04-000214 Miami-Dade County School Board vs. Mekishia M. Rolle Status: Closed Recommended Order on Friday, April 22, 2005.

Summary: Respondent handled money in violation of a directive and policy, and directed employees to not ring-up sales, thereby subjecting herself to a penalty of dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 04 - 0214

)

MEKISHIA M. ROLLE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on Septem ber 28 - 29, 2004, in Miami, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Marci A.R. Rosenthal, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr., Esquire

AFSCME Florida Council 79

99 Northwest 183 r d Street

Suite 224

North Miami, Florida 33169

STATEMENT OF THE ISSUE

Whether the Respondent, Mekishia M. Rolle (Respondent),

committed the acts alleged, and should be disciplined as

outlined in the Amended Noti ce of Specific Charges dated April

30, 2004.

PRELIMINARY STATEMENT

On January 14, 2004, the Petitioner, School Board of

Miami - Dade County, Florida (Petitioner or School District),

initiated action to suspend and terminate the Respondent’s

employment with the School District. At that time the

Petitioner alleged the Respondent had violated School Board

rules and that the Petitioner had just cause for the proposed

action. On December 23, 2003, the Respondent was advised of

the impending School Board action and requested a formal

hearing to contest the allegations.

The Petitioner filed a Notice of Specific Charges on

March 24, 2004, that outlined the violations and deficient

performance information pertaining to the Respondent. A

subsequent request to amen d the charges was granted. On

April 29, 2004, the Petitioner outlined with greater

specificity the allegations against the Respondent. Such

allegations included deficient job performance,

insubordination, and violations of Food and Nutrition Service

rule s. More specifically, the Petitioner claimed that the

Respondent had directed subordinates to sell snack items

without ringing - up the sales, had directed such subordinates

to keep the cash drawer open to complete snack sales, and had

handled money in viol ation of policy and a directive not to do

so. The Respondent requested that provisions of the charges

be struck. Although ruling on such motion was reserved at the

time, it is now denied.

At the hearing, the Petitioner requested that official

recognitio n be taken of the items identified as Petitioner’s

Exhibits 1 - 4. That request was granted. Petitioner’s

Exhibits 9 - 11, 18, 21 - 23 were admitted into evidence. The

Respondent’s Exhibits 1 - 4 were also received in evidence.

The transcript was filed on De cember 29, 2004. It

correctly lists the persons called to testify in this matter

and chronicles the testimony offered. Requests for extensions

of the time to file proposed recommended orders were granted.

Both sides timely filed Proposed Recommended Ord ers that have

been fully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is the state entity charged with the

responsibility of operating and supervising the public schools

within the Miami - Dade County School Di strict. As such it is

responsible for all personnel matters for those persons

employed by the School District.

2. At all times material to the allegations of this

case, the Respondent was an employee of the School District.

The Respondent was responsibl e for the supervision of the

satellite cafeteria located at Martin Luther King Elementary

School. The Respondent was designated a food service

satellite assistant.

3. That designation meant the Respondent was to

supervise the cafeteria workers assigned to the satellite

facility. At all times material to this case, there were four

food service workers to be supervised by the Respondent. Some

of the cafeteria workers were required to serve on the cash

register collecting monies from the students. Some of the

workers did not handle money.

4. Martin Luther King Elementary School (MLK) was

designated a “satellite cafeteria” because it received

prepared foods from another school (Holmes Elementary) for

service to the MLK students. The kitchen facility at MLK was

for service of the foods, not preparation. Typically, the

prepared foods were transported from the main kitchen where

they were prepared (at Holmes Elementary) to the MLK

cafeteria. Prepackaged snacks that were placed on the service

line separate from the a la carte items were also transported

to the MLK site from Holmes Elementary. Students were free to

purchase any item from the food service line.

5. Snacks identified in this record as “Combos” were a

popular item on the service line. Student s wishing to

purchase Combos typically paid cash to the cafeteria worker at

the cash register and received the item.

6. As to the prepared food, typically a driver would

deliver the food from Holmes Elementary during the morning

hours so that the cafeteri a workers at MLK could ready the

service line.

7. As to the prepackaged snack items, typically the

satellite assistant, the Respondent, would pick up the snack

items at Holmes Elementary and transport them to MLK. A sign -

out sheet posted at the pantry closet at Holmes Elementary was

to track the snack items Respondent removed. For the

pertinent time at issue in this case, the sign - out sheet(s) is

missing. According to Ms. Solomon, the food service manager

at Holmes who was also the Respondent’s superv isor, the last

person with the snack sign - out sheet was the Respondent. Ms.

Solomon stated the Respondent borrowed the sign - out sheet to

make a copy of it. It has not been located since.

8. This case came to the Petitioner’s attention because

of an inte rnal audit of the MLK satellite cafeteria. It arose

because food service workers who worked the cash register were

uncomfortable with the procedure the Respondent instituted.

9. While Ms. Inman was assigned to the cash register,

the Respondent instruct ed her to stop ringing - up the snack

sales. Under normal procedure, when a student seeks to

purchase a snack item, the cashier is supposed to enter the

item on the register, put the money in the drawer when it

opens, offer change if appropriate, push the “ next” button,

and close the register. Each transaction is then entered into

the system. Instead of the foregoing system, the Respondent

told Ms. Inman to just keep the drawer open between snack

sales. Ms. Inman was to sell the snack, take the money, mak e

change if necessary, but was to leave the drawer open.

10. Similarly, when Ms. Preston replaced Ms. Inman on

the cash register, the Respondent directed Ms. Preston to do

the same. That is, to make the snack sales but to keep the

drawer open.

11. The credible evidence from all four MLK cafeteria

workers supports the finding that the Respondent directed the

cashier to not ring - up snack sales. Both cashiers were

persuasive and credible that the Respondent had given them

that directive. The other two w orkers (who were not cashiers)

also heard Respondent direct the cashiers not to ring up the

snack sales.

12. The situation was such that Ms. Preston became

concerned about the “open drawer” directive. She confided in

a teacher at the school who took the matter to an assistant

principal. Thus launched the inquiry in to the satellite

cafeteria.

13. The Petitioner’s auditing department attempted to

perform an audit of the snack sales. There was conflicting

evidence regarding the number of snack products t hat were

removed from the Holmes Elementary pantry. Ms. Solomon could

not confirm the number and the sign out sheet was not

available. It is certain that the Combos were not adequately

tracked from the Holmes Elementary through sales at MLK.

14. When qu estioned during the audit of the Combo sales,

Ms. Solomon stated that she believed the Respondent took 36

Combo packages per day to MLK. If so, after subtracting the

Combos remaining on the serving line, the sales total could

have been mathematically calc ulated. When the auditor asked

the Respondent to explain why the number of Combos remaining

on the serving line plus the ones sold did not total the

number allegedly taken from Holmes Elementary, she could

provide no information. During the audit the Res pondent did

not deny that 36 Combos per day were taken from Holmes

Elementary to be sold at MLK.

15. A second inquiry into the MLK cafeteria questioned

the procedure for counting cash receipts at the end of the

day. According to School Board policy, the cafeteria

assistant (in this case the Respondent) was not supposed to

handle the cash taken into the register each day. Instead,

two other cafeteria employees were to take the money, count

it, prepare a deposit slip, and have the assistant sign off on

the deposit. The actual handling of the funds rests with the

verifying employees.

16. In this case, the Respondent routinely took the cash

from the register, counted it herself, prepared the deposit

slip, and had other cafeteria workers sign off on it as if the

correct procedure had been followed.

17. More critical to this issue, however, is the fact

that the Respondent had been directed specifically not to

handle monies. In light of a past matter, not at issue in

this cause, the Respondent knew or shou ld have known she was

strictly prohibited from handling the cash coming into the MLK

cafeteria.

She violated the terms of the directive given to her by taking

the monies to the rear of the cafeteria and counting it.

18. At a conference - for - the - record, al l of the issues

described above were discussed with the Respondent. The

Respondent was fully apprised of all of the factual

allegations that support the instant action.

19. Moreover, the Respondent was provided with an

opportunity to explain any of the factual matters.

20. The Respondent has argued that the subordinate

cafeteria workers were somehow unhappy with Respondent

becoming their supervisor. The Respondent believes that the

workers had, in effect, run their own cafeteria for so long

that her s upervision efforts would be rejected. Such argument

is not supported by the weight of credible evidence in this

cause.

21. Secondly, the Respondent argued that the subordinate

cafeteria workers were unhappy because she stopped a covered

dish program they had been running. The covered - dish program

worked as follows: the cafeteria workers brought in food

cooked at home that was then shared with MLK staff, who

contributed to their cash kitty. The weight of the credible

evidence discounts any dissatisfactio n among the cafeteria

workers when the covered dish program was halted. Again, the

Respondent’s effort to discredit the testimony of the workers

based upon this claim was without merit.

22. The Respondent offered no credible explanation for

what happened to the snack sign - out sheet, for why she

instructed the cashiers to keep the drawer open, or for why

she handled monies after she had been told not to do so.

There were sufficient cafeteria workers available to assist

the Respondent. Had she not had suf ficient numbers, her

supervisor, Ms. Solomon, could easily make someone available

from Holmes Elementary to do the work.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

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

(2004).

24. The Petitioner bears the burden of proof in this

matter to establish by a preponderance of the evidence that

the Respondent committed the acts complained of. The

Respondent, however, disputes that burden. It is concluded,

that even if the burden were by a clear and convincing

standard (a conclusion not reached herein), the Petitioner has

met that higher standard of proof.

25. The Respondent maintains that the nature of the

allegations rela te to the standard of proof that should be

applied in this case. The Respondent has couched the

allegations in terms of criminal wrongdoing. Accordingly, the

Respondent asserts that the allegations are “penal” and should

therefore be subject to a higher burden of proof. The case

law, however, does not support that conclusion.

26. To the contrary, an accurate reading of case law

provides that the gravity of the penalty that may be applied

dictates the standard of proof to be used. For example, in

Ferr is v. Turlington , 510 So. 2d 292 (Fla. 1987), the court

found that the revocation of a professional license is such a

serious consequence, with results of such magnitude, that the

higher standard of proof is warranted. In contrast, numerous

decisions have found that when loss of employment is the

consequence (as herein), the burden of proof need only be by a

preponderance of the evidence. See , e.g. , McNeil v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo

v. School Board of Dade Co unty , 569 So. 2d 883 (Fla. 3rd DCA

1990).

27. Additionally, it must be noted that the allegations

against the Respondent do not charge the employee with theft.

The allegations stem from the directives to cafeteria staff to

keep the cash register open a nd to not ring snacks sales.

Further, the Respondent handled funds collected after a

directive advised her not to do so. The Petitioner did not

allege theft and, in fact, has not proven the Respondent stole

any item or money. Due to the Respondent’s con duct in this

case, it would have been difficult to prove theft if alleged.

28. Section 1012.22, Florida Statutes (2004), provides,

in pertinent part:

-- Public school personnel; powers and

duties of the district school board. -- The

district school board sh all:

(1) Designate positions to be filled,

prescribe qualifications for those

positions, and provide for the appointment,

compensation, promotion, suspension, and

dismissal of employees as follows, subject

to the requirements of this chapter:

* * *

(f ) Suspension, dismissal, and return to

annual contract status . -- The district

school board shall suspend, dismiss, or

return to annual contract members of the

instructional staff and other school

employees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed, or returned to

annual contract except as provided in this

chapter.

29. The Petitioner proved that the Respondent failed to

obey a directive that was issued to her. Simply put, the

Respondent handled money; she knew she was not supposed to do

so. A directive she had previously received told her not to

do so. She admitted to the auditor that she handled money.

She failed to follow the policy for such matters and f ailed to

abide by the directive. The Respondent has not articulated

one credible reason for continuing to handle money. In fact,

under the facts of this case there was no reason for the

Respondent to handle cash.

30. As for the “open drawer” issue, the Petitioner has

demonstrated that the directives to the cashiers to keep the

drawer open during snack sales violated School District rules.

See , e.g. , School Board Rule 6Gx13 - 3E - 1.22. Again, while the

practice may have expedited the snack sales, there was no

valid reason to deviate from the policy and procedure of

closing the

drawer between sales and pressing the “next” feature so that

the transaction would be logged.

31. The contract between the Petitioner and the School

District union employees require s that suspension and

dismissal be for “just cause.” Although that term is not

defined by contract, “just cause” for purposes of this case

should be viewed consistent with the State rules and

regulations governing the criteria for suspension and

dismissal . Therefore, “just cause” must be considered based

upon allegations of incompetency, immorality, misconduct in

office, gross insubordination or willful neglect of duties,

drunkenness, or moral turpitude. See Florida Administrative

Code Rule 6B - 4.009. In this case only misconduct and gross

insubordination or willful neglect of duties apply.

32. The Petitioner has established that the Respondent

failed to comply with the directive not to handle cash (gross

insubordination) and failed to comply with Schoo l District

rules by directing subordinates to keep the cash register open

and not ring - up snack sales (willful neglect of duties and

misconduct).

33. The Respondent’s other arguments pertaining to the

terms of the union contract have been discounted as legally

insufficient. The Respondent’s due process rights have been

protected at each and every turn of this matter. The

Respondent was not compelled to discuss any information with

the auditor, was kept fully apprised of the factual issues

(which she ti mely disputed), and was afforded a full

opportunity to explain or offer information to support her

perception of the issues. The Respondent has not been

“punished twice” for the same offense nor has a final decision

been reached as to whether the instant conclusions should be

made a permanent part of her employment record. In fact, the

Respondent will continue to have a right to challenge, on

appeal if necessary, the decision reached by her employer.

RECOMMENDATION

Based on the foregoing Findings of Fa ct and Conclusions

of Law, it is RECOMMENDED that the decision to suspend and

dismiss the Respondent from her employment with the School

District be affirmed.

DONE AND ENTERED this 22nd day of April, 2005, in

Tallahassee, Leon County, Florida.

S

________ ___________________________

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 22nd day of April, 2005.

COPIES FURNISHED:

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Dan iel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Honorable John L. Winn

Commissioner of Education

1244 Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

Marci A. R. Rosenthal, Esquire

Miami - Dade County School Board

Suite 400

1450 Northeast Second Avenue

Miami, Florida 33132

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 ca se.