for whom the $8,500 incentive would be available, the Board and the P.C.T.A. approved another amendment to the collective bargaining agreement which stated in part: ". . . 6. The parties to the agreement concur that the intent of the retirement incentive program is to create vacancies to avoid laying off teachers in August of 1992. To this end, eligibility for participation in this incentive was limited to those educators who met eligible requirements on or before June 30, 1992. Subsequent to the receipt of applications, a number of exceptions were requested by those who were close to the June 30 deadline. In an effort to accommodate these requests and still satisfy the intent of the parties to create vacancies prior to the opening of school in the fall, the parties mutually agreed that the following exceptions will be allowed to the original requirement of thirty years service or ten years of service and age 62 prior to June 30, 1992: Employees who are not yet 62, but are willing to accept the State imposed penalty of 5/12ths of 1% per month, provided their date of retirement is on or before June 30, 1992, or in the case of 235 day contract teachers the last day of their July, 1992 quinmester. Employees on 235 day contracts who wish to work until the end of the quinmester in July, and who meet eligibility criteria prior to the end of that quin. Employees who become qualified during the summer of 1992 or prior to November 1, who are willing to accept alternative assignments, and who are approved by the Superintendent or his designees and the president of the association or his designee, provided that the retirement date will be the earliest date upon which the employee satisfies the established eligibility, requirements, such dates not to extend beyond November 1, 1992."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application to participate in the early retirement incentive bonus program for the school year 1992 should be DENIED. DONE and ENTERED this 24th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,11,12,13 Rejected: As against the greater weight of evidence: paragraphs 9,10,14 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1-17 COPIES FURNISHED: Louis Kwall, Esquire GROSS & KWALL 133 North Fort Harrison Avenue Clearwater, Florida 34615 Bruce P. Taylor, Esquire Pinellas County School Board Largo Administration Building 301 Fourth Street, S.W. Post Office Box 2942 Largo, Florida 34649 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C. 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinsley, Superintendent Pinellas County School Board P.O. Box 4688 Clearwater, Florida 33518
The Issue Whether Respondent, a pari-mutuel wagering occupational licensing holder, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent held pari-mutuel wagering license number 0680747-1081. Prior to November 14, 1994, Kenneth Manness, a blacksmith who does business as Better Hooves, Inc., provided services and supplies at the request of Respondent for horses which Respondent kept and raced on the grounds of the Pompano Park Harness Track during the 1994 meet. Mr. Manness, d/b/a Better Hooves, Inc., made repeated demands for Respondent to pay the bills that had been submitted to him for these services and supplies. Respondent failed to pay this debt. This debt was for services and supplies that directly relate to racing at a pari-mutuel facility within the State of Florida. Mr. Manness, d/b/a Better Hooves, Inc., filed suit against Respondent based on this indebtedness in the County Court of Broward County, Florida where the proceeding was assigned Case Number CO-NO-94-001685. On November 14, 1994, a default judgment was entered against Respondent in the County Court proceeding. The Court found that Respondent was indebted to Mr. Manness, d/b/a Better Hooves, Inc., in the principal amount of $1,332.30 and ordered Respondent to pay that amount plus costs in the amount of $115.00, for a total of $1,437.30. Interest was to accrue at the rate of 12 percent per annum. As of the date of the formal hearing, Respondent had paid none of this indebtedness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Respondent's pari-mutuel wagering occupational license be revoked. It is further recommended that Respondent be given leave to apply for licensure after he submits proof that the judgment described in this Recommended Order has been fully satisfied. DONE AND ENTERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1996. COPIES FURNISHED: Thomas W. Darby, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mr. Claude D. Richards 10 Parkwood Road Westbury, New York 11590 Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact On May 1, 2001, Petitioner was reassigned from Accountant Supervisor I to Administrative Assistant II. At the time, Petitioner was under the Career Service System and was a probationary status employee. Petitioner’s position as an Administrative Assistant II was a position within the PERC certified collective bargaining unit, entitled the Administrative and Clerical Unit, Certification Number 542 issued on June 25, 1981. For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In the early part of 2001, the Department’s Bureau of Personnel Services worked with the Department of Management Services to implement the Service First initiative. As part of Service First’s implementation, the Bureau reviewed positions to determine whether they met the criteria set forth in Section 110.205, Florida Statutes. After its review, the Bureau forwarded its determination regarding those positions to the Department of Management Services (DMS) for reclassification or exemption as appropriate. The Bureau reviewed Petitioner’s duties and consulted with Petitioner’s immediate and indirect supervisors regarding the essential duties assigned to Petitioner’s position. Based on that review, the Bureau determined that Petitioner’s position was confidential. Although the evidence at the hearing did not demonstrate such the Bureau determined that Ms. Wofford and Petitioner had access to confidential collective bargaining material due to their work with the Long-Range Program Plan (LRPP). On July 1, 2001, Petitioner’s position was reclassified from Career Service to SES due to the Service First initiative. Petitioner’s position was reclassified to SES because it was determined to be a confidential position as defined in Section 110.205, Florida Statutes. The title of the position remained the same. A new position description under SES was approved by the Division Director, Ms. Sandy Delopez. The new SES description was essentially the same as Petitioner’s old Career Service position description. In pertinent part, the position description as of July 1, 2001, stated the following: This position is authorized to work independently assisting management in the coordination of tasks and/or assignments, which are complex in nature, broad in objective with diverse functions. Duty [Sic] involves the performance of activities, which involve independent planning and prioritization. Assists in collecting, evaluating and analyzing data and work. Review records and reports that require action and recommend solutions that fully utilize technology. Perform special assignments, research, report preparation, conducting and/or directing special projects or activities as directed. Responsible for performing other related duties as required. Petitioner remained employed under the new classification until his termination on March 12, 2003. As an Administrative Assistant II under SES, Petitioner worked in the Office of Planning and Business Support under the Division of Administrative Services in the Department of Highway Safety and Motor Vehicles. One of the Division’s major responsibilities was to coordinate preparation of the LRPP. The Division provided administrative support functions for the Department, including budgeting, accounting, human resources, purchasing and contracts. Petitioner reported to Stacy Wofford, the Bureau Chief of Purchasing and Contracts, who acted as his immediate supervisor. Ms. Wofford served as the Agency Planning Officer. Petitioner’s chain of command also included Ms. Wofford’s direct supervisor, Mallory Horne, Jr., Chief of Staff, and the Division Director, Ms. Sandy DeLopez. Ms. Wofford had the primary responsibility for preparing the LRPP. The Office of Planning only had two employees, Ms. Wofford and Petitioner. The LRPP is a five-year plan prepared by Respondent each year, pursuant to Section 216.013, Florida Statutes, that lays out the agency’s goals, strategies for reaching those goals, and the performance measures used by the agency in evaluation of its performance. The Governor’s Office directed the items and issues that were to be included in the LRPP. The LRPP addresses Respondent’s plan for reductions in force, and identifies specific positions that could be impacted by such reductions in force. There was no substantive evidence that this information was used in collective bargaining in any substantial way. The LRPP also is used to justify the Department’s legislative budget request. The plan provides the framework and foundation for the Department’s legislative budget request and addresses how the Department is going to meet the Governor’s mandate of a five percent budget and workforce reduction for each year. As a part of the LRPP, the Department provided its plan for reductions in force and identified specifically positions that would be impacted. It has a substantial impact on the preparation of the Department’s budget and legislative consideration of that budget. However, neither Ms. Wofford, nor Petitioner prepared or administered agency budgets. Ms. Wofford had primary responsibility for coordinating the plan’s preparation. In preparing the LRPP, Ms. Wofford had to analyze the goals of the various Divisions in the Department and what positions may be possible for elimination or consolidation. Furthermore, Ms. Wofford consulted with bureau chiefs in staff meetings and briefings to provide information to the Division Director that could be used in determining where job cuts would be made. Based on her job description, Ms. Wofford’s position was not of a routine, clerical or ministerial nature and did require the application of independent judgment, such that she constituted a managerial or supervisory employee. However, the information used in the LRPP was developed by and collected from the various Divisions of the Department. In that regard the evidence demonstrates that Ms. Wofford’s true duties were of a ministerial nature and included faithfully reporting to others the information she obtained from others. Petitioner assisted Ms. Wofford in obtaining the information collected from the various Divisions and putting that information into the correct format for easy inclusion into the LRPP. To accomplish these tasks Petitioner utilized Microsoft Word, Excel and Access and had significant experience in those areas. None of the information gathered in preparing the LRPP was exempt from disclosure under the Public Records Act, Chapter 119, Florida Statutes. The information contained in the LRPP was clearly important and sensitive because of its potential impact. The evidence did not show that such information was secret or confidential information. The testimony of the Division Director that he considered everything in his office to be confidential is insufficient to establish such confidentiality, since clearly the Sunshine laws apply to his office and much of the information he deals with is subject to public scrutiny. Moreover, such testimony is insufficient to establish confidentiality strictures down to Petitioner’s level of employment. At the time, the DMS conducted the collective bargaining negotiations with unions representing State employees. The Department did not conduct such negotiations. However, the Department had several managers on the advisory council that worked with DMS on collective bargaining with unions. These included Ken Wilson, Sandra DeLopez, a chief from the Highway Patrol, and sometimes one of the agency attorneys. Neither Stacy Wofford, nor her supervisor, Mallory Horne, was the bargaining team. Neither Ms. Wofford, nor Petitioner prepared, or assisted anyone in preparing, collective bargaining proposals to be used in collective bargaining negotiations. Moreover, neither was ever asked to do so. According to Petitioner’s testimony, he preformed two general functions in his position as an Administrate Assistant II: writing computer programs and performing ad hoc clerical tasks for Ms. Wofford. Approximately 80 percent of Petitioner’s time was spent on various computer programming tasks; approximately 20 percent was spent in performing clerical tasks. On the other hand, Ms. Wofford described Mr. Snyder as her “right hand person,” and as someone who worked very close with her. The evidence showed that Petitioner’s work in programming consisted of creating various programs that were ultimately used by other administrative units to collect and display data. After creating the programs, Petitioner would turn the application over to the administrative unit for which it was prepared, for its use. He developed programs, to analyze how quickly property was entered into the State property system, customer service surveys, the use of electricity in State buildings and programs for the State childcare facility. These were created, primarily, using Visual Basic for applications and Microsoft Excel. Petitioner’s work on the LRPP was essentially clerical in nature. It consisted of receiving numerous documents from the various Divisions of the Department, and compiling all of the documents into a single document, with consistent formatting. His primary concerns were that the final document used the same typeface, or font, the same margins, and that the various compiled documents fell on the correct page. He had no control over the data; he simply arranged the formatting and entered information into spreadsheet and database programs for use in the LRPP. Petitioner had no policy-making role in the development of the LRPP. Petitioner helped Ms. Wofford in assimilating information and verifying that the information being provided by the various program areas was the most recent and accurate. In addition, he made sure that the information was uploaded electronically in the Legislature’s budget system. Petitioner also created the formulas used to get to the output reflected on the LRPP. However, these formulas were basic mathematical formulas and not formulas that used policy parameters in their creation. The evidence did not show Petitioner’s assistance was independent or required significant amounts of independent judgment. Petitioner, also, along with Ms. Wofford, was involved in meetings related to the preparation of the LRPP. These meetings would have included Mr. Neal Standley, Budget Chief, Ms. Sandy DeLopez, Division Director, Mr. Ken Wilson, former Personnel Chief, Ms. Rene Knight current Personnel Chief, and other managers. Again, the evidence did not demonstrate that Petitioner’s role was other than to explain various processes used to create the LRPP. His role did not involve policy judgments or require independent action or judgment. Petitioner did not supervise any other employee; did not give performance evaluations; did not work on collective bargaining grievances or arbitrations or on Career Service appeals; and did not assist in developing policies or materials to be used in collective bargaining. Petitioner did not regularly handle information that was not subject to public inspection. Although he performed clerical work on the LRPP, he never knowingly viewed information identifying positions the agency intended to eliminate or consolidate due to reductions in force. In particular, Petitioner did not have access to a database of positions to be eliminated due to reductions in force, and did not know of the existence of any such database. In short, the evidence did not demonstrate that Petitioner was either a managerial employee or an employee involved with confidential matters. Therefore his position should not have been reclassified from Career Service to SES.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position of Administrative Assistant II, is that of a Career Service employee, setting aside the classification as Select Exempt Service, and reinstating Petitioner as a person entitled to rights pertaining to Career Service employees as of the time of his improper reclassification. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of December, 2005. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Room A-432, Neil Kirkman Building Tallahassee, Florida 32399-0500 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Melissa Horwitz, Esquire 6840 Highland Park Terrace Tallahassee, Florida 32301 Avery D. McKnight, Esquire Alien, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Based on the foregoing, it is ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority. DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1996. COPIES FURNISHED: Claire D. Dryfuss, Esquire M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack E. Ruby, Esquire 2596 Seagate Drive, Suite 100 Tallahassee, Florida 32301-5032 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Whether Respondent, Douglas Porter, should be terminated for his third absence without leave in violation of the Collective Bargaining Agreement between Petitioner, Seminole County School Board, and the non-instructional personnel of Seminole County.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter and the joint stipulation submitted April 24, 2007, the following Findings of Facts are made: Respondent, Douglas Porter, is, and has been, employed by the School Board of Seminole County since July 13, 1993. Paul Hagerty and William Vogel have been Superintendents of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the Collective Bargaining Agreement, and School Board policies. Respondent is an employee of Petitioner's Grounds Maintenance Department, 100 Division ("maintenance department"). He began his employment in that division at the entry level position of Grounds Laborer I and worked his way up to Grounds Laborer II, prior to becoming a mechanic crew leader. As a mechanic crew leader, Respondent supervised three employees on his crew and interacted with principals and assistant principals to determine the landscaping needs of various schools. Respondent held the position of mechanic crew leader for approximately two years. Respondent has been employed by Petitioner for more than three years and is a "regular" employee and subject to the Collective Bargaining Agreement, copies of which he receives annually. Article VII, Section 15, of the Collective Bargaining Agreement, provides, in pertinent part: Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense - Written reprimand and one day suspension without pay. 2nd Offense - Five day suspension without pay. 3rd Offense - Recommended for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file. Article VII, Section 15, has consistently been construed to apply to an employee's absence from his or her assigned duties for any portion of the day, as well as the entire day. An employee who is absent from his or her assigned work duties without the permission of the employee's supervisor is considered to be absent without leave. The Collective Bargaining Agreement requires that an employee call in before the start of the work day if he or she is going to be absent; historically, maintenance department employees are given a 15-minute grace period after the start of the work day to call in. Although not reduced to a written directive, this practice is well-known within the maintenance department. An employee in the maintenance department who calls in sick, is reported to the payroll clerk who checks the employee's timesheet; if the employee has time on the books, he or she is approved for pay for the sick time. If the employee does not have time on the books, he or she is charged with a sick day with no pay. An employee who fails to call in, or calls in late, is considered absent without leave if he or she does not physically report for work that day or for the portion of the day missed due to tardiness. If the employee reports for work, he or she is subject to discipline, but is paid for the hours worked. If the employee calls in during the 15-minute grace period and is late, he or she is not subject to discipline, but is paid only for the time worked. Respondent had used 13 days of annual leave, 16 days of sick and personal leave, and 27 days of unpaid leave in the 2000 school year. This prompted Respondent's supervisor to indicate that his attendance needed improvement in Respondent's annual evaluation. As reflected in each of Respondent's annual assessments during his employment, Respondent's absenteeism created a hardship on his department and his attendance needed improvement. Normally, an employee is not required to provide proof of illness. In instances where an employee has excessive sick days, validation of illness is required. Concern with Respondent's excessive sick days prompted his supervisor to require, by letter dated October 1, 2001, medical certification of future illness that required missing work. By October 1, 2001, for the 2001 school year, which began on July 1, 2001, Respondent had used six days of vacation, eight days of paid leave, and four and a-half days of leave without pay. This "abuse of sick leave" resulted in a letter of reprimand dated October 1, 2001, which was clearly intended to warn Respondent to improve his attendance and required validation of illness as referenced in the preceding paragraph. Respondent was absent on September 1, 2002. He did not provide a medical validation of the illness causing the absence and, as a result, the absence was treated as an absence without leave. On September 18, 2002, Respondent received a letter of reprimand and a one-day suspension without pay due to his failure to provide medical verification for this unpaid leave day. This invoked the first step of progressive discipline as contained in the Collective Bargaining Agreement. On March 20, 2005, Respondent called in during the late evening and left a message on his supervisor's voicemail stating that he would not be at work the following day. The message was vulgar and unacceptable. Respondent did not report to work on March 21, 2005, and did not produce medical verification for his absence. On March 28, 2005, his supervisor recommended that he be suspended from work without pay for this absence without leave, his second offense in the progressive discipline system. On April 7, 2005, Respondent received a letter from the Superintendent notifying him that he would be following the supervisor's disciplinary recommendation for Respondent's absence without leave. The Superintendent's letter clearly references Respondent's failure to give appropriate prior notice of absences "in accordance with practices established at each cost center," and warns that future failure to comply "with procedures established at the Facilities Center to properly report and receive approval for future absences" would result in discipline in accordance with the Collective Bargaining Agreement. On September 7, 2006, Respondent voluntarily entered South Seminole hospital, a psychiatric facility. He was discharged on or about September 25, 2006. Respondent's condition required that he again be hospitalized on October 31, 2006, for four days. Respondent was diagnosed as suffering from bipolar disorder. During his hospitalizations, Respondent was administered various medications to treat his condition. Following release from his second hospitalization, Respondent's prescriptions were changed due to adverse side effects he was experiencing. In addition to being diagnosed with bipolar disorder, Respondent also voluntarily sought treatment for substance abuse at the Grove Counseling Center through the outpatient drug/substance abuse program. Respondent returned to work in November 2006, but was still suffering from problems related to his medication. He was late on November 8, 2006, and absent on November 9, 2006. Respondent had a meeting with his supervisor on November 10, 2006; it was the supervisor's intention to recommend Respondent for termination for the tardiness of November 8, 2006, and absence of November 9, 2006. On November 10, 2006, Respondent advised his supervisor that he had been diagnosed with bipolar disorder in September 2006 and that he was having problems with his medication. As a result of this conversation, instead of being recommended for termination, Respondent was given time off to adjust his medications, and it was agreed that Respondent would return to work on January 2, 2007. On January 9, 2007, approximately a week after returning to work, Respondent called in at approximately 7:10 a.m., his work day begins at 6:30 a.m., to advise that he had overslept and would be late to work. Respondent arrived at work at 7:28 a.m., 58 minutes after the start of his work day. As a result of this tardiness, Respondent's supervisor recommended suspension and termination to the Superintendent for a third offense of being absent without leave.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Doug Porter, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of August, 2007. COPIES FURNISHED: Jeanine Blomberg, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Bill Vogel, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Pamela Hubbell Cazares, Esquire Chamblee, Johnson & Haynes, P.A. 510 Vonderburg Drive, Suite 200 Brandon, Florida 33511
The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 10th day of October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue The issue is whether Petitioner should terminate Respondent's employment because she excessively used the internet for personal matters unrelated to her work while she was on duty at her assigned computer terminal.
Findings Of Fact Petitioner is the governing board of the Marion County School District. At all times material to this proceeding, Petitioner had a written internet usage policy for its employees. The policy states as follows in pertinent part: District computers, network access, and other information resources such as electronic mail (e-mail) are provided for staff use to support the District mission and goals. All such resources are District property, and subject to the same rules for use as other physical property. In addition, the following rules shall apply: Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized. E-mail, World Wide Web pages, and other forms of electronic documentation: Will not be obscene, abusive, or contain other inappropriate material. Will require the same handling as other public records. User accounts and passwords must not be shared except where authorized. The person in whose name an account is issued in responsible for its proper use at all times. Copyright and license agreements will be respected; no unauthorized copies of programs or files will be made. Users shall not take unauthorized actions which gain access or attempt to gain access to, deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems. However, the written policy was not disseminated or discussed with Respondent or any other employees. Instead, Petitioner's employees generally understood that they could use the internet for personal reasons during their two 15-minute breaks and their one-hour lunch break for a total of one and a half hours a day. Respondent worked for Petitioner for 12 years. She began working as a data entry clerk in the Applied Technology Department. In time, Respondent was promoted to the position of a computer lab technician in the same department. Respondent's job involved gathering data on students in Petitioner's middle and high school vocational programs and electronically transmitting the information to the Florida Department of Education (DOE). Her primary job required her to code and edit the information, correcting any problems identified by DOE so that Petitioner could receive the appropriate funding for its vocational programs. Respondent required more time to complete her primary duties at certain times of the year depending on DOE reporting requirements. At other times of the year, Respondent was able to complete her work with time to spare. Kathy Clarke worked with Respondent in the Applied Technology Department. Respondent showed Ms. Clarke and other people in the department how to protect the privacy of the department's computers by using a screen-saver password. Ms. Clarke chose "kiss" as the screen-saver password. Several employees, including Respondent, used the same screen-saver password so that, if necessary, they could access each other's computers. In June 1999, Petitioner furnished Respondent with a new Mackintosh desk-top computer that was delivered without the appropriate internal zip drive. Respondent immediately installed a software password protection program on her computer. When Petitioner received the zip drive for Respondent's computer, Petitioner arranged for outside computer technicians to install it. Respondent was not in the office when the outside computer technicians arrived. The outside computer technicians and Kathy Clarke waited 45 minutes for Respondent to return to the office because they did not know the software password to access Respondent's computer. When Respondent returned to her office, she installed the zip drive herself. At or near the end of 1999, Petitioner transferred Respondent from the Applied Technology Department to the Management Information Services (MIS) Department. The transfer from one department to another required the physical relocation of Respondent's desk and computer, but her duties in relation to transmitting information to DOE for the vocational programs remained the same. Anthony Burke became Respondent's supervisor in the MIS Department. He assigned Respondent additional duties on an as needed basis. These duties included answering the phone, passing out maps, mailing out notices, scanning records, greeting walk-in clients, and generally helping her co-workers when they got behind in their work. On some occasions, Respondent willingly accepted these assignments; on other occasions, she acted as if she resented doing any work except her primary responsibility of transmitting vocational educational data. In the latter event, Respondent would tell her supervisor that she was too busy to perform other duties. When Respondent set up her workstation in the MIS Department, she located her computer monitor with the screen facing a storage area. The position of the monitor made it difficult for others in the office to casually observe the monitor's screen. In April or May 2001, Mr. Burke decided to reconfigure the workstations within the MIS Department so that employees with highly specialized work would not be located in the flow of walk-in traffic. The reconfiguration of the workstations resulted in Respondent being moved to the front of the office and next to Tanya Eason. Respondent objected to being placed next to Ms. Eason with whom Respondent had a personality conflict. Respondent informed Mr. Burke about her displeasure over the move to the front of the office. She claimed that being in the new location with an obligation to back up Ms. Eason, the "office secretary and greeter," would interfere with Respondent's duties related to vocational programs. Mr. Burke responded that he intended to proceed with the reconfiguration plan as soon as possible. Respondent had a personal relationship with Jim Warford, Superintendent of Marion County School District, because he had taught Respondent's daughter. Based on that relationship, Respondent had a conversation with Superintendent Warford about her concerns with the changes in the MIS Department. Subsequently, Mr. Burke became aware that Respondent had spoken to Superintendent Warford about problems in the MIS Department. After discussing his concerns with Respondent and for at least a couple of months, Mr. Burke did not acknowledge or speak to Respondent except in the context of a departmental meeting. After the reconfiguration of the workstations in the MIS Department, Mr. Burke observed that Respondent was generally busy at her computer terminal. However, Respondent's workstation was once again set up so that one could not observe her monitor's screen without entering her work station and standing behind or adjacent to her. In October 2001, Mr. Burke and Christopher Mendola, Director of Information and Technology Services, discovered information that led them to question whether Respondent had breached Mr. Burke's e-mail security. After the close of business on October 16, 2001, Mr. Burke and Mr. Mendola took Respondent's computer off of her desk. When Respondent returned to work on October 17, 2001, she had no idea why her computer was missing. At approximately 4:00 p.m., on October 17, 2001, Respondent attended a meeting with Mr. Mendola, Mr. Burke, and Jim Noell, Petitioner's personnel director. At that time, Respondent was informed that her computer was taken because she had been seen trying to access Mr. Burke's e-mail in a web design class. Respondent denied that she had breached anyone's e-mail security. She explained that during a web-design class, her e-mail had been so easy to access through Outlook Express that she used Mr. Burke's name to see if other e-mail addresses were as easily accessible. During the October 17, 2001, meeting, Mr. Mendola asked Respondent whether she ever used the internet for personal reasons because it was inappropriate to do so on "company time." Respondent replied emphatically that she did not use the internet for personal reasons. Mr. Mendola was in possession of Respondent's computer for approximately one month. During that time, Respondent was assigned alternative duties. Because she did not have an office computer with internet capabilities, Respondent could not perform her duties related to the vocational program. Mr. Mendola had Respondent's computer placed in a secure location in his office. Mr. Mendola could start the computer but could not access the computer's contents due to a password protection program. Respondent would not provide Mr. Mendola with the password but she agreed to disable the password protection program. Mr. Mendola did not find evidence that Respondent had made any effort to access Mr. Burke's e-mail from her office computer. He did find evidence that a large number of internet websites, unrelated to work, had been extensively accessed on Respondent's computer. Among the information stored on Respondent's hard drive were "favorite" or "book-marked" sites organized into categories. Mr. Mendola began looking through the caché, a temporary storage area, in Respondent's computer. In the caché, he found pictures and documents, indicating that Respondent's computer had accessed at least 33 internet sites. The caché contained hundreds of photographs of people from internet-dating sites. The dating sites included "Welcome to Dating.com," and "www.Homecams.com." Access to the "www.Homecams.com" site was blocked by filter that Petitioner uses to prevent retrieval of inappropriate internet sites. Subsequently, a second password protection program appeared on Respondent's computer, preventing Mr. Mendola from accessing other areas of Respondent's hard drive. Respondent had to disable the second password protection program before Mr. Mendola could proceed with his investigation. Mr. Mendola's continued investigation revealed one internet site that was related to Respondent's work. The name of that site was "Work Force Development." Next, Mr. Mendola performed a hard drive recovery. He recovered thousands of internet files unrelated to Respondent's work. Some files could not be recovered because they had been written over. Mr. Mendola began looking for files that were recoverable and so large in size as to be significant. He found that approximately 25 percent of Respondent's hard drive contained at least 10,000 such files. Many of these files were bookmarked so they could be easily accessed at a later date. The files came from internet sites related to travel, perfumes, and other commercial sites, together with one education site. The files on Respondent's hard drive also included a lot of "see-me cam sites" where people had cameras set up, projecting pictures from their living rooms or bedrooms every five to ten minutes, or cameras to view cars crossing a bridge. Some of the "see-me cam sites" that were listed in Respondent's history list could not be retrieved from Mr. Mendola's office because of the filter that Petitioner uses to block inappropriate or pornographic internet sites. During the hearing, Respondent suggested that telephone repairmen who were working in the vicinity of her office might have accessed her computer after hours. She asserted that she installed a password protection program on her computer at that time. This would account for Respondent's having two such password protection programs on her computer. However, there is no credible evidence that any access by the repairmen would have resulted in the list of "bookmarks" and "favorites" found in Respondent's hard drive. Additionally, there was no credible evidence that the repairmen had access to her computer during the dates and times that print-outs of her internet usage show the activity to have occurred. To the contrary, Respondent had placed a password protection program on her computer as early as June 1999 such that Kathy Clarke and the outside computer technicians could not access Respondent's computer. At some point in the middle of November 2001, Mr. Mendola returned Respondent's computer to her desk. Mr. Mendola did not tell Respondent what he had discovered on her computer. Respondent was not aware that Mr. Mendola had installed a real-time monitor on the computer. During the time that Respondent's computer was being monitored, Petitioner's staff made daily reports regarding Respondent's internet usage. They found that her internet activity involved sites that were unrelated to work. A week or so later, Mr. Mendola informed Respondent that he was going to check her computer again. He asked her not to shut it off and to make sure that she disabled the password protection. Mr. Mendola's second check of Respondent's computer confirmed that Respondent was using her computer to access the internet for purposes unrelated to her work. For example, there were many files related to furniture shopping. Mr. Mendola also discovered that the hard drive had been changed so that some files previously stored on the computer were no longer located there. Respondent's hard drive had been erased and started over. On or about December 17, 2001, Mr. Mendola and Mr. Noell had a meeting with Respondent. At that meeting, Respondent was shown printouts showing her internet usage. Respondent was then suspended until the January 8, 2002, school board meeting at which time it was recommended that Respondent be terminated. The real-time monitoring of Respondent's computer revealed that she used the internet extensively for personal reasons during working hours. Her internet usage at these times was more than the time available in a normal work day during two 15-minute breaks and a one-hour lunch break. It may be that Respondent's computer remained connected to the internet while she performed her primary or secondary duties off-line. In that case, the internet site might have automatically sent additional unsolicited messages and files that were stored in Respondent's hard drive. At times, Respondent might have used the internet beyond the time allotted for breaks and lunch when she completed her job assignments. However, Respondent admitted during the hearing that she used the internet as much as four hours a day, or perhaps as much as all day, during the time that she was "looking for furniture." Petitioner has always been satisfied with Respondent's job performance. With the exception of one performance evaluation in May 2001, Respondent has received the highest evaluation possible from her supervisors. In May 2001, Respondent received a "satisfactory" performance rating in teamwork skills and an "excellent" performance rating in all other areas. There is no evidence that Respondent's internet usage ever interfered with the performance of her primary duties relating to the transmission of vocational school program data to DOE. However, Respondent knew or should have known that Mr. Burke would have assigned her additional duties for the good of the department if he had known she was using so much of her time for personal activities after completing her assigned work. In fact, Mr. Burke testified that he would have told her to "knock it off" because such extensive internet usage was equivalent to reading a novel, watching television, or making personal telephone calls for several hours a day. Section 5.02 of the Collective Bargaining Agreement between Petitioner and the Marion Essential Support Personnel states that "[n]o bargaining unit member shall be disciplined without just cause." The agreement also contains a procedure know as "NEAT." This procedure, which is set forth in Section 5.03 of the Collective Bargaining Agreement, states as follows in pertinent part: Section 5.03 Except in emergency situations and situations which threaten the health and safety of students or other employees, the NEAT procedure will be used when disciplining members of the bargaining unit or when a deficiency is defined. The NEAT Procedure is defined as follows: N - Notice - when a deficiency is defined, the building administrator will provide the employee with written notification of the deficiency. E - Explanation and Expectation - the building administrator will include in the written notification the nature of the deficiency and the performance level expected. A - Assistance - the building administrator will include in the written notification where information can be obtained to help the employee improve and/or will provide other forms of assistance as appropriate. T - Time - the building administrator will define for the employee an appropriate time frame for improvement to occur before any disciplinary action is taken. Petitioner did not use the NEAT procedure before suspending Respondent's employment. Mr. Mendola admitted during the hearing that Respondent's internet usage did not involve an emergency situation or threaten the health and safety of students or other employees. He also admitted that under the Collective Bargaining Agreement, he did not have discretion to ignore the NEAT procedure when disciplining an employee. Mr. Mendola was aware of the NEAT procedure; he had used it with other employees. In this case he did not implement the procedure because of Respondent's denials that she had ever used the internet for personal reasons. According to Mr. Mendola, Respondent's lack of truthfulness precluded the benefit of any assistance he could have provided Respondent in correcting her behavior pursuant to the NEAT procedure. Article 4.00 of the Collective Bargaining Agreement sets forth a four-step grievance procedure, the last of which is binding arbitration. Section 4.10 of the Collective Bargaining Agreement states as follows in pertinent part: Section 4.10 For the purposes of this Article, the term "grievance" means any dispute between the Employer and one or more employees involving the interpretation or application of the current Collective Bargaining Agreement. The following matters shall not be the basis of any grievance filed and/or processed under the Grievance Procedures of this Agreement. * * * 3. Any complaint respecting termination of employment for which there is another remedial procedure or forum established by law or regulation having the force of law . . . .
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order reinstating Respondent's employment with back pay and benefits. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 3rd day of June, 2002. COPIES FURNISHED: William C. Haldin, Jr., Esquire William C. Haldin, Jr., P.A. 808 Southeast Fort King Street Ocala, Florida 34471 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Beverly Morris, Esquire Marion County School Board 808 Southeast Fort King Street Ocala, Florida 34471 James Warford, Superintendent Marion County School Board Post Office 670 Ocala, Florida 34478-0670
Conclusions Objections 3B, 3C and 3D involve factual questions which can only be resolved by an evaluation of the credibility of various witnesses. Consequently, pursuant to Fla. Admin. Code Rule 8H- 3.28, a hearing shall be held where the underlying facts can be determined prior to ruling on the merits of those objections and the remainder of CWA's Objections are dismissed. It is so ordered. LEONARD A. CARSON CHAIRMAN 77E-207 THIS IS TO CERTIFY that on April 21st, 1977, this document was filed in the office of the Public Employees Relations Commission at Tallahassee and a copy served on each party at its last known address by certified mail. PUBLIC EMPLOYEES RELATIONS COMMISSION BY: Judy N. Collins Deputy Clerk
