02-002820 Miami-Dade County School Board vs. Patricia A. Holmes Status: Closed Recommended Order on Tuesday, December 10, 2002.

Summary: Employment of educational support employee should be terminated for insubordination, excessive absenteeism, and willful neglect of duties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2820

)

PATRICIA A. HOLMES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing on

September 11, 2002, in Miami, Florida, before Administrative Law

Judge Claude B. Arrington, of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Eric J. Cvelbar, Esquire

1181 Northwest 57th Street

Miami, Florida 33127

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent's

employment as a school monitor on the grounds alleged in the

Notice of Specific Charges filed September 5, 2002.

PRELIMINARY STATEMENT

At the times pertinent to t his proceeding, Petitioner

employed Respondent as a school security monitor and assigned

her to work at Horace Mann Middle School (hereinafter “Horace

Mann”) and at a temporary worksite within the Miami - Dade County

school district. On June 19, 2002, Petit ioner voted to suspend

Respondent's employment without pay and to initiate proceedings

to terminate her employment. Respondent timely requested a

formal hearing on the matter. The matter was transferred to the

Division of Administrative Hearings by lette r dated July 16,

2002, and this proceeding followed.

Petitioner’s Notice of Specific Charges, filed September 5,

2002, set forth certain factual allegations and asserted that

the following constituted cause for its action and its proposed

action: excess ive absenteeism and/or abandonment of position

(Count I); gross insubordination and willful neglect of duty

(Count II); and conduct unbecoming a school board employee in

violation of School Board Rule 6Gx13 - 4A - 1.21 (Count III).

At the final hearing, Petit ioner presented the testimony of

Carolyn Blake (principal of Horace Mann); Reinaldo Benitez

(Executive Director of Petitioner's Office of Professional

Standards); and Susan Lilly (supervisor of Petitioner's payroll

operations). Petitioner offered 15 seque ntially numbered

exhibits, each of which was admitted into evidence. The

undersigned granted Petitioner's unopposed motion to take

official recognition of School Board Rules 6Gx13 - 4A - 1.21

(pertaining to employee conduct) and 6Gx13 - 4E - 1.01, (pertaining

to absences and leaves). Respondent testified on her own

behalf, but she called no other witness and offered no exhibit.

The transcript of the final hearing was filed on

November 1, 2002. Pursuant to Petitioner’s motion, the time for

filing proposed recomme nded orders was extended up to and

including November 27, 2002. Petitioner's Proposed Recommended

Order, filed November 27, 2002, has been duly - considered by the

undersigned in the preparation of this Recommended Order.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was a duly -

constituted school board charged with the duty to operate,

control and supervise all free public schools within the school

district of Miami - Dade County, Florida , pursuant to Section 4B

of Article IX, Constitution of the State of Florida and

Section 230.03, Florida Statutes.

2. At all times material hereto, Petitioner employed

Respondent as a school security monitor and assigned her to work

at Horace Mann, whic h is a public school located within the

school district of Miami - Dade County, and, as will be discussed

below, to a temporary duty location.

3. Respondent is a non - probationary "educational support

employee" within the meaning of Section 231.3605, Flori da

Statutes, which provides, in pertinent part, as follows:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system . . . who by virtue of his or her

position of employment is not required to be

certified by the Department of Education or

district school board pursuant to

s. 231.1725. . . .

(b) "Employee" means any person employed

as an educational support employee.

(c) "Superintendent" means the

superintendent of schools or his or he r

designee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining a greement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective bargaining agreement, or in

district school board rule in cases where a

collective bargaining agreement does not

exist . . .

(c) In the event a superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

4. Respondent’s employment with Petitioner began on

April 12, 1993. At the times material to this proceeding,

Respondent was a member of the United Teachers of Dade (UTD)

collective bargaining unit.

5. On October 22, 2001, Metro - Dade Police arrested

Respondent on charges of aggravated battery and violation of

probation. Respondent remained incarcerated from the date of

her arrest until May 15, 2002. Respondent admitted that she had

engaged in a fight while she wa s on probation and that she had

thereby violated the terms of her probation.

6. Respondent did not report to work between October 22,

2001, and May 15, 2002.

7. Respondent sent a letter to Petitioner dated

December 3, 2001, and addressed "to whom it ma y concern." The

letter reflects that Respondent had previously entered a plea to

a charge of domestic violence for which she had been placed on

probation. It also reflected that that she was in jail after

violating the conditions of her probation by havi ng engaged in a

fight. Respondent's letter represented that she would be

released from jail on February 4, 2002, and makes it clear that

she wanted to retain her employment, if possible.

8. Carolyn Blake was the principal of Horace Mann at the

times ma terial to this proceeding. Ms. Blake learned of

Respondent’s arrest within days of its occurrence. Shortly

thereafter, Ms. Blake forwarded her home telephone number to

Respondent and sent Respondent a message to call her collect

from jail so that she and Respondent could discuss Respondent’s

employment intentions.

9. On December 26, 2001, Respondent placed a collect call

to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the

collect call from Respondent. During the ensuing telephone

conversation Re spondent told Ms. Blake that she would be

released from jail by February 4, 2002, and that she hoped to

return to work. Ms. Blake told Respondent she should consider

resigning from her employment with Petitioner because of the

number of days she had been absent without authorized leave.

10. On January 14, 2002, Ms. Blake attempted to

communicate with Respondent through a memorandum sent to

Respondent's home address. The memorandum reflected that

Respondent had been absent from her worksite since Octobe r 19,

2001, and that the absences had impeded the effective operation

of the worksite. The memorandum requested that Respondent

select from among four options and to notify her worksite within

three days of the date of the notice regarding her employment

intentions. The four options were to (1) notify the worksite of

the date she intended to return to work; (2) apply for leave of

absence; (3) resign; or (4) retire.

11. The January 14, 2002, memorandum, further advised

Respondent that her absences woul d continue to be unauthorized

until she communicated directly with Ms. Blake as to her

employment intentions.

12. Petitioner's leave policies do not permit a leave of

absence for an incarcerated employee. At the times material to

this proceeding, Respon dent was not eligible for a leave of

absence under Petitioner’s leave polices.

13. On March 11, 2002, Respondent was directed to report

to a conference - for - the - record (CFR) scheduled for March 28,

2002, at the School Board’s Office of Professional Standa rds

(OPS) to address, among other things, Respondent’s arrest; her

violation of School Board rules dealing with employee conduct;

her excessive absenteeism; and her future employment status with

Petitioner. The notice that instructed Respondent to attend the

CFR was mailed to Respondent's home address.

14. On March 28, 2002, Respondent was still incarcerated,

and she did not attend the scheduled CFR scheduled for that day

at OPS. On March 28, 2002, a CFR was held at OPS in

Respondent’s absence. At the CFR held on March 28, 2002,

Respondent’s employment history with the School Board was

reviewed, including the number of days that Respondent had been

absent from her worksite, with special emphasis on the number of

days she had been absent without authori zed leave.

15. On March 28, 2002, Ms. Blake recommended that

Respondent’s employment with the School Board be terminated due

to Respondent’s excessive absenteeism and because of the adverse

impact Respondent’s absenteeism was having on the operation of

the school site. As of March 28, 2002, Ms. Blake had received

no communication from Respondent since their telephone

conversation on December 26, 2001. Despite having Ms. Blake’s

home telephone number and knowing that she would accept a

collect call, Res pondent made no effort to contact Ms. Blake

after Respondent learned that she would not be released from

jail on February 4, 2002.

16. By notice dated April 23, 2002, Respondent was

directed to appear on May 8, 2002, at a meeting at OPS to

address the e mployment action that had been recommended by

Ms. Blake. This written directive was sent by mail to

Respondent's home address.

17. As of May 8, 2002, Respondent was still incarcerated.

Because of her incarceration, Respondent did not attend the

meetin g and had not reported to her worksite. On May 8, 2002,

the scheduled meeting was held at OPS. As a result of the

meeting, the Superintendent recommended that the School Board

terminate Respondent's employment and scheduled the

recommendation to be consi dered by the School Board at its

meeting of June 19, 2002.

18. On May 16, 2002, the day after she was released from

jail on May 15, 2002, Respondent called Ms. Blake, who

instructed her to meet with an administrator at the regional

office. Respondent com plied with that directive and was ordered

by the administrator to report to an alternative work site

pending the School Board’s action on the recommendation to

terminate her employment. Respondent refused to comply with the

order to report to an alternate worksite because she did not

want to jeopardize her claim for unemployment compensation

benefits.

19. From October 22, 2001, through May 15, 2002,

Respondent was incarcerated and was absent from work without

authority. From May 16, 2002, through June 19, 2002, Respondent

was absent without authority and either failed or refused to

report to work. For the school year 2001 - 2002, Respondent

accumulated 142 unauthorized absences.

20. On June 19, 2002, the School Board suspended

Respondent and initiated dismissal proceedings against

Respondent on the following grounds: excessive absenteeism

and/or abandonment of position; willful neglect of duty; and

violation of School Board rules dealing with employee conduct.

21. Respondent’s family received Ms. Blak e’s memorandum

and the notices of scheduled meetings that were mailed by

Petitioner to Respondent’s home address while Respondent was

incarcerated. Respondent testified that she did not see the

memorandum and notices until after she was released from jail .

22. There was no justification for Respondent’s failure to

contact Ms. Blake after Respondent learned she would not be

released from jail on February 4, 2002. There was no

justification for Respondent's failure to attempt to comply with

Petitioner's leave policies.

23. There was no justification for Respondent’s refusal to

report to the alternate worksite as instructed by the

administrator at the regional office.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof pursuant to Sections 120.569 and 231.3605, Florida

Statutes.

25. Respondent is a non - probationary educational support

employee within the meaning of Section 231.3605(1)(a), Florida

Statutes. Pursuant to Section 231.3605(2)(b), Florida Statutes,

Petitioner has the authority to terminate Respondent’s

employment for the grounds set forth in the applicable

collective bargaining agreement, which is the collective

bargaining agreement between Petitioner and th e UTD. The School

Board has the burden of proving the allegations in the Notice of

Specific Charges by a preponderance of the evidence. Allen v.

School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Lake County , 56 9 So. 2d 883

(Fla. 3d DCA 1990). The applicable collective bargaining

agreement does not impose a more stringent burden of proof on

the School Board.

26. Article XXI, Section 3(D), of the UTD labor contract

provides that the employment of an educationa l support employee

may be terminated for just cause as follows:

(D) . . . Just cause includes, but is not

limited to, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, immorality, and/or

conviction of a crime involving moral

turpitude. Such charges are defined in

State Board Rule 6B - 4.009.

27. School Board Rule 6Gx13 - 4A - 1.21 states in pertinent

part that:

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.

28. Rule 6B - 4.009(4), Florida Administrative Code,

conta ins the following definitions that must be considered in

determining whether Respondent is guilty of gross

insubordination or willful neglect of duties:

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing inte ntional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

29. Section 231.44, Florida Statutes, a school board to

terminate the employment of an employee who is willfully absent

from employment without authori zed leave, as follows:

Any district school board employee who is

willfully absent from duty without leave

shall forfeit compensation for the time of

such absence, and his or her employment

shall be subject to termination by the

school board.

30. Peti tioner established by the requisite evidentiary

burden that Respondent was guilty of gross insubordination,

willful neglect of duties, and excessive absenteeism by proving

that Respondent was absent without authorized leave for 142 days

during the 2001 - 200 2 school year; that Respondent failed to

comply with leave procedures; failed to keep her supervisor

advised as to her incarceration status; and refused her duty

assignment after her release from jail.

31. Respondent failed to attend the conferences sch eduled

at OPS because her incarceration prevented her attendance.

Consequently, her failure to attend the meetings was not an

intentional refusal to comply with Petitioner's directives, and

that failure does not constitute gross insubordination.

32. Pe titioner established that Respondent violated School

Board Rule 6Gx13 - 4A - 1.21, by fighting while she was on probation

for aggravated battery as alleged in Count III of the Notice of

Specific Charges. 1/ However, Petitioner failed to establish

that the vi olation set forth in Count III constituted just cause

to terminate Respondent's employment independent of Counts I and

II. Petitioner offered no persuasive evidence and no plausible

argument for the proposition that Respondent's conduct -- which

occurred off school premises and did not involve an act of moral

turpitude or reflect negatively on the School District --

constituted just cause to terminate her employment.

RECOMMENDATION

Based upon the foregoing findings of act and conclusions of

law, it is RE COMMENDED that Petitioner enter a final order

adopting the Findings of Facts and Conclusions of Law set forth

herein. It is further RECOMMENDED that the final order find

Respondent guilty of excessive absenteeism, gross

insubordination, and willful neglec t of duty as alleged in

Counts I and II of the Notice of Specific Charges. It is

further RECOMMENDED that the final order sustain Respondent's

suspension without pay and terminate her employment as a school

monitor.

DONE AND ENTERED this 10th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of December, 2002.

ENDNOTE

1/ Petitioner did not allege and did not prove that Respondent

was guilt y of misconduct in office as that term is used in the

UTD contract. Misconduct in office is defined by Rule 6B -

4.009(3), Florida Administrative Code, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

COP IES FURNISHED:

Eric J. Cvelbar, Esquire

1181 Northwest 57th Street

Miami, Florida 33127

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent

Miami - Da de County School Board

1450 Northeast Second Avenue

Suite 912

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.