03-003515 Miami-Dade County School Board vs. Jimmie Alvin Status: Closed Recommended Order on Friday, March 19, 2004.

Summary: Petitioner failed to carry its burden of proving the alleged grounds for terminating Respondent`s employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3515

)

JIMMIE ALVIN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case ca me before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

December 15, 2003, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Jimmie Alvin, pro se

916 West 42nd Street, No. 8

Miami Beach, Florida 33140

STATEMENT OF THE ISSUE

The issue in this ca se is whether Respondent, a

noninstructional employee of Petitioner's, should be fired.

PRELIMINARY STATEMENT

By letter dated September 11, 2003, Respondent Jimmie Alvin

was informed that Petitioner Miami - Dade County School Board had

suspended him from hi s job as a School Security Monitor and

initiated dismissal proceedings against him. As grounds for

terminating Mr. Alvin's employment, Petitioner charged him with

excessive absenteeism, engaging in an improper employee - student

relationship, and being conv icted of a crime involving moral

turpitude.

Soon thereafter, Mr. Alvin requested a formal hearing. On

September 26, 2003, the matter was referred to the Division of

Administrative Hearings, where it was assigned to an

Administrative Law Judge.

The un dersigned convened the final hearing, as scheduled,

on December 15, 2003. Petitioner presented the following

witnesses during its case - in - chief: Jeanne Friedman, school

principal; Ishmael Samuel, school detective; and Isabel Siblesz,

administrator in the Office of Professional Standards.

Petitioner also called Mr. Alvin as an adverse witness.

Finally, Petitioner offered Petitioner's Exhibits 1 - 4, which

were received in evidence.

Respondent testified on his own behalf and called no other

witnesses. He offered Respondent's Exhibits 1 and 2, which were

admitted.

The final hearing transcript was filed on January 6, 2004.

Petitioner filed a Proposed Recommended Order before the

deadline established at the close of the hearing, which was

February 16, 2004. Respondent did not file any post - hearing

papers.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

Material Historical Facts

1. At all times material to this case, Respondent Jimmie

Alvin ( "Alvin") was a School Security Monitor in the Miami - Dade

County School District ("District"). 1 From 1989 until September

2003, when Petitioner Miami - Dade County School Board ("Board")

suspended him without pay, Alvin worked at Miami Beach Senior

High Scho ol.

2. During the 2001 - 02 school year, Alvin failed to show up

for work without authorization at least twice, and he was tardy

some 28 times. Alvin was disciplined for this poor performance

at a conference - for - the - record held on April 25, 2002.

3. Alvin's attendance improved thereafter, and during the

2002 - 03 school year, he was late for work just six times. Other

problems arose, however.

4. In September 2002, a female student accused Alvin of

having touched her arm inappropriately while, allegedl y,

simultaneously calling her a "whore" in front of others.

Following the student's complaint, the District charged Alvin

with violating the School Board Rule against improper employee -

student relationships. School detectives investigated the

charge and found it "substantiated" on conflicting evidence.

5. At the final hearing in this case, however, Alvin

credibly denied the allegations. For its part, the Board

offered no persuasive, competent, nonhearsay evidence to prove

that Alvin actually committed the acts of which the female

student had accused him. Thus, it is determined as a matter of

ultimate fact that the evidence fails to establish Alvin's guilt

with regard to the charge of engaging in an improper employee -

student relationship.

6. On March 3, 2003, Alvin was arrested and charged with

possession of cocaine and marijuana with intent to sell. On

April 24, 2003, Alvin pleaded "no contest" to the criminal

charge and was sentenced to one year's probation.

7. At a conference - for - the - record on M ay 6, 2003, Alvin

was notified that the District would review information

concerning his past attendance problems, the alleged improper

relationship with a student, and his recent criminal conviction,

to determine an appropriate disciplinary response.

8. At its regularly scheduled meeting on September 10,

2003, the Board suspended Alvin without pay pending the

termination of his employment for just cause.

9. At all times material, Alvin was a member of United

Teachers of Dade ("UTD"), a teachers' union. The conditions of

Alvin's employment were governed by a collective bargaining

agreement referred to in the record as the "UTD Contract." 2

Ultimate Factual Determinations

10. The undersigned is unable to determine whether, as a

matter of ultimate fact, Alvin should be fired for reasons

stated in the collective bargaining agreement, because the UTD

contract is not in the evidentiary record. 3 Therefore, it is

determined that the Board has failed to carry its burden of

proving the alleged grounds for dism issal by a preponderance of

the evidence.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

12. The Board has the burden of proving the alleged

grounds for dismissal by a preponderance of the evidence.

McNeill v. Pinellas County School Bd. , 678 So. 2d 476 (Fla. 2d

DCA 1996); Allen v. School Bd. of Dade County , 571 So. 2d 568,

569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County , 569

So. 2d 883 (Fla. 3d DCA 1990).

13. The Board is empowered to suspend and dismiss

employees " subject to the requirements of " Chapter 1012, Florida

Statutes. See § 1012.22(1)(f), Fla. Stat. (emphasis added).

14. Pursuant to Secti on 1012.40(2)(b), Florida Statutes,

the employment status of an "educational support employee" such

as Alvin, see endnote 1, must continue "from year to year unless

the district school superintendent terminates the employee for

reasons stated in the collec tive bargaining agreement , or in

district school board rule in cases where a collective

bargaining agreement does not exist . . . ." (Emphasis added).

15. In this case, because a collective bargaining

agreement does exist, Alvin can be terminated only fo r reasons

stated therein. Such "reasons" are matters of fact that the

Board must prove as part of its case - in - chief. Usually this is

done by moving the collective bargaining agreement into

evidence. Here, however, the Board failed at hearing to

introduc e the collective bargaining agreement or offer any other

competent evidence of its terms.

16. The question whether an employee has deviated from "a

standard of conduct is essentially an ultimate finding of fact

clearly within the realm of the hearing offi cer's fact - finding

discretion." Holmes v. Turlington , 480 So. 2d 150, 153 (Fla.

1st DCA 1985). By statute, the UTD Contract, as the applicable

collective bargaining agreement, prescribes the standards

against which the undersigned fact - finder must evalua te Alvin's

conduct, to determine whether he should be fired. Thus, whether

Alvin violated the applicable contractual standard(s) is a

question of ultimate fact to be decided in the context of each

alleged reason for terminating his employment. See McKinn ey v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

17. Without knowing the "reasons stated in the collective

bargaining agreement" as potential grounds for termination, the

undersigned obv iously cannot determine, as a matter of ultimate

fact, whether Alvin should be terminated. To learn what those

reasons are, the undersigned is required to rely " exclusively on

the evidence of record and on matters officially recognized."

See § 120.57(1)( j), Fla. Stat. (emphasis added). Consequently,

unless there is some way for the undersigned, on his own

initiative, 4 to make the relevant contractual terms part of the

evidentiary record, which has been closed for about three months

as of this writing, th e Board's failure to introduce the UTD

Contract (or some competent evidence of its terms 5 ) is fatal to

the Board's case.

18. The undersigned has considered reopening the record

sua sponte , to allow the Board to offer the UTD Contract into

evidence. He has considered also the possibility of taking

official recognition of the UTD Contract on his own motion. The

undersigned assumes without deciding that either of these

alternatives is available to him at his discretion. See Collier

Medical Center, Inc. v . State Dept. of Health and Rehabilitative

Services , 462 So. 2d 83, 86 (Fla. 1st DCA 1985). He has

decided, however, not to exercise this presumed discretion in

favor of the Board, for four reasons.

19. First, as the court made clear in Collier , receivin g

additional evidence (or officially recognizing facts) after the

evidentiary record has been closed is disfavored and should be

avoided. This is because "to allow a party to produce

additional evidence after the conclusion of an administrative

hearing . . . would set in motion a never - ending process of

confrontation and cross - examination, rebuttal and surrebuttal

evidence, a result not contemplated by the Administrative

Procedures [ sic ] Act." Id. 6

20. Second, as the Florida Supreme Court has explained,

"courts should exercise great caution when using judicial

notice. As has been held in this state and elsewhere, judicial

notice is not intended to 'fill the vacuum created by the

failure of a party to prove an essential fact.'" Huff v. State ,

495 So. 2d 145, 151 (Fla. 1986)( quoting Moore v. Choctawhatchee

Electric Co - operative , 196 So. 2d 788, 789 (Fla. 1st DCA 1967)).

No less caution should be exercised in deciding whether to take

official recognition, sua sponte , of a fact essential to one

party's case .

21. Third, the Board will not be authorized to "reopen the

record, receive additional evidence and make additional

findings" when this case is again before the agency for the

purpose of entering the final order. See Lawnwood Medical

Center, Inc. v. Age ncy for Health Care Administration , 678 So.

2d 421, 425 (Fla. 1st DCA 1996), rev. denied , 690 So. 2d 1299

(Fla. 1997). Nor will the Board be allowed to officially

recognize the UTD Contract, because "[o]fficial recognition is

not a device for agencies to circumvent the hearing officer's

findings of fact by building a new record on which to make

findings." Id. Given these circumstances, the undersigned is

reluctant to take a discretionary action on his own motion that

would look to any objective observer like bending - over - backwards

to rescue the Board from its failure to introduce sufficient

evidence at hearing.

22. Finally, it is concluded that giving the Board a

mulligan here would require the undersigned improperly to assume

a patently adversarial pos ture vis - à - vis Alvin. 7 Like it or not,

in the American system of justice, neutral judges should not be

about the business of thinking up creative ways to excuse a

clear failure of proof at the expense of the party who stands to

benefit from such failure, even where doing so might permit the

judge to decide the case the way it "ought" to be decided.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order:

(a) exonerating Alvin o f all charges brought against him in this

proceeding; (b) providing that Alvin be immediately reinstated

to the position from which he was suspended without pay; and (c)

awarding Alvin back salary, plus benefits, that accrued during

the suspension period, together with interest thereon at the

statutory rate.

DONE AND ENTERED this 19th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hea rings

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 19th day of March, 2004.

ENDNOTES

1 / It is undisputed that Alvin was an "educational support

employee" as that term is defined in Section 1012.40(1)(a), Fla.

Stat.

2 / Alvin was accompanied by a union representative at the

conferences - for - the - record mentioned in the text. UTD did not,

however, provide a lawyer for Alvin in connection with the

instant procee ding.

3 / In fact, the UTD contract is not in the larger record of the

case, either. See § 120.57(1)(f), Fla. Stat. (enumerating the

matters of which the "record in a case" is composed).

4 / The Board, to be clear, has not asked to supplement the

record .

5 / As was his right, Alvin did not stipulate to, or voluntarily

make any admissions regarding, or gratuitously deny the terms of

the UTD Contract. This does not appear to have been a

calculated strategy on Alvin's part; indeed, his unschooled

"defense " consisted primarily of pleading for mercy and a

"second chance." It was not Alvin's burden to make an issue out

of the UTD Contract, however, and so there is absolutely no

basis for finding, somehow, that the terms of the collective

bargaining agreement (which are unknown to the undersigned) were

"undisputed" by the parties.

6 / It is immaterial that in this case reopening the record

probably would not entail such a "never - ending process," as

Alvin, a nonlawyer, would be unlikely to mount a vigorous att ack

on the newly received evidence. The principle holds

regardless —— and Alvin is entitled to be treated no differently

than if he were represented by the finest lawyer in the state.

7 / Anyone who doubts this should ponder how he or she would view

the i mpartiality of a judge who would do for a litigating

opponent that which helping the Board here would require of the

undersigned.

COPIES FURNISHED :

Jimmie Alvin

916 West 42nd Street, No. 8

Miami Beach, Florida 33140

Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Daniel J. Woodring, General Coun sel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Merrett R. Stierheim

In terim Superintendent

Miami - Dade County School Board

1450 NE Second Avenue, No. 912

Miami, Florida 33132 - 1394

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.