The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 2nd day of May, 2016.
Findings Of Fact At all times relevant thereto, Respondent, Jesse M. Black, was employed in an instructional capacity teaching mathematics at Nautilus Junior High School in Miami Beach, Florida, by Petitioner, the School Board of Dade County. He has been employed at that school since 1976. On or about March 28, 1979, Black was teaching a mathematics class in which one Bobby Jackson, aged 12 years, was a student. After the "tardy" bell had rung, Jackson entered the classroom. Instead of being seated Jackson went directly to the rear of the room and began "yelling" and "playing" with other students. After being told by Black to be seated all other students except Jackson sat down; however, Jackson continued to remain in the rear of the room to borrow a sheet of paper. He then started towards his desk which was at the front of the room and directly in front of Respondent's desk. By this time, Black was approximately 10 minutes late in beginning classroom instruction. In order to prevent any more disruption in the classroom, Black told Jackson to leave the room and reached over and placed his hands on Jackson to escort him to the hall where an assistant principal would take him to the principal's office. When Black placed his hands on the student, Jackson slipped and fell over his desk; however, Black did not use unreasonable force in dealing with the student. Jackson was later suspended from Nautilus for fighting and other disciplinary problems and new attends an Opportunity School in Dade County. On or about November 13, 1980, Black went to his classroom at approximately 6:45 a.m. to prepare an examination to be given that day to his students. At approximately 7:45 a.m. one Nicholas Catania, aged 13 years, entered the classroom. Because class did not begin until 8:30 a.m., Black advised him that he could remain in the classroom to study but otherwise would have to leave. After Catania had placed another student's books on top of a light fixture, Black tapped him on the shoulder and told him to leave the classroom. When class convened at 8:30 a.m. that morning and the Pledge of Allegiance was being conducted, Catania gave a Nazis Salute which prompted laughter in the classroom. After the Pledge of Allegiance was over Black went to Catania, grabbed him on the shoulder, and told him that what the Nazis did was not to be glorified. In the presence of four students, Black then pulled a closed pocketknife out of his pocket, placed it behind Catania's leg, and then replaced it in his pocket. When he did this, he was smiling and did not make the student feel threatened or in danger of physical harm. At no time was the blade on the knife ever opened or exposed. Black has been a public school teacher since September, 1957. His speciality is mathematics and he holds two degrees. His immediate supervisor characterized him as being a dedicated and well-prepared teacher. He was also described by another teacher as having an extensive educational preparation and one who possessed the skills to be a good teacher. Black has had an undisclosed number of problems with discipline in his classroom. He has also been counseled by his principal on several occasions at Nautilus concerning his management skills. However, there was no evidence to show that his effectiveness as a teacher had been impaired by virtue of the incidents herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found not guilty of the allegations in the Notice of Charges dated March 7, 1981, and that he be immediately reinstated be his teaching position with full back pay. DONE and ENTERED this 24th day of August, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1981. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3650 Biscayne Blvd., Suite 300 Miami, Florida 33137 William Du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Blvd. Miami, Florida 33131
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on 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 (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
Findings Of Fact Respondent is Clarence Davis, holder of teaching certificate number 137897 issued by the State of Florida. Respondent is currently employed by Petitioner as a teacher pursuant to a continuing contract which has been in effect since April 21, 1971. Respondent is presently a teacher at Azalea Middle School. In September of 1988 or early October 1988, a 12 year old female student, J.B., in Respondent's gym class complained to Respondent that another student was hitting her. Respondent refused to take any action. From his view of the class seating arrangement on the gym bleachers, Respondent felt there was no way that the student accused could have hit the complainant. Respondent told J.B. to stop crying like a baby. Respondent had been previously requested to use extra sensitivity in dealing with J.B. because she was a recent victim of a violent sex crime. J.B., through her parents, subsequently requested and received a transfer from Respondent's class by the school principal. At the beginning of the 1988-89 school term, D.W. was a student in Respondent's gym class. D.W. testified that Respondent yelled at him in a rude manner and propelled him into a fence on an out door court yard who he hit a volley ball incorrectly. D.W.'s testimony in this regard is not credited because his version of events was not corroborated by other testimony and is in conflict with testimony of Respondent that the incident did not occur and that D.W.'s class did not participate in any out door volley ball activity. D.W. admitted he "mouthed off" to Respondent on several occasions. When Respondent would give D.W. a directive, D.W.'s response was "no". Such an admission is inconsistent with D.W.'s testimony that he was afraid of Respondent; therefore that portion of D.W.'s testimony also is not credited. The principal of the school transferred D.W. from Respondent's class at the request of D.W.'s parents and because D.W. did not have respect for Respondent. Due to his absence on the day that volley ball teams were chosen, V.C. was not assigned to a team when he returned to Respondent's gym class on or about October 19, 1988. V.C. was not supposed to be seated in the gym bleachers with other students who were excused from "dressing out." Respondent yelled at V.C. and told him to get out of the class. V.C. complied and went to the school administrator's office. V.C. was not given a pass or a referral by Respondent in accordance with school policy requirements. V.C. was frightened by Respondent's action. A subsequent parental request to transfer V.C. from Respondent's class was granted by the school principal. On October 20, 1988, Respondent went to the classroom of a fellow teacher, Ms. Moore, and gestured through the glass portion of the door for her to come out and speak with him. She started her class to work on an assignment and stepped out the door to speak with Respondent. The conversation lasted four to five minutes and dealt primarily with Respondent's concern that he was being harassed by school administrative officials. Petitioner's policy no. 6Gx52-2.08 directs that class interruptions must be made at such times as will not interrupt classroom instruction. Just prior to the conversation with Ms. Moore, Respondent had spoken with the school principal in the principal's office. At the meeting with the principal, the principal deliberately left his door ajar for Respondent, not wanting to have a closed door meeting with Respondent. Respondent came into the principal's office and shut the door. Respondent was told by the principal that D.W. would be transferred to another class. Respondent argued with the principal, shook his finger in the principal's face and said "I won't be treated like a child." When the principal reached for the door handle, Respondent held the door shut and continued speaking in a voice loud enough for administrative personnel seated at desks approximately 15 feet outside the door to become concerned. The principal did not ask Respondent to open the door or to remove his hand from the door. Respondent then left the office, walked a short distance toward the exit to the administrative office section, and came back to the door of the principal's office where he again shouted that he wasn't being treated fairly, or words of similar import. Respondent then left the area. Another 13 year old male student, P.L., was transferred from Respondent's class at the request of his mother after the first grading period of the 1988-89 school year. P.L. received an "F" from Respondent for the first grading period because P.L. refused to dress out for physical education class. P.L. also witnessed Respondent yell and scream at other students. P.L. did not recall specific incidents and his testimony cannot be credited as corroborative of any particular incident alleged against Respondent. On or about October 28, 1988, Respondent grabbed D.B., a 14 year old seventh grade student, who was in the process of fighting with another student. As established by Respondent's testimony, D.B. is a "street smart" kid adept at fighting who poses a danger to other students in such a situation. As a result, Respondent held D.B.'s arm and carried him back to his office from the floor of the gym. D.B. is still in Respondent's class. Testimony of D.B. that Respondent intentionally twisted D.B.'s arm is not credited due to the demeanor of the witness while testifying; the lack of corroborative testimony of Respondent's arm twisting conduct by other witnesses; the testimony of another student, L.H., that he observed the incident and did not see D.B.'s arm twisted; and Respondent's denial of such action. On or about September 5, 1986, the principal of the school where Respondent was then employed, counselled Respondent concerning his aggressive touching of students. Respondent was reprimanded in a memorandum from the principal of Azalea Middle School dated April 18, 1989, for unprofessional conduct. The Superintendent of Schools for Pinellas County reprimanded Respondent by letter dated June 1, 1988, for failure to meet professional standards relating to personal conduct. Respondent was warned that failure to follow administrative directives and treat colleagues and staff in an appropriate and acceptable manner in the future would result in a recommendation to Petitioner that Respondent be disciplined through suspension or termination of employment. The Director of Personnel Services for Petitioner was presented at final hearing as an expert in education practices and administration. Based upon his review of Respondent's previous disciplinary record, he opined that disciplinary action was appropriate. While he had met with Respondent to advise him of the disciplinary matters pending against Respondent, the director admitted that he did not discuss with Respondent the alleged incidents involving students J.B., V.C., D.W., and P.L.; therefore he did not have the benefit of information from Respondent in formulating an opinion regarding the appropriateness of the discipline proposed in this case. The school principal never consulted Respondent with regard to learning Respondent's version of the incidents involving students J.B. or D.W. The principal heard Respondent's version during the October 20, 1988, meeting with Respondent in the principal's office. Notably, the principal did meet with D.W., his parents and another instructor in a different class to resolve behavioral problems in that class. As stipulated by the parties, Petitioner bases Respondent's suspension for three days without pay upon Respondent's alleged actions with regard to students J.B., D.W., and V.C.; his confrontation with the school principal on October 20, 1988; his discussion of the matter with fellow teacher, Ms. Moore, on October 20, 1988; and his alleged failure to comply with previous directives to correct deficiencies in his professional behavior as set forth in previous reprimands. Petitioner's second suspension of Respondent without pay for a period of five days is based upon allegations that Respondent engaged in actions after November 8, 1988, and prior to December 14, 1988, consisting of pushing and shoving students in a punitive manner; that such alleged misconduct by Respondent occurred while the previous suspension action of November 8, 1988, was still pending; and that Respondent had been previously warned in reprimands issued to him in 1986 and 1988 to refrain from such conduct. The basis of the allegation regarding Respondent's pushing and shoving of students, relied upon by Petitioner to support the second suspension, consists of the incident involving student D.B. A second incident involving student M.S., a female in the sixth grade physical education class of Respondent, occurred after the December 14, 1988 date of the charging instrument for the second suspension and is not credited with regard to present charges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in Division of Administrative Hearings Case No. 88-5720 and Division of Administrative Hearings Case No. 89- 0344 dismissing the proposed suspensions of Respondent from his employment. DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5720 AND 89-0344 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 1960 East Druid Road Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue Southwest Largo, Florida 34640
The Issue The issues for determination are whether the conduct of Respondent was in violation of the employment practices and policies of the Miami-Dade County School Board; and whether the conduct of Respondent, taken in light of his prior employment record and the requirements of progressive discipline, constituted just cause for termination.1
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, since February 21, 1986 and at all times material hereto, Mr. Kuse was employed full-time with the School Board as an electrician and assigned to Facilities and Operations-Maintenance. Hence, Mr. Kuse has been employed with the School Board in the same position for more than 20 years. Except for the case at hand, Mr. Kuse has only been disciplined once in his more than 20-year employment with the School Board. As to the prior disciplinary action, in essence, in 1999, Mr. Kuse had, what he considered, an emergency involving his minor child at school and left his work assignment, in a School Board vehicle and without notifying his supervisor, to attend to his child, who was in kindergarten and who was ill. He received a written reprimand, in which he was advised, among other things, that he was not to use a School Board vehicle for personal use; that he was to notify his supervisors if he needed emergency leave or to deviate from his work assignment; and that he needed to adhere to the proper completion of Daily Status Forms (he failed to properly indicate on his Daily Status Form his whereabouts and his work time regarding the emergency with his child). As to the instant case, in 2005, the School Board investigated an allegation that, on or about January 20, 2005 through January 29, 2005, Mr. Kuse failed to adhere to his work schedule by not being present at his assigned worksite during the period of time that he was assigned to be at the worksite. During its investigation, the School Board was able to confirm only one instance, January 28, 2005, that Mr. Kuse did not adhere to his work schedule. The School Board determined that Mr. Kuse was out of his assigned work area without authorization; had misrepresented his whereabouts and times on his Daily Status Forms; and had used a School Board vehicle without authorization. By memorandum dated May 17, 2005, Ignacio Palacio, Director of Region Maintenance Center II, recommended terminating Mr. Kuse's employment with the School Board. By memorandum dated May 20, 2005, Robert Brown, Administrative Director of Facilities Operations, Maintenance recommended termination of Mr. Kuse's employment. By letter dated June 15, 2006, the School Board notified Mr. Kuse, among other things, that the School Board, at its scheduled meeting on June 14, 2006, took action to suspend him from employment and commence dismissal proceedings against him, effective at the close of the work day on June 14, 2006, "for just cause, including but not limited to: non-performance and deficient performance of job responsibilities; misconduct in office; and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. " Mr. Kuse's hours of work, as an electrician with the School Board, were 7:00 a.m. to 3:30 p.m. He was aware of his break time and the time allotted for break time; that a School Board's vehicle is not to be used for personal errands; and that he needs his supervisor's permission to use a School Board's vehicle for personal errands. Also, Mr. Kuse was aware of the Daily Status Form, its purpose, and how to complete it. At hearing, Mr. Kuse admitted that he was at a restaurant during the period of time that he was assigned to a worksite but did not admit to the dates or the number of times that such action had occurred. He further admitted that he was taking a coffee break or having coffee at the restaurant before he reached his assigned worksite; that he did not contact a supervisor to obtain permission to do so; that he did not reflect the break on his Daily Status Forms; and that he had not contacted a supervisor to obtain permission to use the School Board vehicle to take the break. The School Board's "Breaktime and Mealtime Policy for Employees" states in pertinent part:
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 Robert Kuse, Jr. for 30 days without pay and consistent with the terms and conditions of the Contract between the Miami-Dade County School Board and the Dade County Public School Maintenance Employee Committee. DONE AND ENTERED this 13th day of July 2007, in Tallahassee, Leon County, Florida. S 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 13th day of July, 2007.
The Issue Whether the Respondent committed the violations alleged in the letter dated February 14, 2002, and in the Notice of Specific Charges filed April 3, 2002, and, if so, whether the Respondent should be dismissed from his employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes (2001). Mr. Fullington is employed by the School Board as a journeyman Plumber II, and, prior to his suspension in February 2002, he was assigned to the North Satellite office of the School Board's Maintenance Department. He is represented by the Dade County School Maintenance Employee Committee, which has a contract with the Miami-Dade County public school system ("DCSMEC Contract") effective June 2001 through September 30, 2002.3 Mr. Fullington has worked for the School Board for 19 years; he began in 1983 as a laborer and worked his way up to journeyman plumber, which requires a five-year apprenticeship. In 1994, the School Board suspended Mr. Fullington and initiated proceedings to dismiss him from his employment, alleging that he had committed misconduct in office by forging the signatures of two of his supervisors on school district documents. After an evidentiary hearing, a Recommended Order was entered by a School Board hearing officer, who noted that Mr. Fullington admitted the charges but was remorseful and presented evidence of mitigating factors. The hearing office concluded that Mr. Fullington should not be dismissed from employment and recommended that Mr. Fullington be suspended without pay for four months. The School Board entered a Final Order on August 23, 1995, in which it adopted the hearing officer's Recommended Order and imposed the penalty recommended by the hearing officer. Mr. Fullington was promoted from an apprentice plumber to a journeyman Plumber II in January 1998. Leo Akers has been Mr. Fullington's foreman for seven or eight years.4 According to Mr. Akers, Mr. Fullington's job performance was, until his suspension, adequate, although his work was excellent when he was an apprentice. In Mr. Akers' experience working with Mr. Fullington, he has always performed his job assignments. Mr. Akers has never reported Mr. Fullington to his superiors for a discipline problem, he has had no difficulties working with Mr. Fullington, and he has received no complaints about Mr. Fullington from his co-workers. Prior to the incidents giving rise to this proceeding, the only disciplinary action taken by the School Board against Mr. Fullington was the four-month suspension in 1995. In June 1997, Mr. Fullington and his co-worker Steven Montgomery were commended by the principal of a Miami-Dade County elementary school, who wrote a letter to Max Metzger, the Director of the North Satellite of the Maintenance Department, praising Mr. Fullington and Mr. Montgomery for their work re- piping the school's broken water system. The principal stated among other things that "[t]he actions, behavior and cooperativeness of these two men deserve great recognition and applause, because our school operation was normal and free of major disruption as they worked." Solicitation for prostitution. Mr. Fullington was assigned overtime work on Saturday, August 18, 2001. When he reported to work at approximately 6:00 a.m., Mr. Akers, his foreman, met Mr. Fullington and told him to drive a School Board van to a plumbing supply house to pick up a load of pipe needed for the job. Mr. Fullington was then to meet Mr. Akers and two other plumbers at the job site, where they were installing the plumbing for a kitchen at one of Miami-Dade County's trade schools. On the way to the supply house, Mr. Fullington initially drove down Interstate 95, but he decided to avoid the traffic and take Second Avenue. As he drove down Second Avenue, he saw a young woman standing on the corner of Northwest 79th Street and Second Court, and he thought he recognized her as someone he knew in high school and from his neighborhood. Mr. Fullington turned the van around and drove back to speak to the woman. He pulled the van over to the side of the street, and he and the young woman engaged in a short conversation. According to Mr. Fullington, the encounter consisted of the following: He approached the young woman in the School Board van and told her that she looked familiar and that he thought he knew her. She responded that he looked familiar, and she asked him what he was doing. He responded that he was working; she responded that she was working, too. Mr. Fullington testified that, when he realized what the woman meant, he began to laugh because he was embarrassed that he had stopped, and he drove away. The young woman was actually Officer Robin Starks, an undercover police officer working on a "prostitution detail," posing as a decoy. During her time with the Miami Police Department vice unit, Officer Starks has participated in at least 200, and maybe more, prostitution details. On August 18, 2001, she was assigned to work on the prostitution detail from 4:00 a.m. to 9:00 a.m., during which time she made five or more arrests. Officer Starks testified that, when she is working as a decoy on a prostitution detail, she does not do anything that would make a person think she was a prostitute: She does not walk provocatively or wave at passers-by but just stands on a corner; she normally wears shorts or a skirt, and she never dresses like a prostitute but always dresses the way she would normally dress at home. She did not recall specifically what she was wearing on August 18, 2001. After the short conversation, Officer Starks turned and walked away from Mr. Fullington, who had remained seated in the van, and he drove away. She gave a signal to another person on the detail that Mr. Fullington should be arrested, and she proceeded to a nearby police vehicle and completed the narrative portion of an arrest affidavit with the following information: While working in an undercover capacity, defendant drove up in a large silver utility van bearing tag 100195 and M-768 affixed on the back of the vehicle. Defendant called this officer over and offered $10.00 dollars for some head. Take down signal was provided, units were notified and the defendant was apprehended.[5] The Arrest Affidavit was not signed by a notary in Officer Starks' presence, and Officer Starks' did not participate further in the events surrounding Mr. Fullington's arrest. According to that portion of the Arrest Affidavit completed by the officer who actually took him into custody, Mr. Fullington was arrested at 7:48 a.m. at Second Avenue and Northwest 75th Street and charged with soliciting to commit prostitution. He was taken in a police car to a substation, and the School Board's utility van was impounded. Mr. Fullington was in a panic after his arrest. The police officer tried to calm him and explained that he would not be put in jail but that he must sign the Arrest Affidavit before he could be released to return to work. Mr. Fullington signed the arrest affidavit, indicating that he would appear in court, and the police officer then told him he would have to pay $1,000.00 to get the School Board's vehicle out of the impoundment lot. The police officer drove Mr. Fullington to a Publix supermarket in his squad car so that Mr. Fullington could get cash from his savings account from the ATM. Mr. Fullington had only $860.00 in his savings account, and the police officer loaned him the additional $140.00. Mr. Fullington paid the $1,000.00 and got the School Board van out of impoundment. Before he left the substation, Mr. Fullington called Mr. Akers and told him he had an emergency and could not pick up the plumbing supplies. Mr. Akers told Mr. Fullington to report to the work site when he had taken care of the emergency. He reported for work at around 11:00 a.m. and told Mr. Akers a totally fabricated story to explain his absence. At the hearing, Mr. Fullington expressed remorse for having told Mr. Akers a lie but explained that, at the time, he was not thinking rationally and did not want anyone to know that he had been arrested for soliciting prostitution.6 On October 2, 2001, the criminal case against Mr. Fullington on the charges of offering to commit prostitution was closed with adjudication withheld and community service. Overtime hours. In accordance with the usual procedure, Mr. Akers completed a Facilities Support Services Weelky [sic] Overtime Report for each of the plumbers working on August 18, 2001, and left the forms at the job site. Each plumber was to sign his form at the end of the day to certify the number of overtime hours he had worked; the forms were then to be submitted to Mr. Akers for his review. Mr. Fullington signed the Weekly Overtime Services form with his name on it, which reflected that, on August 18, 2001, he had worked at the "Dorsey Skill" site from 6:00 a.m. until 4:30 p.m., for a total of 10 hours of overtime. Above his signature, was the following statement: "I certify that the work and hours indicated above are true and correct." It was Mr. Fullington's responsibility to ensure that the correct number of overtime hours was reported on the form. Mr. Fullington also signed a Daily Status Form for Maintenance and Operations on August 18, 2001, that showed that he had worked a total of 10 hours overtime, consisting of one hour of overtime travel and 9 hours of overtime. At the hearing, Mr. Fullington explained that he was so distracted by the events of August 18, 2001, that he signed both forms without looking at them. After Maintenance Department administrators learned that Mr. Fullington had inaccurately reported his overtime hours for August 18, 2001, he was advised that he could submit a Weekly Overtime Report and a Daily Status Report reflecting the number of hours that he had actually worked on August 18, 2001, and that he would get paid for those hours. Mr. Fullington did not submit the corrected forms and has not been paid for the hours of overtime that he actually worked on August 18, 2001. Additionally, Mr. Fullington never asked for, or received, reimbursement from the School Board for the $1,000.00 he paid to recover the School Board van from the impoundment lot. Post Office incident At around 12:30 p.m. on October 31, 2001,7 during their lunch hour, Robert Brown, the District Director of Maintenance Operations for the Miami-Dade County public school system, and Peter Vadas, Mr. Brown's co-worker, stopped at a post office so Mr. Vadas could purchase stamps. Mr. Brown saw a School Board van parked in the post office parking lot, and he waited in the car while Mr. Vadas went into the post office so he could keep the van under observation. After a few minutes, Mr. Vadas returned to the car. While Mr. Vadas was buckling his seat belt, Mr. Brown saw Mr. Fullington walking across the post office parking lot with a letter in his hand. The letter Mr. Fullington picked up was a certified letter from the School Board's Office of Professional Standards. Mr. Fullington was in the post office approximately 10 minutes. Mr. Brown observed Mr. Fullington get into the School Board van, where he sat and read the letter. As he and Mr. Brown sat in the post office parking lot observing Mr. Fullington read his letter, Mr. Vadas telephoned Kenny McFarland to report that Mr. Fullington was at the post office in a School Board van. Mr. McFarland, a Coordinator II at the North Satellite of the Maintenance Department, is a senior administrator who was in the supervisory chain-of-command for Mr. Fullington.8 After reading the letter, Mr. Fullington drove off, and Mr. Brown and Mr. Vadas returned to their office. Mr. Fullington's regular, assigned lunch half-hour was 11:30 a.m. to 12:00 p.m. This time could be changed with permission from his foreman. The post office that Mr. Fullington visited was located approximately 10 miles from the schools at which he was assigned to work that day. Incident involving Mr. Akers. On November 2, 2001, Mr. Fullington picked up his work assignments as usual from the "foreman's table" in the large office in which a number of maintenance foremen had their desks and work areas. At the time, there were perhaps 15 or 20 people in the foremen's office. The paperwork for Mr. Fullington's work assignments was affixed to a clipboard made of aluminum. Mr. Fullington was assigned to work with Steven Montgomery and, as they were walking to the truck with their assignments, Mr. Montgomery told Mr. Fullington that he overheard Mr. Akers telling someone that Mr. Fullington never showed up at a particular school to complete a work order. Mr. Montgomery believed that Mr. Akers was repeating something that someone else had told him about Mr. Fullington, and Mr. Montgomery told Mr. Fullington that he needed to clear up the misunderstanding. Mr. Fullington was upset to hear that Mr. Akers believed he had not completed a work assignment, and he wanted Mr. Akers to know that the information he was repeating was not correct. Mr. Fullington asked Mr. Montgomery to go back to the foremen's office with him so he could resolve the matter immediately. Mr. Fullington and Mr. Montgomery went back into the foremen's office area. Mr. Akers was sitting at his desk, which was made of metal. Mr. Fullington approached the desk and dropped the metal clipboard he was carrying onto the top of Mr. Aker's desk, next to his computer, in such a manner that it made a loud noise. Mr. Fullington began "hollering" at Mr. Akers, saying something about Mr. Akers trying to set him up.9 It was clear to Mr. Akers that Mr. Fullington was upset and angry, but Mr. Akers did not have any idea what Mr. Fullington was talking about. At the time, Mr. Akers felt threatened by Mr. Fullington; he was caught off guard by the outburst and does not recall saying anything in response to Mr. Fullington's accusations. When Mr. Fullington left the foremen's office, he forcefully kicked or pushed open the door to the hallway. Although Mr. Akers considered the incident very serious, he did not report the incident to his supervisor or call the police or security. Another foreman, John DiGregorio, who was in the room at the time of the incident, became nervous during the incident, primarily because of Mr. Fullington's size.10 Mr. DiGregorio immediately called his supervisor, Frank Brighton, whose office was on the floor above that of the foremen. Mr. Brighton came down to the foremen's office and questioned Mr. DiGregorio and Mr. Akers about the incident. Mr. Brighton reported the incident to Mr. Akers supervisor, Anthony Adams. Several days after the incident, Mr. Fullington asked Mr. Akers if he had felt threatened during the incident; Mr. Akers responded in the affirmative, and Mr. Fullington apologized. At the hearing, Mr. Fullington testified that he felt very badly about having raised his voice to Mr. Akers in anger. He explained that, at the time, he was under a lot of pressure because the Conference-for-the-Record to discuss the events of August 18, 2001, was scheduled for November 6, 2001, and he was concerned that his job with the School Board was in jeopardy. Mr. DiGregorio, who has been a maintenance foreman with the School Board for 10 years, had never previously seen Mr. Fullington act in any way that could be considered hostile or threatening. Mr. DiGregorio described Mr. Fullington's demeanor as generally gentle and non-threatening. In the years that Mr. Akers has worked with Mr. Fullington as his foreman, the only time Mr. Fullington ever raised his voice in Mr. Akers' presence was during the November 2, 2001, incident. Subsequent to the incident, Mr. Akers did not feel that he needed any protection from Mr. Fullington, they continued their usual good working relationship, and Mr. Fullington's job performance continued to be satisfactory. November 6, 2001, Conference-for-the-Record. On November 6, 2001, Reinaldo Benitez, an Executive Director of the School Board's Office of Professional Standards, held a Conference-for-the-Record with Mr. Fullington to address Mr. Fullington's arrest for offering to commit prostitution, to review his record with the School Board, and to discuss his future employment status with the Miami-Dade County public school system. Mr. Fullington's inaccurate reporting of the overtime hours he worked on August 18, 2001, was also discussed. Mr. Fullington's prior disciplinary record was set forth in the Summary of the Conference-for-the-Record. With the exception of the four-month suspension in 1995, the only disciplinary action taken against Mr. Fullington was a verbal reprimand in 1990 for improper conduct. Mr. Fullington was given an opportunity at the Conference-for-the-Record to consider resigning his position; he refused. The following directives were given to Mr. Fullington on November 6, 2001: Adhere to all M-DCPS School Board Rules at all times, especially 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct. Honor your work hours from 7:00 a.m. to 3:30 p.m. Adhere to all maintenance procedures and regulations at all times. Adhere to the most direct route when traveling from location to location, unless you obtain authorization from your supervisor. Refrain from submitting any fraudulent documents to M-DCPS at any time. Mr. Fullington was advised that dismissal from his employment was a potential disciplinary action. After the November 6, 2001, Conference-for-the-Record, Mr. Vadas, District Director of Maintenance Operations; Max Metzger, the Director of Maintenance Operations at the North Satellite; and James Monroe, Executive Director of Facilities Operations, met and reviewed the data submitted at the conference. As a result of their deliberations, Mr. Vadas sent a memorandum, dated November 13, 2001, to the Office of Professional Standards recommending that Mr. Fullington be terminated from his employment with the School Board.11 No one asked for Mr. Akers' input on the recommendation, discussed the recommendation with him, or explained to him the reasons for the recommendation that Mr. Fullington's employment be terminated. There is no evidence that, prior to his suspension in February 2002, Mr. Fullington violated any of the directives given on November 6, 2001. November 16, 2001, Conference-for-the-Record. On November 16, 2001, Mr. Metzger, held a Conference- for-the-Record, the purpose of which was "to address your [Mr. Fullington's] failure to follow the Maintenance Department's policies and procedures as they pertain to the use of M-DCPS vehicles, your verbal abuse towards your foreperson, and other performance-related issues."12 The administrators at the Conference-for-the-Record discussed a number of the issues with Mr. Fullington, including Mr. Fullington's use of a School Board vehicle to visit a post office on personal business and Mr. Fullington's angry confrontation with Mr. Akers.13 No formal directives were given to Mr. Fullington as a result of this Conference-for-the-Record. Mr. Fullington was, however, reminded of the School Board policy that School Board vehicles are not to be used for personal business,14 of the School Board rules relating to employee conduct and to violence in the workplace, and of several other concerns.15 On January 15, 2002, a meeting was held during which Mr. Fullington was advised of the recommendation that he be dismissed from his employment with the School Board. Mr. Fullington was again offered the option of resigning his position. In a letter dated January 30, 2002, the Superintendent of Schools for Miami-Dade County notified Mr. Fullington that he was recommending to the School Board that, at its February 13, 2002, meeting, it suspend and initiate dismissal proceedings against him for "just cause." A letter to Mr. Fullington dated February 14, 2002, contained confirmation that the School Board had followed the Superintendent's recommendation. Summary Offering to commit prostitution. In the Notice of Specific Charges, the School Board included the allegation that Mr. Fullington "solicited prostitution from an undercover police officer."16 The School Board has, however, failed to establish by the greater weight of the evidence that Mr. Fullington solicited prostitution from Officer Starks. The testimony of Officer Starks and Mr. Fullington has been carefully considered, and there is nothing in either the testimony or the demeanor of Mr. Fullington and Officer Starks or in the other evidence presented on this issue that offers a cogent reason to accept Officer Starks' version of the incident over that of Mr. Fullington. This finding is based on a careful consideration of the totality of the evidence presented in this case relevant to the issue of whether Mr. Fullington solicited prostitution and a careful assessment of the credibility of Officer Stark and Mr. Fullington and of the persuasive value of their testimony.17 Consequently, discipline cannot be imposed on Mr. Fullington based on the allegations in the Notice of Specific Charges that he solicited prostitution. Additionally, the allegations that Mr. Fullington committed the offense while working overtime and while driving a School Board vehicle and that the School Board vehicle was impounded cannot form the basis for the imposition of discipline because the underlying allegation that he solicited prostitution has not been established.18 Reporting incorrect number of overtime hours worked on August 18,2001. In the Notice of Specific Charges, the School Board alleged that Mr. Fullington "falsely reported that he worked ten hours on that date [August 18, 2001]." Mr. Fullington does not dispute that he signed the Weekly Overtime Report and the Daily Status Report on August 18, 2001, certifying that he had worked 10 hours of overtime on that date and that the actual amount of time he worked on that day was not accurately reported on the forms. Even though credence is given to Mr. Fullington's explanation that he was so distraught by the events of August 18, 2001, that he did not look at the number of hours included on the forms, by signing the forms, Mr. Fullington certified that the number of overtime hours shown on the forms was correct. Mr. Fullington, therefore, submitted false information to the School Board, and he was not honest in his dealings with the School Board with respect to the overtime hours he worked on August 18, 2001. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's inaccurate reporting of his hours for August 18, 2001, was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board has failed to prove by the greater weight of the evidence that Mr. Fullington intentionally misrepresented the number of overtime hours that he worked on August 18, 2001. There is no evidence that Mr. Fullington intended to submit inaccurate information or that he engaged in any type of deceitful conduct in an attempt to ensure that he was paid for more overtime hours than he actually worked on August 18, 2001. And, given his many years of employment in the School Board's Maintenance Department, it is reasonable to infer that Mr. Fullington knew that Mr. Akers would have noted the discrepancy before submitting the forms to payroll. Use of the School Board van to go to the post office on personal business. The School Board has proven by the greater weight of the evidence that Mr. Fullington used a School Board vehicle for personal business when he went to the post office at about 12:30 p.m. on October 31, 2001, to collect a certified letter from the School Board. In doing so, Mr. Fullington violated the School Board's policy, set forth in the Maintenance Handbook that expressly prohibits the use of a School Board vehicle for personal business. Under the circumstances, Mr. Fullington committed a minor violation of Maintenance Department policy. Nonetheless, even though a minor offense, Mr. Fullington's use of the School Board's vehicle to go to the post office on October 31, 2001, constitutes the use of his access to School Board vehicles for his personal advantage. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's use of a School Board vehicle for personal business on this occasion was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board failed to present any creditable evidence to support its allegation in paragraph 7 of the Notice of Specific Charges that Mr. Fullington reported that he had worked at Barbara Goleman Senior High School from 7:30 a.m. to 1:00 pm. on October 31, 2001.19 Confrontation with Mr. Akers. Mr. Fullington did not controvert the evidence presented by the School Board that, on the morning of November 2, 2001, he confronted his foreman, Mr. Akers, about a negative comment Mr. Akers reportedly made about Mr. Fullington to other School Board employees; that he was angry and upset; that he shouted at Mr. Akers; and that he angrily and forcefully pushed the door open when he left the foremen's office. The evidence presented by the School Board is also sufficient to establish that Mr. Akers and Mr. DiGregorio perceived Mr. Fullington's behavior as threatening and that Mr. Akers felt fear during the confrontation. The impact of Mr. Fullington's conduct on this occasion is, however, mitigated by the testimony of Mr. Akers that he and Mr. Fullington worked together in a satisfactory supervisor-employee relationship after the November 2, 2001, incident and by the testimony of both Mr. Akers and Mr. DiGregorio that they have never felt threatened by or nervous around Mr. Fullington before or since the November 2, 2001, incident. The School Board has, therefore, established by the greater weight of the evidence that Mr. Fullington committed three offenses: He submitted two forms containing an inaccurate statement of his overtime hours on August 18, 2001; he used a School Board vehicle for personal business; and he confronted Mr. Akers in anger. However, none of the three offenses is inconsistent with the standards of public conscience and good morals or impaired Mr. Fullington's service in the community; none of the three offenses involves the constant or continuing intentional refusal to obey a direct order; none of the three offenses constitutes repeated violations of the law or repeated acts of indiscretion that persisted over an extended period of time, and none of the offenses was so serious that it impaired Mr. Fullington's effectiveness as a School Board employee. In light of Mr. Fullington's 19-year employment record with the School Board, which is marred by only one verbal reprimand and one four-month suspension, these three offenses, whether considered separately or cumulatively, are not sufficient to constitute "just and good cause" to suspend and dismiss Mr. Fullington from his employment with the School Board.
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 Dismissing Counts I, II, IV, and V of the Notice of Specific Charges against Benjamin Fullington; Finding that Mr. Fullington engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21(I); Reinstating Mr. Fullington to his position as a Plumber II with the School Board's Maintenance Department, with full back pay and benefits; and Issuing a written reprimand to be placed in Mr. Fullington's personnel file. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 September, 2002.
The Issue Whether the Respondent, Lissa Nappier, committed the violations alleged in the Notice of Specific Charges and, if so, whether such allegations are just cause for termination of her employment with the School Board.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Lissa Nappier, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. The Respondent’s employment relationship with the Petitioner began in 1984 when she was retained as a temporary instructor. In 1988 she was hired as a permanent teacher and was assigned to Homestead Senior High School where she has continued service until the instant issues emerged. From 2004 until the time of her recommended termination, the Respondent was employed as the Student Activities Director at the school. Prior to the instant matter, the Respondent has had no disciplinary issues or actions. As a condition of her employment with the Petitioner, the Respondent is subject to the terms and conditions of a contract between the School Board and the United Teachers of Dade (UTD contract). Article XXIV of the UTD contract provides for credential payment to encourage employees of the School Board to pursue further studies and expertise in their respective fields. Such pursuit enhances the quality of education for students in the school district. At all times material to this case, the credential payment increase for a teacher with a doctorate degree was $7000. The effective date for the implementation of the credential payment is computed “after completion of eligibility requirements, as indicated on the transcript by the issuing university.” The UTD contract further provides that: Completion of eligibility requirements shall be defined as: (a)filing an official M- DCPS/UTD application for credential payment with the Office of Human Resources (receipt acknowledged and dated by M-DCPS); and (b) completion of course work/degree requirements prior to the date of the quarter for which payment is requested, as indicated by the date on the transcript, or other appropriate evidence provided by the university. M-DCPS shall notify all new employees of the availability of the credential payment programs and the procedures for making application. Under the heading “Eligibility,” the UTD contract also states: To qualify as graduate level, credit must have been earned after the applicant was granted the Bachelor’s degree and must be clearly identified as such. Pursuant to the UTD contract, Applicants whose applications are disapproved shall be notified that they may appeal the decision to the committee by resubmitting and supplying such additional and germane information and/or documentation as will be helpful in reaching a decision regarding the appeal. The decision of the committee is final and not grievable or arbitrable. On or about April 8, 2004, the Respondent submitted a note to the Petitioner’s Office of Compensation Administration that stated: Enclosed please find my official transcript for my Doctorate Program. Along with the transcript is a verification form. My employee number is 152174. Thank you for your attention in this matter, and with the necessary adjustments with payroll. Attached to the note described above, was a document purportedly from Rochville University. The Rochville document contained the words “Official Transcript” and purported to indicate that the Respondent had completed the noted courses. The document represented the Respondent had obtained a “Doctor of Arts (Major: Education).” Also attached to the note described in paragraph 11 was a form purportedly executed by the Rochville University Registrar and President that stated: This is to verify that Lissa A. Nappier has successfully completed the Doctor’s Program from Rochville University in the year 2004. In order to obtain the “Doctor of Arts” from Rochville University, the Petitioner submitted her transcripts from Brenau College, Nova Southeastern University, the requisite fees required by the school, and a summary of her 18 years of teaching experience to Rochville. Rochville University is an “on line” institution. The Respondent did not complete additional course work, did not write a thesis, and did not attempt to verify that Rochville University was an acceptable, accredited school prior to paying her fees for the degree and submitting the documents to the Petitioner for credential payment. It is unlikely that Rochville is an accredited university. Its academic claims are related to its status as an accredited “on line” institution. For approximately $600.00 the Respondent received a doctorate degree. After reviewing the Respondent’s documentation, the Petitioner denied the credential payment increase. The Respondent did not challenge or seek additional review of that denial. The matter was referred to the Petitioner’s Office of the Inspector General because the Respondent had “submitted a transcript to obtain credential payment for an advanced degree using a transcript from an unaccredited university.” None of the courses depicted on the Rochville University transcript that was appended to the Respondent’s note were actually for course work completed by the Respondent while attending (even online) Rochville classes. None of the hours for the courses depicted on the Rochville University transcript were earned while attending (even online) Rochville classes. The Respondent knew or should have known that a credible doctor of arts degree requires more than the submission of prior coursework, life experience, and the payment of fees. Moreover, the Respondent did not present evidence of any “life experience” that would entitle her to a doctor of arts degree from any accredited university. That Rochville University accepted the Respondent’s experience and prior academic work as sufficient to award a doctorate degree dishonors the hours of work that are, in reality, required of post-graduate students who obtain doctorate degrees from reputable institutions. Although technically truthful in Respondent's representation to the Petitioner, the Respondent’s request for credential payment was clearly not supported by credible academic achievement. The Respondent attempted to obtain credential payment using a non-creditable source. This was a tremendous lapse of good judgment. The Respondent, did not, however represent that Rochville University is an accredited university. She only represented that she had obtained a doctorate degree from that entity. Her lapse of judgment was in attempting to parlay her worthless degree into a credential payment increase. Her effort failed due to the attentive review of her request. At the time the Respondent was going through a divorce and needed additional income. The online approach to obtaining the doctorate degree appeared to be an easy, affordable alternative. The Respondent did not verify that Rochville University was accredited by any national accreditation source or that the university was acceptable to the School Board for purposes of obtaining a post-graduate degree.
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 sustaining the Respondent’s suspension without pay for the amount of time it deems appropriate, but returning the Respondent to full employment thereafter. S DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the amended administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Ralph Rico Marshall, is a licensed teacher having been issued certificate number 497505 by the Department of Education. The certificate covers the areas of guidance counseling and industrial arts and technology education, and is valid through June 30, 1999. In this proceeding, petitioner, Frank T. Brogan, as Commissioner of Education, seeks to discipline respondent’s license on the grounds he allegedly violated state law and two rules. In an amended administrative complaint filed on March 21, 1996, petitioner has alleged generally that (a) after June 18, 1993, respondent failed to comply in various respects with the terms of his probation as set forth in a final order issued by the Education Practices Commission (EPC) on December 10, 1992, and (b) on December 1, 1995, respondent pled guilty to a charge of armed kidnapping, a felony. Respondent has denied these allegations and initiated this proceeding to contest the charges. The Felony Charge As to the charge that respondent has been convicted of a felony, the evidence shows that on December 1, 1995, respondent pled guilty to a charge of armed kidnapping and was sentenced to a term of five years in state prison with three years minimum mandatory. He is now incarcerated at a facility in Lake County, Florida. After being incarcerated, petitioner filed for post- conviction relief under Florida Rule of Criminal Procedure 3.850 claiming that his trial counsel was ineffective and that the minimum three-year sentence was illegal. The trial court denied his motion on April 11, 1996. In the case of Ralph Marshall v. State of Florida, 685 So.2d 63 (Fla. 1st DCA 1996), the court reversed the trial court’s order and held in relevant part as follows: The portions of the record attached to the trial court’s order denying relief do not conclusively show that appellant is entitled to no relief on these claims. Accordingly, we reverse and remand. If the trial court again determines that appellant is entitled to no relief, it shall attach to its order those portions of the record which conclusively establish that. Id. at 63. On remand, the trial court entered an order on February 21, 1997, again denying respondent’s post-conviction relief. On March 6, 1997, respondent filed a notice of appeal of that order with the Fourth District Court of Appeal. The matter is now pending before that court. Compliance With Terms of Probation In school year 1992-93, respondent was employed at Mattie Rutherford Alternative Education Center. After an administrative complaint was issued by petitioner, a settlement was reached by the parties. On December 10, 1992, the EPC entered its final order approving a settlement agreement with respondent, reprimanding him, and placing him on three years’ probation, or until December 10, 1995. Among other things, respondent agreed, as a condition of probation, to immediately contact the EPC upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of the Respondent’s performance, including but not limited to compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent by his immediate supervisor or by the school district; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation or assessment prepared by his supervisor within ten (10) days of its issuance; (and) satisfactorily perform his assigned duties in a competent, professional manner; In addition, paragraph 6 of the agreement provided that in the event that the Respondent fails to comply with any term or condition of this agreement, the Petitioner will be authorized to file an Administrative Complaint seeking further sanctions or revocation of the Respondent’s certificate, based upon violation of the terms of probation set forth herein. An alleged violation of the agreement forms the basis, in part, for the issuance of the amended administrative complaint. On January 19, 1993, the EPC sent respondent a letter specifying the conditions of probation enumerated in the order. On February 17, 1993, a second letter was sent by the EPC reminding him of these conditions. Therefore, there can be no doubt that respondent was aware of the probationary requirements imposed under the settlement agreement. Respondent timely filed his quarterly performance reports for the months of March and June 1993. While acknowledging that the reports had been timely filed, the EPC cautioned him that he needed improvement in the areas of classroom management and teacher-student relationships. In school year 1993-94, respondent was transferred to the pretrial detention center of the Grand Park Career Center where he served as a guidance counselor. Before his transfer, respondent was notified by letter dated July 23, 1993, that his next performance report would be due by September 10, 1993. He was also told in a telephone call with the EPC executive director on August 2, 1993, that he should “call if you are reassigned and have a different principal.” On February 14, 1994, respondent was advised by letter from the EPC that the first two reports of his performance during school year 1993-94 had been due on September 10 and December 10, 1993, but had not yet been filed. He was told to arrange for their submission by March 1, 1994. When the reports were still not filed by the latter part of May, the EPC’s executive director made inquiry with respondent’s former principal and learned for the first time that respondent had been transferred to Grand Park Career Center. She then contacted the principal of Grand Park Career Center, Dr. McDuffie, and asked that he forward a copy of respondent’s annual evalution. Until that time, Dr. McDuffie did not know that respondent was on probation or that performance reports were to be filed. By failing to advise the EPC of his new employer, and to file his performance reports on a timely basis, respondent violated the terms of his probation. He also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. In an undated letter sent to the EPC several months later, respondent stated that due to a “very busy (school) year,” he “forgot to get the necessary reports completed,” and this oversight “was not intentional.” This explanation, however, is not found to be credible or a valid excuse for his conduct. He also advised that he had been reassigned to the Fort Caroline Middle School for school year 1994-95. In school year 1994-95, respondent again failed to have his immediate supervisor, Patrick T. Ahern, file the quarterly performance reports. Notwithstanding this omission, in a letter to the EPC dated May 17, 1995, respondent asked if any reports for the year had been filed. He also represented that he had met with Ahern on January 5, 1995, regarding the need for such reports. At hearing, however, Ahern established that until he was contacted by the EPC at the end of the school year, and asked to provide a report, he was not aware of the fact that respondent was on probation or that quarterly performance reports were to be filed. By failing to file the required reports during the school year, respondent violated the terms of his probation. Respondent also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. No evidence was presented on the issue of whether respondent’s personal conduct has seriously reduced his effectiveness as a teacher. At hearing, respondent suggested that because his overall evaluations in school years 1993-94 and 1994-95 were satisfactory, he fulfilled the terms of his probation. However, the performance of his duties in a competent, professional manner was but one of several conditions imposed by the EPC. Respondent also suggested that he was required to notify the EPC of new job assignments only if he accepted a job outside of the Duval County School District. This interpretation, however, is not reasonable and is contrary to the written instructions given to him in the EPC’s letter dated January 19, 1993, and verbal instructions given to him on August 2, 1993, by the EPC executive director. Respondent further suggested that he was told by someone at EPC that an annual performance report would satisfy all reporting requirements. This assertion, however, is not supported by the evidence. Finally, as to his felony conviction, respondent contended that until his appeal is concluded, the EPC should not pursue this action. For the reasons given in the Conclusions of Law portion of this order, this contention is found to be without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Sections 231.28(1)(a), (c), and (i), Florida Statutes, and Rules 6B- 1.006(5)(a) and (o), Florida Administrative Code, and that his teaching certificate be permanently revoked.DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros, Esquire 131 North Gadsden Street Tallahassee, Florida 32301-1507 Reese Marshall, Esquire 214 Ashley Street Jacksonville, Florida 32202-3120 Michael H. Olenick, Esquire Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
