The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. 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 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’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, 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 10th day of December, 2002.
The Issue Whether revocation of Respondent's state certification requires his dismissal by the Pinellas County School Board and, if so, has Respondents' certificate been revoked for these purposes by the Education Practices Commission.
Findings Of Fact At all times relevant hereto Respondent was employed on the instructional staff of the Pinellas County School system under a Professional Services Contract. On October 23, 1985, Respondent was issued a Florida Department of Education Teacher's Certificate valid through June 30, 1990. By Administrative Complaint dated October 31, 1988, the Commissioner of Education alleged Respondent violated Sections 231.28 (1)(a), (c), (e), (h), and (2), Florida Statutes, and Rule 6B-1.006(5)(a), (f), (g), and (h), Florida Administrative Code. These allegations constitute grounds for revocation of Respondent's certificate. Respondent waived formal hearing, and requested informal proceedings before the EPC. These informal proceedings resulted in a Final Order filed February 17, 1989 in which Respondent's teaching certificate was revoked for three years. The action of the EPC was announced orally at the informal hearing on January 26, 1989, and on February 3, 1989, Respondent filed a Motion to Rescind Election of Rights previously waiving formal proceedings and to set aside agency action. On February 22, 1989, Respondent filed a motion with EPC for a stay pending final review in which he requested the action of the EPC revoking his certificate be stayed pending action by the EPC on his February 3rd motion. On February 23, 1989, an order was entered by the EPC granting the stay pending reconsideration of the order revoking Respondent's teaching certificate On May 30, 1989, the EPC entered an order denying Respondent's demand for reconsideration and affirming it's final order revoking Respondent's certificate. An appeal from that order had previously been filed with the Second District Court of Appeals, but jurisdiction of the Court of Appeals had been relinquished to allow the EPC to reconsider. On July 25, 1989, Respondent filed in the Second District of Appeals a Motion to Stay the revocation of his certificate pending review by the court of his appeal. By order entered August 9, 1989, the Second District Court of Appeals denied the motion to stay the revocation of Respondent's certificate pending appeal of the EPC order.
Recommendation It is recommended that a Final Order be entered dismissing Lloyd Crossman from the instructional staff of the Pinellas County School system. ENTERED this 13th day of October, 1989, in Tallahassee, Florida. K.N. AYERS 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 13th day of October, 1989. COPIES FURNISHED: Bruce Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, Florida 33675-0638 Dr. Scott N. Rose, Supt. Pinellas County Schools 1960 East Druid Road Clearwater, Florida 33546 Karen Barr Wilde, Exec. Dir. Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 15 days without pay and return her to an annual contract.
Findings Of Fact Ms. Gabriele has been employed by the School Board since October 13, 1997. As a member of the School Board's instructional staff, Ms. Gabriele's employment was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. During the 2010-2011 school year, Ms. Gabriele was a teacher at Bashaw Elementary School (Bashaw). As a teacher, Ms. Gabriele was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. On February 17, 2011, an Office of Professional Standards (OPS) file was opened regarding Ms. Gabriele based upon allegations that, on February 9, 2011, Ms. Gabriele asked a teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of students, "Can I kill a kid today?", and, on February 16, 2011, Ms. Gabriele called a female student to the front of the classroom and yelled at her in the presence of other students and a parent. On April 18, 2011, another OPS file was opened regarding Ms. Gabriele based upon an allegation that she made intentional contact with a witness (Ms. Twinem) who was involved in a recent OPS investigation into the alleged misconduct of Ms. Gabriele. On April 19, 2011, the School Board notified Ms. Gabriele of its intent to place her on paid administrative leave pending the OPS investigation. On June 3, 2011, the superintendent notified Ms. Gabriele of his intent to recommend the suspension of her employment for 15 days without pay, the dates of which to be determined by her principal, and a return to annual contract status. The June 2011 AC notified Ms. Gabriele of the School Board's intent to suspend her employment and set forth the basis of the superintendent's recommendation for suspension. In the AC, the School Board charged that Ms. Gabriele had engaged in actions which constituted just cause under Section 6.11 of the Policies and Procedures Manual of the School Board. These actions included: immorality, misconduct in office, corporal punishment, excessive force, and violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Joshua Bennett (Principal Bennett) became the principal of Bashaw in September 2010. Among his many other duties during the 2010-2011 school year, Principal Bennett was responsible for the supervision of the Bashaw teachers, including Ms. Gabriele, who was a fifth-grade teacher. Ms. Gabriele's class size fluctuated from 18 to 22 students during the 2010-2011 school year. It was noted that, during the math instruction period, there were changes in the number of students in her classroom, and it changed when Principal Bennett moved a student out of her class. Principal Bennett received some parent complaints and concerns regarding Ms. Gabriele shortly after he became Bashaw's principal. Based on these complaints, Principal Bennett collected information from the parents and decided to have an informal conversation with Ms. Gabriele. He also determined to walk through her classroom more frequently during the school year. Further, Principal Bennett recommended to Ms. Gabriele that she take some behavior management classes. Ms. Gabriele had the services of a paraprofessional (a/k/a a teacher's aide), Ms. Twinem, for a specific amount of time (40 to 50 minutes) during a particular day each week. While working for Ms. Gabriele as a paraprofessional, Ms. Twinem would check off homework, sort papers, grade papers, or work with groups of students as she was directed. In February 2011, Ms. Twinem approached Ms. Gabriele to provide her information. There were several students engaged in conversations in close proximity to Ms. Gabriele as she sat at her desk. According to Ms. Twinem, Ms. Twinem was standing beside Ms. Gabriele's desk when Ms. Gabriele looked at her and, in a frustrated tone, stated, "Can I kill a kid?" (Gabriele's Statement). Ms. Twinem was speechless because she thought it was inappropriate for Ms. Gabriele to make that statement in front of students. Ms. Twinem told Principal Bennett of Gabriele's Statement shortly thereafter. Ms. Twinem wrote her own account of Gabriele's Statement. Ms. Twinem's account contained her thought that Ms. Gabriele was joking, but she (Ms. Twinem) did not "know how it [Gabriele's Statement] was interpreted by the students." Clearly, at that time, Ms. Twinem had concerns about what the students thought of Gabriele's Statement. Ms. Gabriele admitted to making Gabriele's Statement. At hearing, she testified that, at the time she made the statement, the students were working with their partners, and it was loud in the classroom. After a student had asked her the same question several times, Ms. Gabriele made Gabriele's Statement. Although Ms. Gabriele testified that she was not frustrated, mad or upset when she made the statement, that she just made the statement "off-the-cuff kind of thing," this is not credible. According to Ms. Gabriele, the student's question involved a long-standing classroom practice of the students placing their completed assignments in a pink bin. If the student was indeed asking or questioning this long-standing practice, it would be natural for some type of frustration or exasperation to be expected. Ms. Gabriele conceded that, even if Gabriele's Statement had been made in jest or in a joking manner, it was inappropriate. Also in February 2011, Principal Bennett had a specific complaint involving a parent's (E.B.) observation during a visit to Ms. Gabriele's classroom. With Ms. Gabriele's knowledge that she was in the classroom, E.B. had come to pick up her student and to search for some misplaced homework in the classroom. E.B. observed a female student (later identified by the initials N.A.) go to the front of the classroom where Ms. Gabriele was yelling at her. E.B. described Ms. Gabriele's actions as ". . . really reaming the kid, . . . And she just didn't seem like she was letting up, and the child was just very distraught." E.B. observed N.A. to be "really teary eyed . . . Not in a full cry, but looked like she would break down." E.B. thought Ms. Gabriele's behavior was "pretty harsh," loud in a real demanding way, and fierce. E.B testified that, had Ms. Gabriele been yelling at E.B.'s student, she "probably would have yanked her in the hall and had a few words." E.B. was appalled at Ms. Gabriele's behavior and reported her observation to Principal Bennett. As a result of her conversation with Principal Bennett, E.B. followed up with a letter to the principal detailing what she had witnessed in Ms. Gabriele's classroom, as well as other observations she had while chaperoning a school field trip with Ms. Gabriele's class. E.B. requested to be kept informed of what action was being taken and volunteered to be in the classroom when her scheduled permitted. Shortly thereafter, an OPS investigation was opened regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist in the OPS. Ms. Horne conducted an investigation of E.B.'s classroom observation and Gabriele's Statement by interviewing Ms. Twinem; 11 students from Ms. Gabriele's class, including N.A.; and Ms. Gabriele. Ms. Twinem and the students' statements were taken on February 18, 2011, making them almost contemporaneous with the events. During the OPS interviews with the 11 students, all 11 stated that Ms. Gabriele yells at the students, and one student said her yelling was "extreme." Five of the students stated Ms. Gabriele embarrassed them or other students by her actions; four stated Ms. Gabriele called students different names, such as "toads," "toadettes," "hillbilly," or "baby"; and three said she made them cry or other students cry. During her OPS interview, N.A. stated that Ms. Gabriele had made her cry and that it embarrassed her a lot. N.A. further stated that Ms. Gabriele yelled at her and other students a lot.2/ During Ms. Twinem's OPS interview regarding Gabriele's Statement, she described Ms. Gabriele as being frustrated and using a frustrated tone when it was spoken. At the hearing Ms. Twinem also testified that she thought Gabriele's Statement was made "out of frustration," but that it was "inappropriate" nonetheless. Ms. Gabriele's OPS interview occurred on March 17, 2011. Ms. Horne conducted the OPS interview and followed her standard procedures in telling Ms. Gabriele the substance of the investigation. Aside from being told what her rights and duties were regarding the investigation, Ms. Gabriele was also reminded of the School Board policy regarding her cooperation with the investigation and her responsibility to not interfere with it or communicate with any witnesses to the investigation. Ms. Gabriele's interview included questions about E.B.'s letter, including E.B.'s classroom observations, and Gabriele's Statement. Ms. Gabriele confirmed she was aware that E.B.'s letter was sent "downtown." Ms. Gabriele maintained that she thought the only issue in the initial investigation was E.B.'s letter. This position is thwarted when one reviews her OPS interview wherein Ms. Gabriele was questioned about both E.B.'s letter and Gabriele's Statement. Although during the OPS interview Ms. Gabriele stated she did not remember the incident with N.A. crying, she did admit that if E.B.'s recollection of the incident with N.A. was correct that she, Ms. Gabriele, could "have handled it differently" by calling the student off to the side to discuss the issue. Also, during the OPS interview, Ms. Gabriele admitted that Gabriele's Statement was inappropriate when made to a coworker in the presence of students. Ms. Gabriele received a copy of the School Board's initial OPS investigative report in April 2011. Within that report, and through Ms. Gabriele's testimony, she acknowledged receipt of that investigative file,3/ which included all the information obtained during the initial OPS investigation, including her own interview regarding E.B.'s letter and Gabriele's Statement. In Section III of the initial OPS investigative report (for E.B.'s letter and Gabriele's Statement) and through her hearing testimony, Ms. Horne detailed her standard routine with respect to the description given to each witness at the start of his/her interview. Further, Ms. Horne advised School Board employees of their obligation to cooperate with the investigation as well as the School Board's Policy 6.13.4/ Ms. Gabriele testified that she was aware of the policies. On Monday morning, April 18, 2011, when Ms. Twinem reported to Ms. Gabriele's classroom to sort papers and check homework, she was subjected to questions by Ms. Gabriele regarding whether or not Ms. Twinem had, in fact, reported Gabriele's Statement to Principal Bennett. Ms. Gabriele testified she found out that Ms. Twinem was upset or bothered by Gabriele's Statement during one of her meetings with Principal Bennett. However, neither her testimony nor Principal Bennett's testimony reflected upon any meeting between those two on that Monday morning or the week prior for Ms. Gabriele to make that connection. Further, as Ms. Gabriele testified, she "obviously" knew that Ms. Twinem was the person who reported Gabriele's Statement, as she was the only other adult in the classroom at the time it was uttered. Ms. Twinem testified that she felt like "a deer in the headlights" when Ms. Gabriele asked her about reporting Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that she had reported Gabriele's Statement to the principal "a long time ago." Ms. Twinem testified she was "anxious and nervous and like just didn't feel good" when Ms. Gabriele confronted her. Ms. Twinem reported this first encounter to Principal Bennett because she thought it should not have occurred. Later that same morning, Ms. Gabriele came into Ms. Twinem's office and told Ms. Twinem that she shouldn't tell anyone about their prior conversation because Ms. Gabriele could get in trouble. Ms. Twinem reported this second encounter to Principal Bennett. Still, later that same day when Ms. Twinem was in her office, Ms. Gabriele stood at the door and said that Ms. Twinem had gotten her (Ms. Gabriele) in trouble, because she had reported the second contact to the principal. Ms. Twinem reported this third contact to Principal Bennett. Principal Bennett testified that, after Ms. Twinem reported the first contact by Ms. Gabriele, he conferred with the OPS personnel as to what he should do. Based on direction from OPS, Principal Bennett hastily attempted to arrange a meeting with Ms. Gabriele to give her a verbal directive about contacting any witnesses involved with the investigation. Before the meeting could occur, Ms. Twinem reported that Ms. Gabriele had contacted her again. Prior to the third encounter, Principal Bennett issued a verbal directive to Ms. Gabriele about contacting any witnesses involved in the investigation. His directive included an admonishment "to cease and desist talking to the other employees about the OPS matter." Principal Bennett recounted that he told Ms. Gabriele that she was "not to talk to any other employees about the open investigation." Ms. Gabriele admitted she spoke with Ms. Twinem three times on April 18, 2011. Ms. Gabriele claimed that she did not understand who she could or could not talk to with respect to the investigation and that she only wanted to apologize for making Ms. Twinem upset about Gabriele's Statement. Ms. Gabriele admitted she knew it was Ms. Twinem who reported Gabriele's Statement to the principal. In the event Ms. Gabriele had questions about who she could or could not talk to, she had the opportunity to ask either Principal Bennett or Ms. Horne. Such dialogue apparently did not occur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Manatee County School Board enter a final order suspending Ms. Gabriele for 15 days without pay and returning her to an annual contract. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of December, 2011.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board since January 8, 2000. She is employed as a bookkeeper at Alva Middle School. She is governed by the collective bargaining agreement between the School Board and the Support Association of Lee County (SPLAC). The standard for the discipline of support personnel is "just cause" pursuant to Article 7 of the SPLAC Agreement. On or about November 24, 2010, Ms. Williams was charged with 33 felony counts of Fraud and Concealing Information to obtain prescriptions pursuant to section 893.17(7)(a)8., Florida Statutes. Ms. Williams timely notified the School District of her arrest. On December 21, 2010, the Office of the State Attorney, Twentieth Judicial Circuit of Florida (State Attorney), elected not to prosecute Ms. Williams for 27 of the 33 charges and formally charged Ms. Williams by criminal information with five felonies for withholding information from a practitioner pursuant to section 893.17(7)(a)8. On January 13, 2011, Ms. Williams entered into a Pretrial Diversion Program contract for a period of not less than six months and not more than 18 months. In the agreement, Ms. Williams agreed to certain conditions including, but not limited to, reporting to a probation officer, submission to drug testing, and the completion of 20 hours of community service. Upon Ms. Williams's successful completion of the Pretrial Diversion Program agreement, the State Attorney agreed to drop the charges and dismiss the Information. On November 30, 2010, Ms. Williams was suspended with pay and benefits, pending the outcome of the School District's investigation into the alleged misconduct. In accordance with provision 7.10 of the SPLAC Agreement, a predetermination conference for Ms. Williams was scheduled for March 3, 2011. Ms. Williams attended the predetermination conference, accompanied by her union-retained attorney, Robert Coleman. Ms. Williams was advised that the purpose of the predetermination conference was to give her an opportunity to respond to the allegations. On March 10, 2011, the School District concluded its investigation. It determined that Ms. Williams's employment should be terminated pursuant to School Board Policy 5.04 due to Ms. Williams having committed a disqualifying offense enumerated under chapter 435, Florida Statutes; violation of School Board Policy 5.02, Ethical Standards, by failing to adhere to the highest ethical standards expected of all School District employees; violation of School Board Policy 5.03, General Requirements for Appointment and Employment, which requires that an employee be of good moral character; and violation of School Board Policy 5.29, Complaints Relating to Employees, by failing to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Ms. Williams from employment without pay effective April 19, 2011, with such suspension to continue until the State Attorney has dismissed the felony drug offenses against Ms. Williams; providing that Ms. Williams be reinstated to her position immediately upon the expiration of the suspension period; providing that, if Ms. Williams is prosecuted for and convicted of, or pleads guilty (or nolo contendere) to the pending charges as a result of her failing to successfully complete the Pretrial Diversion Program, she will be discharged from her employment; and finding that Ms. Williams has not violated School Board Policies 5.02, 5.03, and 5.29. DONE AND ENTERED this 1st day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2011.
The Issue The issue to be determined is whether Rule 6GX37-2.02(5)(a), Rules of School Board of Leon County, Florida, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Petitioner is the Superintendent of Schools for Leon County, Florida, having been elected to this office in 1988. The Respondent is the School Board of Leon County. The Superintendent has the authorization and statutory duty to recommend positions to be filled and to nominate persons to the Board for appointment to positions in the Leon County School System. The School Board annually determines the number of instructional positions for which the Superintendent is authorized to bring nominations. The Superintendent prepares his personnel plan before the school year commences. Once the year commences and positions are budgeted and operational, plans are developed and implemented with personnel who occupy these positions. Historically, the Superintendent notifies the incumbent holding an administrative position two to three weeks prior to the statutory date on which certain nominations must be made as to whether such person would be renominated. The Superintendent has previously brought nominations to the Board for approved positions past the statutory deadline. The Superintendent has previously requested an extension of time from the Board within which to bring a nomination for an administrative position. At no time has the Board denied a request by the Superintendent to extend the date upon which nominations could be made. The Superintendent has previously recommended to the Board that certain approved jobs not be filled and the Board has agreed to such action every time. The Board has never attempted to fill such positions on its own motion. The Board may properly abolish a position which becomes vacant by reason of the incumbent's death, resignation, retirement, promotion, demotion or transfer. There is no specific statutory deadline by which the Superintendent must bring a nomination for a newly approved position. The rule applies to pay grade positions in which only one person occupies a single position. These positions include the Superintendent's immediate staff. The rule applies to supervisor positions. Principals, assistant principals and teacher positions are not embraced by the rule. The rule requires that the Superintendent request and obtain the consent of the Board prior to the submission of nominations on an annual basis. The Superintendent is granted statutory authority to enter into contracts with supervisors for periods not to exceed 3 years. Section 231.36(1)(b), Florida Statutes. The rule does not require the Superintendent to wait until a certain date within which to seek the Board's consent to bring a nomination and the Superintendent could seek such consent months ahead of the statutory deadline for him to bring nominations for such positions. The Superintendent could forward an employee's resignation for action by the Board and request the Board's consent to bring a nomination to fill such a position at the same meeting. The Board has the sole authority to create employee positions and to abolish such positions. The rule at issue does not contain any definitions, guidelines, or standards by which the Board will exercise its discretion to grant or to deny "consent." The rule does not provide any time frame for action by the Board on the Superintendent's request for consent to tender the nomination of a person to fill a position embraced by the rule. The Superintendent and his staff were consulted prior to the adoption of the rule and were consulted with regard to the decision to place the newly adopted rule in Section (5)(a) of Rule 6GX37-2.02, Rules of the School Board of Leon County. The Superintendent has failed to prove, by a preponderance of the evidence, that the placement of the rule results in confusion such that the rule is invalid based on statutory grounds of vagueness. The Superintendent has failed to prove, by a preponderance of the evidence, that there has been any collusion among Board members in adopting the rule or that reasons given by the Board for adopting the rule are false. The Superintendent was present at the School Board meeting on September 18, 1990, when the development of the rule was first discussed. The Superintendent was also present at the Board meeting on February 12, 1991, when the rule was adopted. The Superintendent failed to prove that the challenged rule was adopted by the Board without consideration of his recommendations as required by Section 230.22(2), Florida Statutes.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Respondent's proposed rule 6GX37-2.02(5)(a) is an invalid exercise of delegated legislative authority. DONE and ORDERED this 22nd day of May, 1991, at Tallahassee, Florida. JAMES W. YORK, 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 22nd day of May, 1991. APPENDIX TO FINAL ORDER PETITIONER'S PROPOSED FINDINGS OF FACT The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, William M. Woolley: Petitioner's proposed finding of fact number 1 is adopted in material part in the Final Order. Petitioner's proposed findings of fact numbered 2 and 3 are subordinate and not necessary to the conclusions reached. Petitioner's proposed finding of fact number 4 is adopted in the Final Order. Petitioner's proposed finding of fact number 5 is adopted in material part in the Final Order. The first sentence of proposed finding of fact number 5 is argument which is addressed in the conclusions of law. Petitioner's proposed finding of fact number 6 is subordinate and not necessary to the conclusions reached. Petitioner's proposed findings of fact numbered 7 and 8 are adopted in material part in the Final Order. Petitioner's proposed finding of fact number 9 is rejected as argument addressed in material part in the conclusions of law. Petitioner's proposed finding of fact number 10 is rejected as essentially argument. Petitioner's proposed finding of fact number 11 is adopted in material part in the Final Order. Petitioner's proposed finding of fact number 12 is subordinate and not necessary to the conclusions reached. RESPONDENT'S PROPOSED FINDINGS OF FACT The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent, School Board of Leon County: Respondent's proposed findings of fact numbered 1-4 are adopted in the Final Order. Respondent's proposed finding of fact number 5 is a correct reflection of the testimony. Mr. Woolley's opinion in this regard is not relevant or necessary to the conclusions reached. Respondent's proposed findings of fact numbered 6-8 are adopted in the Final Order. Respondent's proposed finding of fact number 9 is accepted but not material or necessary to the conclusions reached. Respondent's proposed findings of fact numbered 10-17 are adopted in material part in the Final Order. Respondent's proposed findings of fact numbered 18-20 are accepted but are not necessary to the conclusions reached. Respondent's proposed finding of fact number 21 is adopted in the Final Order. Respondent's proposed findings of fact numbered 22-27 are rejected as irrelevant. COPIES FURNISHED: John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
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.
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Ms. Woods was employed as a paraprofessional with the School Board. At the time of hearing, Ms. Woods had been a paraprofessional with the School Board for 19 years. No dispute exists that, at all times material hereto, Ms. Woods was a member of the United Teachers of Dade (UTD) and was subject to the terms and conditions of the collective bargaining agreement between UTD and the Miami-Dade County Public Schools (UTD Contract). At all times material hereto, Ms. Woods was assigned as a paraprofessional to Robert Renick Education Center (Robert Renick). She was assigned to assist Alexander Phillips, who is an exceptional student education (ESE) teacher, in an ESE class. Robert Renick is a school for ESE students. All of the students are emotionally, behaviorally disturbed, and some have additional disabilities. They are dually diagnosed with autism and as educable mentally handicapped and trainable mentally handicapped. Since the 2004-2005 school year, Fred Clermont has been employed at Robert Renick as an ESE teacher. Prior to October 18, 2007, one of Mr. Clermont’s students had hit one of the staff members at Robert Renick. Mr. Clermont testified that, after the incident, Ms. Woods told him that, if one of his students ever hit her, she would “fuck [him (Mr. Clermont)] up.” Mr. Clermont’s testimony is found to be credible. On October 18, 2007, at the time of school dismissal for Robert Renick, Mr. Clermont was escorting one of his students, A. F., who was nonverbal, to the flagpole, a common area for students, whose bus was late, to wait. Because the student was hitting himself and Mr. Clermont and was spitting and kicking, Mr. Clermont shouted for everyone to move back and clear a path through which he (Mr. Clermont) could bring the student. Students and staff were moving out of the way; however, Ms. Woods did not. A. F. struck Ms. Woods in the back or shoulder area. Mr. Clermont testified that Ms. Woods turned around, pushing A. F. to the ground, and struck him (Mr. Clermont) in the chest. Mr. Clermont immediately apologized to Ms. Woods for A. F. hitting her. Mr. Clermont testified that Ms. Woods responded to his apology by shouting obscenities at him and reminding him of what she told him earlier as to what she would do if one of his students ever hit her. Mr. Clermont’s testimony is found to be credible. The student, A. F., became further upset, got out of his harness, and struck another staff member, David Jefferson, Dean of Discipline. Mr. Clermont and Mr. Jefferson were able to bring A. F. under control by holding him down and calming him. Mr. Clermont further testified that, as he was getting up from holding A. F. down, he (Mr. Clermont) was hit on the side of his face by Ms. Wood; that the blow knocked his (Mr. Clermont’s) sunglasses off his face and one of his contact lens out of his eye; and that Ms. Woods was shouting obscenities at him (Mr. Clermont)—“Yeah, mother fucker, I told you I would hit your mother fucking ass. I told you, bitch . . . .” Additionally, Mr. Clermont testified that Ms. Woods looked at her cellular telephone and declared that they were off the clock and he (Mr. Clermont) was going to get his “ass whupped now”; and that she kicked-off her shoes and earrings and lunged at him, only to be held back by Mr. Phillips. A. F. was later placed safely on his bus. Mr. Clermont’s testimony is found to be credible. Mr. Jefferson testified at the hearing. He testified that, when Mr. Clermont requested persons to move and make a path through which he (Mr. Clermont) could bring A. F., Ms. Woods stated that she was not moving and that, if that “retarded mother fucker hit me, I’m going to hit your punk ass”— referring to Mr. Clermont. Mr. Jefferson further testified that he witnessed Ms. Woods punch Mr. Clermont in the chest and that Mr. Clermont apologized to Ms. Woods. Additionally, Mr. Jefferson testified that, after he and Mr. Clermont were able to restrain A. F., Ms. Woods hit Mr. Clermont in the face, knocking his (Mr. Clermont’s) sunglasses off; that Ms. Woods looked at her cellular telephone and indicated the time, as no longer being within the work day; that Ms. Woods kicked-off her shoes and removed her earrings; and that Ms. Woods was restrained by Mr. Phillips. Mr. Jefferson did not testify that he observed Ms. Woods strike or push the student. Mr. Jefferson’s testimony is found to be credible. Mr. Phillips testified at hearing. At the time of the incident on October 18, 2007, he was standing next to Ms. Woods. He testified that he observed Ms. Woods strike Mr. Clermont twice, look at her watch, indicating that the work day had ended, and kick-off her shoes. Mr. Phillips further testified that he grabbed Ms. Woods because she was a good paraprofessional and he did not want to get into trouble. Mr. Phillips did not testify that he observed Ms. Woods strike or push the student. Mr. Phillips testimony is found to be credible. Bernadette Adams, a paraprofessional at Robert Renick, testified at the hearing. She was also standing next to Ms. Woods at the time of the incident on October 18, 2007. Ms. Adams testified that she did not observe Ms. Woods push or strike the student. Ms. Adams also testified that she heard Ms. Woods express to Mr. Clermont that she (Ms. Woods) told him would happen if the “autie mother fucker . . . .” hit her and that she (Ms. Woods) was going to “hit [his] punk ass.” Further, Ms. Adams testified that she observed Ms. Woods’ arm come down, kick off her shoes, and indicate to Mr. Clermont that they were off the clock. Furthermore, Ms. Adams testified that Mr. Clermont responded to Ms. Woods by asking Ms. Woods whether she (Ms. Woods) was “fucking crazy.” Ms. Adams left the scene of the incident. Ms. Adams’ testimony is found to be credible. Shayon Tresvant, the indoor suspension teacher at Robert Renick, testified at the hearing. At the time of the incident on October 18, 2007, he was assisting with dismissal and was approximately 10 or 11 feet from Mr. Clermont and Ms. Woods. Mr. Tresvant did not observe Ms. Woods strike or push the student; however, he did observe Ms. Woods acting in an aggressive manner towards Mr. Clermont. Additionally, Mr. Tresvant heard Mr. Clermont ask Ms. Woods why she had hit him (Mr. Clermont) and Ms. Woods mention the timeframe or the time of the day. Mr. Tresvant testimony is found to be credible. Ms. Woods testified at hearing. She admits that she observed Mr. Clermont having problems controlling and calming down student A. F. Ms. Woods testified that she felt a punch or hit to her arm and turned around and, in turning around, that she may have struck the student, but, that, if she did, it was not intentional. Taking into consideration the testimony of other witnesses at hearing, Ms. Woods’ testimony, regarding the striking of A. F., is found to be credible. The evidence demonstrates that Ms. Woods did not intentionally strike the student A. F. Further, Ms. Woods testified that she requested Mr. Clermont to get the student under control and that she observed Mr. Clermont laughing. As a result, Ms. Woods testified that she concluded that Mr. Clermont was joking with her and playfully punched him and told him to “stop playing.” Ms. Woods’ testimony is not found to be credible. Additionally, Ms. Woods testified that, after Mr. Clermont and Mr. Jefferson got the student under control and on the bus, she (Ms. Woods’) touched Mr. Clermont’s neck in a playful manner and that Mr. Clermont began screaming and cursing at her. Ms. Woods testified that she vocally objected to Mr. Clermont raising his voice to her, looked at her watch and indicated that they were not off work until 3:50 p.m., and told Mr. Clermont not to “play with her.” Also, Ms. Woods testified that, at no time, did she intentionally strike Mr. Clermont. Ms. Woods’ testimony is not found to be credible. The evidence demonstrates that Ms. Woods intentionally struck Mr. Clermont. After placing the student A. F. on the bus, Mr. Clermont reported the incident with Ms. Woods to the principal of Robert Renick, Allison Harley, Ed.D. While reporting the incident to Dr. Harley, Mr. Clermont was highly emotional, distraught, and “crying.” At that time, Mr. Clermont was not certain of the action that he wanted to take. The following day, October 19, 2007, Mr. Clermont indicated to Dr. Harley that he wanted to report the incident to the school police. He prepared a written statement, which was witnessed by Dr. Harley. On October 19, 2007, Mr. Clermont was referred to a Workers’ Compensation physician. Mr. Clermont was diagnosed with a skull contusion. On October 19, 2007, Mr. Clermont made a formal complaint to the school police. The procedure for employee investigations is set forth in the School Board’s Personnel Investigative Model (PIM), which has been adopted by the UTD. Pursuant to the PIM, once an allegation is made, the site administrator (here, the principal, Dr. Harley) contacts the school police. Additionally, the accused employee is notified verbally of allegations within 24 hours and in writing within 48 hours. Further, pursuant to the PIM, as to investigations which may lead to suspension or dismissal of an employee, only the Superintendent or the Superintendent’s designee may authorize the investigation. When an officer of the school police is assigned to investigate the allegation(s), the officer meets with the complainant, interviews witnesses, and generates a report, referred to as a lead sheet. For a criminal allegation, the school police’s General Investigative Unit (GIU) maintains the lead sheet, conducts the investigation, and presents the lead sheet to the State Attorney’s Office. At the conclusion of the investigation, the accused employee is notified of the outcome of the investigation; forwarded a copy of the investigative report; advised of his or her right to request a supplemental report; and given five days to file written exceptions, which could possibly change the outcome of the investigation. On October 19, 2007, when the incident was reported to the school police and which was a Friday, Dr. Harley was not able to verbally notify Ms. Woods because Ms. Woods was not at Robert Renick; she was absent. On Monday, October 22, 2007, Dr. Harley notified Ms. Woods verbally of the allegations. By letter, dated October 22, 2007, Dr. Harley notified Ms. Woods in writing of the allegations, identifying, among other things, the case number, the complainant, and the nature of the complaint, which was “simple battery.” By her signature, Ms. Woods acknowledged that she received the written notice; and by dating the written notice, indicated that she (Ms. Woods) received the written notice on October 23, 2007. Pending the outcome of the investigation, Ms. Woods was removed from Robert Renick. She was placed on paid administrative placement in an alternate assignment at FDLRS- South. Detective Rafael Gomez was assigned to and did conduct the investigation regarding the complaint against Ms. Woods. The Superintendent’s designee who authorizes investigations which may lead to suspension or dismissal of an employee is the Assistant Superintendent for the Office of Professional Standards (OPS). The lead sheet indicates that Officer Michael Alexander assigned the investigation to Detective Gomez and authorized Detective Gomez to perform the investigation. By letter dated October 26, 2007, the School Police notified Ms. Woods, among other things, that a criminal investigation was being conducted, that the complainant was Mr. Clermont, that the nature of the complaint was “Battery on [a] School Employee,” and that she would have an opportunity to provide a formal statement, but that she had a right to decline to give a formal statement. Ms. Woods declined to give a formal statement on the advice of counsel. Having completed the investigation, Detective Gomez determined that probable cause existed to support the allegation that Ms. Woods violated School Board Rules 6Gx13-5D-1.07, Corporal Punishment-Prohibited and 6Gx13-4-1.08, Violence in the Workplace. The investigative report was submitted by GIU to OPS. By letter dated November 9, 2007, OPS notified Ms. Woods, among other things, that probable cause was found as a result of the investigation, simultaneously providing a copy of the investigative report, and that she had an opportunity, within five days to submit written exceptions. Ms. Woods acknowledged receipt of the letter on November 13, 2007, by signing and dating the letter. Subsequently, a conference-for-the-record (CFR) is held with the affected employee by OPS to provide an opportunity for the employee to respond to allegations. At the conclusion of the CFR, the affected employee is informed that the case will be presented to the Assistant Superintendent of OPS and the employee’s site supervisors to obtain a recommendation for disciplinary action. A summary of the CFR is forwarded to the affected employee and the affected employee is advised within the summary that he/she has a right to append any additional information that was not included in the summary. Prior to School Board action, a meeting is held with the affected employee, during which he/she is verbally notified of the recommended disciplinary action and of his/her right to request a hearing after the School Board takes official action. On December 7, 2007, a CFR was held with Ms. Woods by OPS to discuss the finding of probable cause and her future employment with the School Board. In addition to Ms. Woods, attendees at the CFR included, among others, Ana Rasco, Ed.D., Administrative Director of OPS; Will Gordillo, Assistant Superintendent, Division of Special Education; Sonja Clay, Executive Director, Division of Special Education; Dr. Harley; and members of UTD, Sherri Daniels, UTD Union Representative, and Joy Jackson, UTD Steward, Robert Renick. During the CFR, Ms. Woods stated that she did not intend to strike the student A. F., and that she was attempting to avoid being struck by A. F. when she allegedly struck him. Additionally, during the CFR, Ms. Woods was provided information regarding the options of resignation or retirement, but she declined to exercise either one of the options. At the conclusion of the CFR, the recommendation was to terminate Ms. Woods. A summary of the CFR was prepared and a copy was provided to Ms. Woods. Even though Dr. Harley had written favorable recommendations on Ms. Woods’ behalf prior to the incident, she (Dr. Harley) still agreed with the recommendation made at the CFR meeting. Dr. Harley testified at hearing that no such incident had occurred at the time that she wrote the recommendations; that violence in the workplace could not be tolerated; that staff was teaching children not to be aggressive; and that staff must exhibit what they teach. Dr. Harley’s testimony is found to be credible. By memorandum dated January 29, 2008, Maria Rojas, Associate Superintendent of OPS, advised Dr. Rudolph Crew, Superintendent of Schools, among other things, of the allegations, the investigation, and the finding of probable cause. Ms. Rojas’ recommendation was to suspend Ms. Woods employment with the School Board, without pay, and to begin dismissal proceedings against Ms. Woods, effective at the close of the workday on March 12, 2008. By memorandum dated February 22, 2008, Ms. Woods was directed to attend a meeting at OPS on February 26, 2008, to address the recommendation to be made at the School Board meeting on March 12, 2008. She was notified at the meeting on February 26, 2008, that termination of her employment would be recommended at the School Board meeting. By letter dated February 27, 2008, Ms. Woods was provided written notification that, at the School Board meeting on March 12, 2008, the Superintendent of Schools would recommend suspension, without pay, and the initiation of dismissal proceedings against her for just cause for, not only the two original violations, but, also, for violating School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. OPS prepared an agenda School Board item for the School Board meeting being held on March 12, 2008, regarding the recommended action against Ms. Woods. The agenda item, among other things, quoted verbatim the information contained in the letter dated February 27, 2008. OPS did not provide Ms. Woods a copy of the agenda item. The standard operating procedure of OPS is to not provide a copy of such agenda item to the affected employee. At its meeting on March 12, 2008, the School Board accepted the recommendation and took action to suspend Ms. Woods and to initiate dismissal proceedings against her from all employment with it. The School Board’s decision was based upon the violations set forth in the agenda item. Ms. Woods timely protested the action taken by the School Board and requested an administrative hearing. On May 5, 2008, the School Board filed in the instant matter a Notice of Specific Charges. Ms. Woods was served a copy of the Notice of Specific Charges. As a result of the allegations against Ms. Woods, she was arrested. She was charged with one felony and two misdemeanors, but, at the time of the CFR, only one misdemeanor remained, with “no action” being taken on the other charges. Ms. Woods pled no contest to the remaining misdemeanor charge, with the court, among other things, withholding adjudication and placing her on probation. Additionally, the court entered a Stay Away Order, Non-Domestic Violence against Ms. Woods on behalf of Mr. Clermont and the student A. F. Ms. Woods has not been the subject of prior disciplinary action by the School Board. The evidence demonstrates that, prior to the incident on October 18, 2007, Ms. Woods was perceived by the principal and assistant principal at Robert Renick as an outstanding and effective paraprofessional. The evidence also demonstrates that, prior to the incident on October 18, 2007, Ms. Woods had never been engaged in physical contact with a student or co-worker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Monique S. Woods without pay from March 12, 2008, through the end of the 2008-2009 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 30th day of April 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2009.
