02-000835 Miami-Dade County School Board vs. Benita A. Roberts Status: Closed Recommended Order on Friday, October 31, 2003.

Summary: A supervisor`s falsification of payroll records constitutes just cause for the termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0835

)

BENITA A. ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice a formal hearing was held in this case

on June 9, 2003, by video teleconference with the parties

appearing from Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For P etitioner: Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Evan Jay Byer, Esquire

Evan Jay Bye r, P.A.

1999 Northeast 150th Street, Suite 102

North Miami, Florida 33181

STATEMENT OF THE ISSUE

Whether the Respondent, Benita A. Roberts (Respondent),

committed the violations alleged in the Notice of Specifi c

Charges and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on February 13, 2002, when the Petitioner,

School Board of Miami - Dade County, Florida, took action to

suspend and initiate dismissal proceedings against the

Respo ndent. More specifically, as alleged in the Notice of

Specific Charges, the Petitioner maintains that the Respondent

violated four provisions of law by authorizing payroll for an

employee under her supervision while the employee was

incarcerated. The Res pondent denied the allegations and

requested a formal administrative hearing to contest her

dismissal from employment.

The case was referred to the Division of Administrative

Hearings for formal proceedings on February 25, 2002. The case

was first schedu led for hearing for May 20 - 21, 2002. Thereafter

the matter was continued on several occasions until it was

ultimately heard on June 9, 2003.

At the hearing, the Petitioner presented testimony from

Barbara Sozie, the secretary/treasurer, at Natural Bridge

Elementary School (Natural Bridge); Jorge L. Garcia, the former

principal at Natural Bridge; Julio Miranda, district director in

charge of compliance audits and investigative audits; and

Barbara Moss, district director for the office of professional

stand ards. The Petitioner's Exhibits numbered 1 - 15 were

admitted into evidence. Official recognition was sought and

taken for those items identified as Petitioner's Exhibits 1

through 4. The Respondent testified in her own behalf.

The transcript was filed w ith the Division of

Administrative Hearings on August 27, 2003. The parties had

initially requested 20 days to file their proposed recommended

orders. On September 16, 2003, the Petitioner filed an

Unopposed Motion for Enlargement of Time to File Propose d

Recommended Orders. Such motion was granted and the parties

were granted leave until September 26, 2003, to file their

proposed orders. Both parties filed Proposed Recommended Orders

that have been fully considered in the preparation of this

order.

FIN DINGS OF FACT

1. The Petitioner is the entity charged with the

responsibility under Florida law to operate, control, and

supervise the administration of all public schools within the

Miami - Dade County school district. As such, disciplinary

actions agains t its employees fall within its authority.

2. At all times material to the allegations of this case,

the Respondent was employed by the Petitioner and served as the

school cafeteria manager at Natural Bridge.

3. The Respondent has been continuously emplo yed within

the school district since 1979. She began employment at the age

of 20 and was assigned duties as a pot washer. Later the

Respondent rose through the ranks to the position of baker.

Eventually, after completing training, the Respondent became a

food service manager. Throughout her career she served in

various capacities without prior disciplinary action being taken

against her.

4. In fact, the Respondent received commendations for her

hard work, and her kitchen served as a training place fo r

others. Prior to the incidents complained of herein, the

Respondent had served the school district with distinction. The

Respondent was assigned to Natural Bridge in September of 1992.

5. For many months prior to December 1999, Adrian Ebanks

was emplo yed at Natural Bridge as a part - time cafeteria worker.

Mr. Ebanks was limited to 30 hours per week or 60 hours per pay

period for compensatory purposes. That is, as his manager, the

Respondent was supposed to pay Mr. Ebanks for no more than 60

hours per pay period.

6. To arrive at the 60 hours, Mr. Ebanks was scheduled to

work no more than 6 hours per day for the 10 days constituting

the pay period. According to the Respondent, Mr. Ebanks

exceeded the 60 hours numerous weeks but could only be paid for

t he 60 hours he was approved to work. According to the

Respondent, Mr. Ebanks was a dedicated and hard - working

cafeteria helper.

7. Between December 23, 1999 and June 16, 2000, Mr. Ebanks

was incarcerated and did not report to Natural Bridge to perform

h is duties. Nevertheless, because the Respondent believed he

was owed time for work performed prior to that time, the

Respondent continued to complete the payroll record for

Mr. Ebanks as if he had worked on the dates indicated. It is

undisputed he did no t work during the period December 23 through

June 16, 2000.

8. The Respondent was not authorized to complete the

payroll record for Mr. Ebanks as she did. If, in fact,

Mr. Ebanks was owed for additional time worked but not

compensated, she should have co ntacted a supervisor to approve

either additional pay for the hours as they accrued or overtime.

In truth, Mr. Ebanks was not eligible for overtime pay.

9. The Respondent sought to reward dedicated cafeteria

workers who were, in her judgment, underpaid a nd hardworking.

The system did not allow her to give additional pay beyond the

time allocated to part - time workers. Regardless, the Respondent

attempted to compensate such employees but did not keep a formal

log that would demonstrate the actual hours wo rked that exceeded

the 60 hours that could be compensated. In fact, despite her

assessment that Mr. Ebanks was owed for the hours he was paid

for while incarcerated, there is no documentation to establish

that such hours fairly related to unpaid overtime logged prior

to his incarceration. Additionally, no cafeteria worker who

might have corroborated the Respondent's conclusions testified

with regard to the matter.

10. Moreover, the Respondent did not bring the problem of

how to fairly compensate her empl oyees to the attention of

anyone until after the allegations of the instant case came to

light. And, unfortunately, that was not until a year after the

incidents complained of in this case. Not until June of 2001

did the principal become aware of the pay roll issues. At that

time an individual complained to the principal that the

Respondent had paid Mr. Ebanks while he was incarcerated. The

investigation of that complaint led to the instant action, a

criminal investigation of the matter, an audit, and di sciplinary

action against Mr. Ebanks and the Respondent.

11. As a result of the payroll records submitted by the

Respondent, the Petitioner improperly paid Mr. Ebanks $3,255.48.

12. A conference for the record was conducted with the

Respondent on Novembe r 7, 2001. At that time, the Respondent

admitted she had submitted the payroll records for Mr. Ebanks

while he was incarcerated.

13. On February 13, 2002, the Petitioner took action to

suspend the Respondent and to initiate dismissal proceedings

agains t her for just cause. The "just cause" was alleged to be

deficient and/or non - performance of job responsibilities,

misconduct in office, lack of good moral character, and

violation of School Board rules dealing with employee conduct.

14. On March 5, 200 2, the Respondent pled guilty to

official misconduct, petit theft, and grand theft. All of the

charges arose from the findings set forth above regarding the

completion of the payroll records for Mr. Ebanks.

15. As a result of the plea entered by the Resp ondent, the

court imposed 18 months of probation and required the Respondent

to remit fees and costs associated with the prosecution of the

case. It is unknown as to whether either Mr. Ebanks or the

Respondent made restitution for the $3,255.48 paid to Mr . Ebanks

during his incarceration. It is certain the Respondent did not

acknowledge that her completion of the time records was contrary

to school board guidelines.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Fla. Stat. §§ 120.569, 120.57(1).

17. The Petitioner bears the burden of proof in this case

to establish the factual claims against this Respondent. It has

met that burden.

18. Florida law autho rizes the Petitioner to take

disciplinary actions against its employees when the situation

merits such action. See Fla. Stat. § 447.209.

19. Additionally, the labor contract between this employer

and its workers provided for disciplinary action arising from

the employee's "performance or non - performance of job

responsibilities." See Article XI, Section 4 of the AFSCME

Labor Contract (Petitioner's Exhibit 4).

20. Thus, the Petitioner may discipline employees who fail

to perform their job responsibilit ies as required by their job

descriptions. In this case, the Respondent was not authorized

to compensate Mr. Ebanks as she did, even if the hours had been

worked. At best, in her effort to do right by a hardworking,

dedicated employee, the Respondent vio lated the Petitioner's

protocols for completing payroll records and compensating part -

time employees. At worst, the Respondent conspired to divert

payroll monies to an individual who was incarcerated and who did

not work the hours depicted by the payroll record. In either

instance, the Respondent failed or refused to follow payroll

protocols that she knew were applicable to the logs she

submitted. As such, the Respondent failed to perform her duties

as required by her employer.

21. The Respondent also f ailed to conduct herself in a

manner that reflected credit upon herself and the school system.

Clearly the Respondent knew that Mr. Ebanks did not work during

the period of his incarceration. Non - instructional personnel of

a school district must conform their behaviors to avoid bringing

the school district into public disrepute. In this case, the

Respondent was charged and plead guilty to crimes directly

related to the false payroll records. Such conduct cannot be

said to result in a public perception t hat she is of the highest

ethical character. To the contrary, it suggests she has

admitted to being a thief. The misconduct underlying such

admission constitutes just cause for termination of her

employment.

22. As to the Respondent's assertion that te rmination is

"wholly disproportionate to the alleged offense," it must be

recognized that the Respondent did not recognize that she was

violating policy by falsely completing the payroll records. The

Respondent did not seek guidance or approval for any of the acts

complained of in this case. She unilaterally chose to complete

the time records as she did. That level of indifference to the

protocols for time keeping establishes the Respondent lacks the

judgment to perform supervisory duties.

RECOMMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Miami - Dade

County, Florida, enter a final order affirming the decision to

suspend and dismiss the Respondent from her position as a

cafeteria mana ger with the school district.

DONE AND ENTERED this 31st day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. PARR ISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 2003.

COPIES FURNISHED :

Merrett R. Stierheim

Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Av enue, No. 912

Miami, Florida 32312 - 1394

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Evan Jay Byer, Esquire

Evan Jay Byer, P.A.

1999 Northeast 150th Street

S uite 102

North Miami, Florida 33181

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.