The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue 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 Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate his employment.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent is now, and has been since 1986, employed by the School Board as a Data Input Specialist II. Prior to the effective date of his suspension pending the outcome of the instant dismissal proceeding (that is, prior to the close of business on June 21, 2000), Respondent was assigned to the D. A. Dorsey Educational Center (Dorsey), an adult education center. His suspension pending the outcome of the instant dismissal proceeding is the only disciplinary action that has been taken against him in the approximately 15 years he has worked for the School Board. In discharging his duties as a Data Input Specialist II at Dorsey, Respondent was not responsible for supervising students, nor did he have reason to be with them alone. As a noninstructional employee of the School Board occupying a Data Input Specialist II position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract), effective from July 1, 1999, to June 30, 2002. Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." It provides, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the 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 by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent has a seven-year-old daughter, J. Since his wife passed away in 1994, he has raised J. as a single parent. Four years ago, Respondent opened his home to a 13- year-old boy, D. J. J., whose family had been evicted from the apartment in which they had been living. D. J. J.'s stepmother had just died and his father was unable to properly care for him. From the time that D. J. J. first became a member of Respondent's household until the incident that is the focus of the instant case (Subject Incident), Respondent treated D. J. J. like a son. D. J. J., however, did not always reciprocate and act like a dutiful son. At times, he was rude and disrespectful toward Respondent and refused to follow Respondent's instructions. On three or four occasions prior to the Subject Incident, he even used physical force against Respondent. Respondent responded to these physical attacks, not by hitting D. J. J. back, but with words designed to impress upon D. J. J. that he needed to act appropriately and respect Respondent. While Respondent's words may not have had any long-lasting impact on D. J. J., by talking to D. J. J., Respondent was able to resolve the situation without the use of any force. D. J. J. was also physically aggressive toward Respondent's sister, Sara Payne, and Respondent's niece, Shara Payne. On one occasion, during a visit to Sara's home, D. J. J. asked Sara "to have sex with him." When Sara attempted to get D. J. J. to leave, he refused and grabbed Sara by the arms. Sara, however, was able to free her arms from D. J. J.'s grasp and push D. J. J. out the door. Sara reported to Respondent, prior to the Subject Incident, what had happened during D. J. J.'s visit. Respondent was also made aware, prior to the Subject Incident, of an instance where D. J. J. had walked into his niece's, Shara's, classroom at Miami Northwestern High School, demanded that she leave with him, and, when she refused, pulled her by arm, until a teacher intervened by calling school security. There is no indication that either Sara or Shara suffered any injuries as a result of the above-described incidents. The Subject Incident occurred on September 8, 1999. On that date, D. J. J. was 16 years of age, stood approximately five feet, two inches tall, weighed 160 pounds, 1/ and had a muscular build. Respondent was approximately 25 years older, 13 inches taller, and 40 pounds heavier than D. J. J. Upon returning home from work on September 8, 1999, Respondent reprimanded D. J. J. for not having done his chores around the house. D. J. J., in turn, without saying anything, picked up his house key and headed to the front door "as if he was going to leave." When he saw D. J. J. walking toward the door, Respondent asked D. J. J. for the house key. D. J. J. ignored Respondent's request. He continued walking, silently, toward the door. Respondent followed D. J. J., "sticking close to [D. J. J.] because [Respondent] didn't know [D. J. J.'s] intention." As Respondent repeated his request that D. J. J. hand him the key, D. J. J. went into the kitchen, took a hammer, laid the key down on the counter, and struck the key with the hammer with sufficient force to bend the key. D. J. J. then threw the key to the floor, moved toward Respondent, and struck Respondent in the jaw with a closed fist. After punching Respondent, D. J. J. walked into the living room and picked up a key chain containing Respondent's house and car keys. (Respondent did not have another key to the house.) The front door was locked from the inside 2/ and therefore D. J. J., if he wanted to exit the house (by conventional means), needed the house key to unlock the front door. (All of the house's windows, except for the "safety window," had bars on them, and the safety window was locked, with no key readily available to unlock it.) Concerned that he and his daughter (who was also in the house at the time) might be locked in the apartment if D. J. J. left with the house key, 3/ Respondent repeatedly requested that D. J. J. give him back his keys. Without saying a word, D. J. J. walked into his bedroom and sat down on his bed. Respondent followed him, demanding that D. J. J. return the keys. He told D. J. J., "you can leave and it won't be no trouble, just give me the keys." Maintaining his silence, D. J. J. stood up and started walking toward the bedroom door where Respondent was standing. As D. J. J. approached Respondent, 4/ Respondent took a hot (plugged-in and turned-on) iron that was on a nearby ironing board in the bedroom and struck D. J. J. with the iron in the face, thereby bruising and burning the side of D. J. J.'s face. A scuffle ensued, with D. J. J. trying to take the iron away from Respondent. During the scuffle, Respondent was burned on the leg by the iron, as it fell to the floor. D. J. J. then exited his bedroom and walked into the hallway, with Respondent following behind him. 5/ The hammer that D. J. J. had used to bend his house key was in the hallway. Respondent picked the hammer up and hit D. J. J. on the back of head with it. Neither Respondent's hitting D. J. J. on the back of the head with the hammer, nor Respondent's striking D. J. J. on the side of the face with the hot iron, was reasonably necessary to protect Respondent or his daughter against D. J. J. or to further any other legitimate purpose. Bleeding from the head wounds Respondent had inflicted, D. J. J. went to the telephone that was in the hallway and called the police, who shortly thereafter arrived on the scene. After speaking with D. J. J. and Respondent, and then examining D. J. J.'s injuries, the police placed Respondent under arrest for "aggravated child abuse." The police waited until Respondent's sister, Tatiana (who had agreed to care for J. in Respondent's absence), arrived at the house before transporting Respondent from the scene. Respondent spent the night in jail. The following day, September 8, 1999, Respondent was released pursuant to an Order of Pretrial Release Conditions, which, among other things, prohibited Respondent "from having any contact with" D. J. J. and required Respondent to "stay at least 500 feet away from [D. J. J.], [D. J. J.'s] home, place of employment and/or school at all times." On October 18, 1999, the State Attorney's Office filed, in Miami-Dade County Circuit Court Case No. 99-30932, an "information for aggravated child abuse" against Respondent alleging the following: GREGORY PAYNE, on or about SEPTEMBER 8, 1999, in the County [of Miami-Dade] and [the] State [of Florida], did unlawfully feloniously commit an aggravated battery upon D. J. J., a child of sixteen (16) years of age, by HITTING HIM IN THE HEAD WITH A HAMMER AND BY PLACING A HOT IRON ON HIS FACE, and during the commission of such felony the defendant committed an aggravated battery in violation of s.827.03(1), Fla. Stat., 6/ contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. That same day, Respondent was arrested and taken into custody for violating the requirement of the September 8, 1999, Order of Pretrial Release Conditions that he "stay away" from D. J. J. Respondent remained in jail until October 26, 1999. On that date, Respondent entered a plea of guilty to the "aggravated child abuse" charge filed in Miami-Dade County Circuit Court Case No. 99-30932, after having discussed the matter with his attorney and determined that it was in his best interest to enter such a plea. Respondent was thereafter adjudicated guilty of the crime and ordered to serve one year of community control, followed by one year of probation, during which he was required to "enter and successfully complete the Anger Control Program." 7/ The School Board learned of Respondent's "aggravated child abuse" conviction through a records check (Records Check E-02988). A conference-for-the-record with Respondent was held on February 23, 2000, "to address Records Check E-02988 concerning Aggravated Child Abuse, noncompliance with School Board policy and rules regarding Employee Conduct, a review of the record, and [Respondent's] future employment status with Miami-Dade County Public Schools." At the conference, Respondent was provided a copy of the records check findings and provided the opportunity, of which he took advantage, to "respond to the allegation that [he] 'w[as] arrested and later convicted of Aggravated Child Abuse.'" After doing so, he was advised that further review of the matter would be undertaken and that he would remain in his current assignment pending the outcome of such further review, provided he did the following: Remain in control of [him]self at all times and, specifically, during work hours. Comply with School Board Rule 6Gx13-4A- 1.21, Employee Conduct, a copy of which was provided to [him]. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21(I), Employee Conduct, has provided as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. A pre-dismissal conference-for-the-record was held with Respondent on May 19, 2000. At the conference, Respondent was told that a recommendation for his dismissal would be made based upon the following charges: Just cause, including but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. The Superintendent of Schools subsequently made such a recommendation to the School Board. At its June 21, 2000, meeting, the School Board suspended Respondent and initiated a proceeding to terminate his employment "for just cause, including, but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Respondent formally appealed his proposed termination pursuant to Article XXI, Section 3F. of the Union Contract, and the School Board subsequently referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a hearing on the appeal. Prior to the hearing, the School Board filed and served on Respondent a Notice of Specific Charges, as required by Article XXI, Section 3F. of the Union Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through III of the Notice of Specific Charges. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
Findings Of Fact The Respondent is the governing body of the Jackson County School District, and maintains its office in Marianna, Jackson County, Florida., The Respondent is engaged in the business of operating a school system. The Respondent is a public employer. The JCEA is an employee organization. On or about June 16, 1975, the Public Employees Relations Commission, in Case No. 8H-RC-754-1084, certified the JCEA as the exclusive bargaining representative of certified instructional personnel who are employed halftime or more by the Respondent in specific job categories. After lengthy contract negotiations, which began in August of 1975, a collective bargaining agreement was executed by the School Board and the JCEA on February 2, 1976. A copy of the agreement was received in evidence as General Counsel's Exhibit 1. On February 12, 1976& the JCEA filed an unfair labor practice charge against the School Board with the Public Employees Relations Commission. On February 20, 1976, the JCEA filed written grievances pursuant to Article III of the Collective Bargaining Agreement. The matters raised in the grievances are substantially the same as those raised in the unfair labor practice charge. In accordance with the provisions of the Collective Bargaining Agreement, implementation of the agreement was to be completed by February 16, 1976. During the period just prior to and just following February 16, the Respondent, through its agents, implemented numerous unilateral changes in policies. Prior to August, 1975, members of the collective bargaining unit at Marianna High School were not required to sign in at the beginning of the work day, or to sign out at the end of the work day. During August, 1976, new sign in and sign out procedures were implemented. The procedures applied only to members of the unit. On February 16, 1976, a time clock system was implemented at Marianna High. The system was implemented in accordance with "Memorandum #10", dated February 9, 1976. The memorandum was received in evidence as General Counsel's Exhibit 2. Members of the bargaining unit were required under the new policy to "clock in" on the time clock at the beginning of the work day, and to "clock out" at the completion of the work day. It was announced that failure to clock in and out would constitute grounds for dismissal. The principal at Marianna High School testified that the Collective Bargaining Agreement required more accurate time records, and that the time clock system was instituted in order that more accurate records could be kept. Article IV, Sections 4.2 and 4.3 of the Agreement were cited. Section 4.2 provides as follows: "The teacher's work day shall be seven (7) hours and fifty (50) minutes, during which each teacher shall be provided a duty-free lunch period on campus of not less than twenty-five (25) minutes. The principal of each school shall set the beginning and ending time of the work day. Teachers must have the prior approval of the principal or his designee before they leave school during working hours. Loss of time during the workday shall be covered by approved leave, loss of pay, or compensatory time." Section 4.3 provides as follows: "The principals may assign teachers extra duty which shall be restricted to supervising students on campus before and after school. The principal may also select from volunteers, teachers to supervise students at lunch. Compensatory time, equal to the extra duty time, shall be given teachers serving extra duty and lunch supervision, provided however, compensatory time shall not be given during the student day." Prior to the implementation of the Collective Bargaining Agreement, employees within the bargaining unit were not paid extra duty time. The principal at Marianna High School testified that the precise delineation of the work day, and the entitlement to extra duty pay necessitated the more accurate record keeping. This explanation is inadequate. In the first place, in order to be entitled to extra duty compensation, the principal would have to assign the extra duty. The extra duties could include supervising students on campus before and after school, and during lunch. These sorts of extra duty are not such as would permit great variances in time. It is difficult to perceive why more accurate time keeping procedures were required. Indeed, as to extra duty during the lunch period, the time clock system would be of no assistance whatever. If more accurate time keeping was necessary at Marianna High School, it would have been just as necessary prior to implementation of the Collective Bargaining Agreement. Non-instructional employees of Marianna High School have not formed a collective bargaining unit. Any of these employees are compensated on an hourly basis, and are entitled to more or less compensation depending upon the hours they work. Accurate time records are as necessary for this group of employees as for employees within the bargaining unit; however, the time clock system applied only to employees within the bargaining unit. The time clock system was not the only new policy implemented at Marianna High School to coincide with implementation of the Collective bargaining Agreement. Teachers had been permitted prior to the adoption of the contract, to leave school early for doctors appointments, or to serve civic functions, without the necessity of taking any leave time. Subsequent to the adoption of the contract, if a teacher left more than ten minutes early, he or she would be required to take a minimum of one hour leave time. On or about February 16, 1976, teachers were instructed to stand outside of their classroom from 7:45 A.M. until 8:00 A.M. to supervise students coming into their classroom. Although teachers had previously been required to supervise students coming into their classroom, they were not required to stand outside of their classroom. Prior to implementation of the Collective Bargaining Agreement teachers were permitted to use the teacher's lounge for a planning period. As of February 16, teachers were not permitted to use the lounge for their planning period. The principal at Marianna High School testified that this was necessary in order that he would know where the teachers were since the planning period was to be used for parent consultations in accordance with the Collective Bargaining Agreement. The testimony clearly revealed, however, that the planning period had been used for parent conferences prior to the adoption of the contract. Insofar as limiting the locations for the planning period was necessary, it was as necessary prior to adoption of the contract as subsequent to it. During the course of negotiations, the principal at Marianna High School had expressed a hostile attitude toward the collective bargaining process. None of the new policies set out above were discussed during the course of the negotiations. Each of the new policies was more restrictive than had been the case prior to collective bargaining. The timing of implementation of the policies to coincide with implementation of the agreement, the fact that the policies applied only to personnel within the bargaining unit, the fact that a hostile attitude toward collective bargaining had been expressed, and the lack of any other reasonable explanation for the policies lead inescapably to the conclusion that the new policies were implemented in order to dramatize to members of the collective bargaining unit that resort to the bargaining process would result in more restrictive supervision by the employer. The new policies were implemented for the purpose of discouraging membership in the JCEA, and to interfere with the employees' rights to engage in the collective bargaining process. Similar new and restrictive policies were implemented by the Respondent's agents at Malone High School, and at Golson Elementary School. The new policies at these schools were adopted to coincide with implementation of the Collective Bargaining Agreement, applied only to personnel within the unit, and were implemented in asetting of hostility toward the collective bargaining process. Like the new policies at Marianna High, the new policies at Malone and at Golson were adopted to discourage membership in JCEA, and to interfere with employees in the exercise of their rights to engage in the collective bargaining process. At Malone High. School teachers were no longer permitted to use the teacher's lounge for their planning period as they had been prior to implementation of the contract. Prior to implementation of the contract teachers were permitted to eat lunch in the cafeteria, in the teacher's lounge, or in their own classrooms. Subsequent to the agreement, they were permitted to eat lunch only in the cafeteria, or in the Home Economics classroom, which was not available during all lunch periods. Nothing in the contract in any way necessitated these new policies. One of the top priorities of JCEA in negotiating a collective bargaining agreement was a "duty free" lunch period. JCEA was successful in this respect. The agreement provides for a "duty free" lunch period. Subsequent to adoption of the agreement at a faculty meeting the principal at Malone strongly advised members of the unit to eat with their classes, and in this regard made statements which could only have been perceived as threats. He stated for example that it might be necessary to trade the best player to make a better team. At Golson Elementary School, a "sign-in, sign-out" system was initiated just prior to February 16, 1976. The principal told members of the bargaining unit that he had treated them as professionals", but that now there was a collective bargaining agreement. He required that they sign in at 7:45 A.M. and he frequently reminded the teachers over the intercom system during morning announcements that they should sign in. Prior to implementation of the contract, teachers at Golson Elementary were permitted to leave the school grounds as much as twenty minutes early in order to attend classes, civic functions, or doctors appointments, without the necessity for using leave time. After the contract it was necessary to use one hour leave time in order to leave ten minutes early. Prior to implementation of the contract teachers were permitted to eat lunch in the teacher's lounge or in their own classrooms. Subsequent to the contract they were no longer permitted to do that. Prior to certification of the JCEA as the exclusive bargaining agent of instructional employees of the School Board, the School Board utilized a "Calendar Committee" to assist it in promulgating a calendar for each school year. A representative would be chosen from each school, and the Committee would recommend a calendar for the school year. Among recommendations made by the Calendar Committee would be dates for holidays. During the course of negotiations leading to the Collective Bargaining Agreement, the School Board asserted that the calendar would prohibit negotiations respecting vacation days. The JCEA requested that a Calendar Committee not be utilized for the 1976-77 school year. The School Board nonetheless opted to utilize the Calendar Committee. At Marianna High School Betty Duffee, the chairman of the JCEA's negotiating team was nominated at a faculty meeting to serve on the Calendar Committee. The principal at Marianna High School discouraged the faculty from selecting Ms. Duffee because JCEA would be otherwise represented on the Committee. Use of the Calendar Committee was not designed to frustrate collective bargaining. A Calendar Committee had been utilized prior to certification of the JCEA by the Public Employees Relations Commission. Use of the Calendar Committee to make recommendations respecting mandatory subjects of collective bargaining, such as vacation days, would, however, at this juncture circumvent the exclusivity of JCEA's representation. The fact that the principal at Marianna High School discouraged selection of a JCEA representative to the Calendar Committee indicates an intention to utilize the Committee to make decisions respecting mandatory subjects of collective bargaining, such as vacation days, without the JCEA participating in negotiations. Mary Jo Morton is a teacher employed at Marianna High School. She is active in the JCEA, and this fact is known to the principal at Marianna High School. Shortly after implementation of the Collective Bargaining Agreement Ms. Morton was evaluated by her principal and received an unfavorable evaluation. It appears from the evidence that the evaluation was not conducted under the best circumstances. For example, Ms. Morton was criticized for not permitting sufficient classroom participation during one class while a test was being conducted. Insufficient evidence was offered, however, to establish that the unfavorable evaluations of Ms. Morton were motivated even in part by her participation in the JCEA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that an order be entered as follows: Finding the School Board of Jackson County guilty of committing unfair labor practices by implementing restrictive policy changes at Marianna High School, Malone High School, and Golson Elementary School in such a manner as to discourage membership in the Jackson County Education Association, and interfere with its employees in the exercise of their rights to engage in the collective bargaining process. Finding the School Board of Jackson County guilty of committing an unfair labor practice by utilizing the Calendar Committee for the 1976-77 school year. Requiring that the School Board of Jackson County cease and desist from continued enforcement of the policy changes, and from continued utilization of a calendar committee. Directing that the School Board of Jackson County conspicuously post a notice that it has committed unfair labor practices, that it has been directed to cease and desist from such activities, and that it will cease and desist from such activities. RECOMMENDED this 12th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Austin F. Reed, Esquire Public Employees Relations Commission - Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Richard Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Joseph A. Sheffield, Esquire Post Office Box 854 Marianna, Florida 32446 John F. Dickinson, Esquire COFFMAN & JONES 2065 Herschel Street Post Office Box 40089 Jacksonville, Florida 32203
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, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent 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's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 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 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
