04-002249 Miami-Dade County School Board vs. Cynthia Brown Status: Closed Recommended Order on Tuesday, March 22, 2005.

Summary: Petitioner established by preponderance of the evidence that it had grounds to terminate Respondent, a non-instructional employee, for excessive absenteeism.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2249

)

CYNTHIA BROWN, )

)

Respondent. )

_________________________ ________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.57(1), Florida Statutes, on February 16,

2005, by video teleconference at sites in Miami and Tallahassee,

Florida, before Stuart M. Lerner, a du ly - designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Denise Wallace, Esquire

Ignacio J. Vasquez, Student Legal Intern

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent's employment should be terminated for

the reasons set forth in the Notice of Specific Charges.

PRELIMINARY STATEMENT

On June 16, 2004, the Miami - Dade County School Board of

(School Board) suspended Respondent from her position as a

school bus aide and initiated a dismissal proceeding against

her. By letter dated June 14, 2004, Respondent advised the

School Board that she "would like to contest" her proposed

termination. On June 28, 2004, the matter was referred to DOAH

for the assignment of an Administrative Law Judge.

On or about August 3, 2004, the School Board served on

Respondent (by United States Mail) its Notice of Specific

Charges (Notice). The Notice alleged that, "[f]rom March 2003

through March 2004, [Respondent] ha[d] been absent from the

worksite 72 days, 33.5 days LWO [Leave Without Pay

Unauthorized], 29 days Leave Without Pay Autho rized ("LWOA") and

five and half days personal and four days sick." According to

the Notice, Respondent's conduct constituted: "excessive

absenteeism and violation of School Board rule regarding

absences and leaves" (Count I); "willful neglect of duty" ( Count

II); "violation of School Board rule regarding employee

responsibilities and duties" (Count III); and "deficient

performance" (Count IV); and therefore there was "just cause to

warrant [her] dismissal" pursuant to "Articles II and XI of the

AFCSME co ntract."

As noted above, the hearing was held on February 16, 2005. 1

Petitioner was represented at the hearing by counsel and a

certified legal intern. Respondent, on the other hand, did not

make an appearance, either in person or through counsel or a

qualified representative. Two witnesses, George Millar and

Barbara Moss, testified at the hearing. In addition to

Mr. Millar's and Ms. Moss's testimony, five exhibits

(Petitioner's Exhibits 1 through 5) were offered and received

into evidence.

At the cl ose of the taking of evidence, the undersigned, on

the record, established a deadline (ten days from the date of

the filing of the hearing transcript with DOAH) for the filing

of proposed recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on March 10, 2005.

On March 21, 2005, the School Board filed its Proposed

Recommended Order. To date, Respondent has not filed any post -

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing, and the

record as a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) and support facilities in Miami - Dade County.

2. Respondent is e mployed by the School Board as a school

bus aide. She is currently assigned to the John Schee

Transportation Center.

3. Respondent was initially hired by the School Board on

September 8, 1992. She was terminated, effective October 31,

1995, for having b een absent without authorization for three

consecutive days. The School Board rehired Respondent on May 3,

2000, and assigned her to the Northwest Transportation Center.

On October 11, 2002, Respondent was given her current assignment

at the John Schee T ransportation Center.

4. As a school bus aide employed by the School Board,

Respondent is a member of a collective bargaining unit

represented by the American Federation of State, County, and

Municipal Employees, Local 1184 (AFSCME) and covered by a

colle ctive bargaining agreement between the School Board and

AFSCME (AFSCME Contract).

5. Article II, Section 3, of the AFSCME Contract provides,

in pertinent part, as follows:

ARTICLE II - RECOGNITION

SECTION 3. The provisions of this Contract

are not to be interpreted in any way or

manner to change, amend, modify, or in any

other way delimit the exclusive authority of

the School Board and the Superintendent for

the management of the total school system

and any part of the school system. It is

expressly und erstood and agreed that all

rights and responsibilities of the School

Board and Superintendent, as established now

and through subsequent amendment or revision

by constitutional provision, state and

federal statutes, state regulations, and

School Board Rul es, shall continue to be

exercised exclusively by the School Board

and the Superintendent without prior notice

or negotiations with AFSCME, Local 1184,

except as specifically and explicitly

provided for by the stated terms of this

Contract. Such rights th us reserved

exclusively to the School Board and the

Superintendent, by way of limitation,

include the following: . . . .

(2) separation, suspension, dismissal, and

termination of employees for just

cause; . . . .

It is understood and agreed that managem ent

possesses the sole right, duty, and

responsibility for operation of the schools

and that all management rights repose in it,

but that such rights must be exercised

consistently with the other provisions of

the agreement. These rights include, but

are not limited to, the following:

A. Discipline or discharge of any employee

for just cause; . . . .

* * *

6. Article XI of the AFSCME Contract is entitled,

"Disciplinary Action."

7. Section 1 of Article XI is entitled, "Due Pr ocess." It

provides as follows:

A. Unit members are accountable for their

individual levels of productivity,

implementing the duties of their positions,

and rendering efficient, effective delivery

of services and support. Whenever an

employee renders de ficient performance,

violates any rule, regulation, or policy,

that employee shall be notified by his/her

supervisor, as soon as possible, with the

employee being informed of the deficiency or

rule, regulation, or policy violated. An

informal discussion w ith the employee shall

occur prior to the issuance of any written

disciplinary action. Progressive discipline

steps should be followed, however in

administering discipline, the degree of

discipline shall be reasonably related to

the seriousness of the off ense and the

employee[']s record. Therefore,

disciplinary steps may include:

1. verbal warning;

2. written warning (acknowledged);

3. Letter of reprimand;

4. Suspension/demotion; and

5. Dismissal.[ 2 ]

A Conference - for - the - Record shall be held

when there is a violation of federal

statutes, State Statutes, defiance of the

administrator's authority, or a

substantiated investigation to determine if

formal disciplinary action should be taken

(1.e., letter of reprimand, suspension,

demotion or dismi ssal). A Conference - for -

the - Record in and of itself shall not be

considered disciplinary.[ 3 ]

B. The parties agree that discharge is the

extreme disciplinary penalty, since the

employee's job, seniority, other contractual

benefits, and reputation are at stake. In

recognition of this principle, it is agreed

that disciplinary action(s) taken against

AFSCME, Local 1184 bargaining unit members

shall be consistent with the concept and

practice of progressive or corrective

discipline and that in all instances the

degree of discipline shall be reasonably

related to the seriousness of the offense

and the employee's record.

C. The employee shall have the right to

Union representation in Conferences - for - the -

Record held pursuant to this Article. Such

a conferen ce shall include any meeting where

disciplinary action will be initiated.

D. The employee shall be given two days'

notice and a statement for the reason for

any Conference - for - the - Record, as defined

above, except in cases deemed to be an

emergency. A ma ximum of two Union

representatives may be present at a

Conference - for - the Record.

E. The Board agrees to promptly furnish the

Union with a copy of any disciplinary action

notification (i.e., notice of suspension,

dismissal, or other actions appealable un der

this Section) against an employee in this

bargaining unit.

8. Section 2 of Article XI is entitled, "Dismissal,

Suspension, Reduction - in - Grade." It provides as follows:

Permanent employees dismissed, suspended, or

reduced in grade shall be entitled t o appeal

such action to an impartial Hearing Officer

or through the grievance/arbitration process

as set forth in Article VII of the Contract.

The employee shall be notified of such

action and of his/her right to appeal by

certified mail. The employee sh all have 20

calendar days in which to notify the School

Board Clerk of the employee's intent to

appeal such action and to select the method

of appeal. If the employee when appealing

the Board action, does not select the

grievance/arbitration process as se t forth

in Article VII of the Contract[,] the Board

shall appoint an impartial Hearing Officer,

who shall set the date and place mutually

agreeable to the employee and the Board for

the hearing of the appeal. The Board shall

set a time limit, at which tim e the Hearing

Officer shall present the findings. The

findings of the Hearing Officer shall not be

binding on the Board, and the Board shall

retain final authority on all dismissals,

suspensions, and reductions - in - grade. The

employee shall not be employe d during the

time of such dismissal or suspension, even

if appealed. If reinstated by Board action,

the employee shall receive payment for the

days not worked and shall not lose any

longevity or be charged with a break in

service due to said dismissal, su spension,

or reduction - in - grade. Non - reappointments

are not subject to the grievance/arbitration

procedures.

9. Section 4 of Article XI is entitled, "Types of

Separation." It provides, in pertinent part, as follows:

Dissolution of the employment rela tionship

between a permanent unit member and the

Board may occur by any four [sic] distinct

types of separation.

A. Voluntary -- . . . .

B. Excessive Absenteeism/Abandonment of

Position -- An unauthorized absence for

three consecutive workdays shall be evidence

of abandonment of position. Unauthorized

absences totaling 10 or more workdays during

the previous 12 - month period shall be

evidence of excessive absenteeism. Either

of the foregoing shall constitute grounds

for termination. An employee recomm ended

for termination under these provisions shall

have the right to request of the Chief

Personnel Officer for Human Resources a

review of the facts concerning the

unauthorized leave. Such right shall exist

for a period of up to 10 working days after

the first day of notification of the

unauthorized absence.[ 4 ]

C. Disciplinary -- The employee is

separated by the employer for disciplinary

cause arising from the employee's

performance or non - performance of job

responsibilities. Such action occurs at any

necessary point in time.

D. Non - reappointment -- . . . .

AFSCME, Local 1184 bargaining unit members

employed by the school district in excess of

five years shall not be subject to non -

reappointment. Such employee may only be

discharged for just cause.

E. Layoff -- . . . .

10. As a School Board employee, Respondent is obligated to

act in accordance with School Board "rule[s], regulation[s], and

[p]olic[ies]. If she does not, she may be disciplined pursuant

to the AFSCME Contract. 5

11. Among the School Board's "rule[s]" are School Board

Rule 6Gx13 - 4A - 1.21 and School Board Rule 6Gx13 - 4E - 1.01 .

12. School Board Rule 6Gx13 - 4A - 1.21 provides, in pertinent

part, as follows:

Permanent Personnel

RESPONSIBILITIES AND DUTIES

I. EMPLOYEE CONDUCT

All pers ons 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 cr edit upon themselves and

the school system.

* * *

13. School Board Rule 6Gx13 - 4E - 1.01 addresses the subject

of "[a]bsences and [l]eaves." It provides, in pertinent part,

that, "[e]xcept for sudden illness or emergency situatio ns, any

employee who is absent without prior approval shall be deemed to

have been willfully absent without leave."

14. School Board bus drivers and aides are governed by the

following "[a]ttendance [p]olicy" set forth in the School Board

Transportation Department's Handbook for Drivers, Aides and

Operations Staff:

Drivers and aides are expected to be prompt

and punctual in their attendance on all

workdays in accordance with the current

calendar and their assigned schedule, and

their contract.

9.1 AUTH ORIZED ABSENCES

For absences to be authorized, they must be

reported to the driver's or aide's

Transportation Center Dispatch Office in

advance. This notice shall be made at the

earliest possible time, but no later than

before the next scheduled report t ime. Even

in an emergency, every possible effort must

be made to inform the Dispatch Office. The

supervisory staff evaluates the driver's

adherence to this rule. Intent to return

should be treated in the same manner. Leave

forms must be completed promp tly for payroll

purposes.

9.2 UNAUTHORIZED ABSENCES

Unauthorized absences are subject to

disciplinary action as prescribed under

existing labor contracts. If a driver or

aide does not report to work within 15

minutes after the scheduled report time, o r

does not call in absent before the report

time, the absence will be considered

unauthorized. If time off is taken during a

regular working school day without a

supervisor's approval, this absence may also

be considered unauthorized. Additionally,

any e mployee who does not have available

sick/personal time may be charged with an

unauthorized absence.

9.3 NOTIFICATION OF ABSENCES

- Drivers and aides must notify their

Transportation Center[']s Dispatch Office as

soon as they have determined they cannot

r eport to work. Drivers are not to make

arrangements on their own for a substitute.

All arrangements must be made by the

Dispatch Office.

- If a driver will not be reporting for work

on regular school days, the driver must call

in immediately and speak wi th the

Dispatcher, or the Field Operations

Specialist.

- If a driver cannot report to work because

of an emergency situation, the driver must

contact the Dispatch Office as soon as

possible. If the situation requires a

driver to leave the area, the driver should

have a relative or friend contact the office

for the driver.

- If the absence will occur sometime in the

future, the Dispatch Office should be given

as much advance notification as possible.

- When the Dispatch Office is contacted, an

explanation f or the absence should be given

along with the length of absence and

estimated date of return.

- If the driver is off from work for more

than one day, the driver must contact the

office each day, prior to the report time,

with a complete update of the situa tion.

The only times the driver does not have to

contact the office on a daily basis are as

follows:

- Admission to a hospital as a patient

- Maternity leave

- A doctor's work release for a specified

number of days

- Extended sick leave

- Approved leave o f absence

- Out of town

9.4 CHECK - IN POLICY

- All employees are expected to arrive at

work on or before their scheduled report

time.

- Drivers and aides will be given a five

minute grace period to report to work,

during which no disciplinary nor financia l

actions will be taken. For example, if the

driver or aide is scheduled to report for

work at 6:00 a.m., but signs - in by 6:05

a.m., the driver or aide will be allowed to

go out on the assigned route with no

repercussions.

- Drivers and aides who report t o work 6 - 15

minutes after the scheduled report times

will be considered "tardy." Tardy drivers

and aides will be permitted to work.

However, the dispatch may assign a stand - by

or substitute driver or aide to the route of

the tardy employee. Drivers and aides who

are more than 10 minutes late, but less than

16 minutes late, will be used as substitute

drivers and aides and will not be allowed to

operate their regularly assigned route. For

the tardy driver or aide who was replaced by

a substitute or stand - by driver or aide,

such driver or aide will then be assigned as

substitute for other routes needing

coverage, as requirements dictate. A record

will be kept documenting all tardiness.

Lost time will be accumulated for tardiness

and employees will be dock ed pay in 1/2 day

increments.

- Drivers and aides who report to work 16 or

more minutes after the scheduled report time

will be considered "absent without leave"

(AWOL). These persons will not be permitted

to work. They will be placed on

"unauthorized le ave - without pay" (ULWOP) and

will be subject to disciplinary action in

accordance with the American Federation of

State, County, and Municipal Employees

(AFSCME) Collective Bargaining Agreement

- Extenuating circumstances will be evaluated

by the Center Di rector and, upon proper

documentation, may not be held against the

employee. Repeated occurrences, such as

"car broke down for the third time this

week," will not be considered extenuating.

9.5 DOCUMENTATION

It is the responsibility of the drivers and

aides to report to the supervisor in order

to complete and/or produce all required

paperwork related to the absence on the

first workday upon return to work. Failure

to comply with this procedure may result in

an unauthorized absence regardless of

extenua ting circumstances.

15. During the time she has been assigned to the John

Schee Regional Transportation Center, Respondent has had a

history of poor attendance, which has adversely impacted the

operations of the center.

16. On February 21, 2003, Respo ndent was issued a verbal

warning for an unauthorized absence.

17. On March 20, 2003, Respondent was issued the following

written warning regarding her attendance by Dr. Michael

Exelbert, a Coordinator III at the John Schee Regional

Transportation Center:

Payroll records indicate that you have

accrued 7 days of Unauthorized Leave Without

Pay and/or Tardies. Records indicate you

were verbally warned regarding this issue on

Feb. 21, 2003.

Article V, Section 27 of the contract

between Miami - Dade County Publ ic Schools and

AFSCME 1184 states:

" Unauthorized Absence - Any absence without

pay which has not been requested by the

employee and approved by the supervisor, in

writing, at least five days in advance.

Absences of the employee, where notice of

absence is made prior to the start of the

workday, but are not covered by the employee

having accrued sick or personal leave, shall

be charged as unauthorized absence and may

result in disciplinary action in accordance

with Article XI."

Article XI, Section 4B o f the contract

between Miami - Dade County Public Schools and

AFSCME 1184 states:

" Excessive Absenteeism/Abandonment of

Position - An unauthorized absence for three

consecutive workdays shall be evidence of

abandonment of position. Unauthorized

absences to taling 10 or more workdays during

the previous 12 - month period shall be

evidence of excessive absenteeism. Either

of the foregoing shall constitute grounds

for termination. An employee recommended

for termination under these provisions shall

have the rig ht to request of the Deputy

Superintendent for Personnel Management and

Services a review of the facts concerning

the unauthorized leave. Such right shall

exist for a period of up to 10 working days

after the first day of notification of the

unauthorized absence."

Section 9 of the M - DCPS, Department of

Transportation Handbook for Drivers, Aides

and Operations Staff addresses the

department's Attendance Policy . It states:

" Drivers and aides are expected to be

prompt and punctual in their attendance on

a ll workdays in accordance with the current

calendar and their assigned schedule, and

their contract."

This section addresses: 9.1 - Authorized

Absences, 9.2 - Unauthorized Absences, 9.3 -

Notification of Absences, and 9.4 - Check - In

Policy. You are instructed t o review this

section of your handbook.

Deficient performance exhibited by the

accrual of unauthorized absences and/or

tardiness negatively impacts the department,

coworkers and the educational program of the

students we serve. This behavior is

unaccepta ble and must be corrected by

reporting to duty when scheduled and

reporting on time.

With this memorandum, you are warned that

future occurrences of Unauthorized Absences

and/or Tardies will lead to progressive

disciplinary action compliant with District

policies and procedures and the contract

between M - DCPS and AFSCME Local 1184. Be

advised M - DCPS has a District Support Agency

that may be able to assist you regarding

attendance deficiencies and can be reached

at . . . . You are encouraged to contact

th em for assistance in regards to your

attendance deficiencies.

Please contact me if additional information

is required.

Respondent signed this written warning, acknowledging receipt

thereof, on March 26, 2003.

18. On October 23, 2003, Mr. Exelbert held a conference -

for - the - record with Respondent to discuss "attendance

requirements." The following day, Mr. Exelbert prepared a

memorandum in which he summarized what had transpired at the

conference. The memorandum read as follows:

A Conference - For - The - Rec ord was held in my

office on Thursday, October 23, 2003. You

were asked if you were a member of the

Union. You indicated that you were, but did

not seek representation. Present at the

meeting was Cynthia Brown, Bus Attendant,

and this administrator.

Yo u were told the purpose of today's

conference was to review attendance

requirements.

You were given a copy of the Notification of

this Conference - For - The - Record. You

acknowledged receiving and signing receipt

for today's Conference - For - The - Record.

You a lso received: a copy of all LWOP - U

absences since your written warning and a

copy of your M - DCPS screen 026 leave status

dates.

You received a Verbal Warning about your

LWOP - U absences on February 21, 2003, and a

written warning about you[r] LWOP - U absen ces

on March 20, 2003.

During those meeting the following LWOP - U

absences were discussed.

November 22(D), 2002.

December 05(A), 06(D), 09(D), 10(D), 11(D),

20(P), 2002.

February 04(P), 06(A), 11(A), 13(A), 14(P),

20(D), 24(D), 25(A), 2003.

March 06(A), 1 0(D), 11(D), 12(D), 13(D),

2003.

For today, the following LWOP - U attendance

days since the Written Warning on March 20,

2003 were discussed:

March 27(A), 2003.

April 11(D), 17(A), 21(A), 23(D), 24(D),

2003.

May 09, 12, 13, 14, 15, 16, 19, 20, 21, 22,

23, 27, 28, 29, 30, 2003 (ALL Days).

June 02, 03, 04, 05, 2003 (ALL Days).

August 26(A), 29(A), 2003.

September 04(A), 05(A), 11(A), 2003.

A total of fifty occurrence of LWOP - U

The seriousness of missing work and good

attendance was discussed. You were giv en

copies of Section 9 (Attendance Policy) from

the Handbook of School Bus Drivers, Aides

and Operations Staff.

You indicated that you would bring

documentation to change the unexcused

absences of:

April 11, 17, 21, 23, 24, 2003,

May 12, 13, 14, 15, 16, 19, 20, 21, 22, 23,

27, 28, 29, 30, 2003,

June 02, 03, 04, 05, 2003,

(due to medical problems that you

experienced at those times), and that you

could bring in other documentation for:

August 26, 29, 2003 and

September 04, 05, 11, 2003,

as a result of do mestic problems you

experienced at those time, from unacceptable

to LWOP - A.

You were asked if you had any other

comments. You indicated that by Friday,

October 31, 2003, you would bring in

additional documentation for other dates

listed above.

You were told that this case would now be

sent to Mr. George C. Millar, Director of

the John Schee Regional Transportation

Center and possibly to the Office of Jerry

Klein, District Director, Department of

Transportation Administration for further

review.

You were told that a summary would be

prepared of today's session. You were

apprised of your right to append, to

clarify, or to explain any information

recorded in this conference, by this

Summary. You were asked to review this

summary on Monday October 27, 2003 , after

8:30AM, in Gail Allen, the Executive

Secretary's Office.

Respondent signed this memorandum, acknowledging receipt

thereof, on October 29, 2003.

19. Mr. Exelbert referred Respondent to the School Board's

Employee Assistance Program for help in dea ling with problems

affecting her attendance.

20. George Millar, the Director of the John Schee Regional

Transportation Center, held a conference - for - the - record with

Respondent on February 13, 2004. On February 17, 2004,

Mr. Millar prepared a memorandum i n which he summarized what had

transpired at the conference. The memorandum read, in pertinent

part, as follows:

* * *

CONFERENCE DATA

It was stated that over the previous 12 -

month period, excluding summer, you have

accrued 35. 5 days of unauthorized absences.

It was noted that several days previously

unauthorized had been changed to authorized

with a current net total of 35.5

days . . . . It was noted that the 35th day

does not show on the report because the pay

period just c losed. A review of the record

showed the following incidences attempting

to assist you improve your attendance:

- Verbal Warning - February 21, 2003

- Written Warning - March 20, 2003 . . .

- Conference for the Record - October 23,

2003 . . . .

- D istrict Support Agency Referral -

October 23, 2003 . . . .

You were asked to present any additional

documentation or response to address the

issues presented. You stated that you were

ill at the end of last year and you brought

documentation. During a p ortion of that

time you were hospitalized. You were

instructed to submit documentation and it

would be reviewed and considered for

changing the identified absences to

authorized. Your AFSCME Representatives

were asked if they had any comment,

Mr. Houghta ling said no.

Action Taken

The following section of the contract

between Miami - Dade County Public Schools and

AFSCME Local 1184 and Department of

Transportation Handbook were reviewed and

you acknowledged understanding their meaning

and intent

- Articl e V, Section 27 . . . .

- Article XI, Section 4, Paragraph

B . . . .

- Section 9 Attendance - M - DCPS,

Department of Transportation Handbook for

Drivers, Aides and Operations Staff . . . .

The following instructions were given at the

conference:

- R eport for duty each day and shift that

you are scheduled to work.

- Call in or submit a leave card in advance

of your reporting time when you intend to be

absent.

- Present documentation for absences not

covered by accrued leave time to this

administrato r or Dr. Michael Exelbert upon

your return to duty.

Conclusion

You were instructed that this conference

would be summarized and forwarded to the

Administrative Director, Department of

Transportation, and the Office of

Professional Standards for review an d

subsequent disciplinary action as merited.

You were informed of your right to appendage

(provide a written statement), which will be

attached to the conference summary if you

feel any facts or information is

misrepresented or statements omitted which

oc curred during the conference. You will

have 24 hours from receipt of the conference

summary to submit this appendage. These

statements concluded the conference.

Respondent signed this memorandum, acknowledging receipt

thereof, on February 24, 2004.

21. Barbara Moss, the School Board's Office of

Professional Standards' District Director, held a conference -

for - the - record with Respondent on March 16, 2004, to discuss

Respondent's absenteeism and her "future employment status" with

the School board. In the 12 - month period prior to this

conference, Respondent had been absent a total of 72 days and

had 33.5 days of unauthorized absences. On March 24, 2004,

Ms. Moss prepared and furnished Respondent a memorandum in which

Ms. Moss summarized what had transpire d at the conference. In

those portions of the memorandum addressing the "action taken"

and the "action to be taken," Ms. Moss wrote the following:

Action Taken

You were advised of the availability of

services from the District's support

referral agency.

The following directives are herein

delineated which were issued to you during

the conference concerning future absences:

1. Be in regular attendance and on time.

2. Intent to be absent must be communicated

directly to Mr. George Millar or designee.

3. Absences for illness must be documented

by your treating physician and a written

medical note presented to Mr. Millar or

designee upon your return to the site.

Failure to comply will result in the absence

being recorded as Leave Without Pay,

Unauthorize d (LWOU).

During the conference, you were directed to

comply and provided with a copy of School

Board Rules 6Gx13 - 4A - 1.21 , Responsibilities

and Duties, and 6Gx13 - 4E - 1.01 , Absences and

Leaves. You are advised of the high esteem

in which employees are held and of the

District's concern for any behavior, which

adversely affects this level of

professionalism.

Action TO Be Taken

You were advised that the information

presented in this conference, as well as

subsequent documentation, would be reviewed

with the Assistant Superintendent in the

Office of District Compliance Units, the

Administrative Director of Transportation,

and the Director of [the] John Schee

Transportation Center.

Upon completion of the conference summary, a

legal review by the School Board attorneys

will be requested. Receipt of their legal

review with endorsement by the Chief

Communications Officer, will compel formal

notification of the recommended disciplinary

action. All disciplinary actions will be

consistent with the concepts and pra ctice of

progressive or corrective discipline. The

degree of discipline shall be reasonably

related to the seriousness of the offense

and the employee's record.

You were apprised of your right to clarify,

explain, and respond to any information

recorded in this conference by this summary,

and to have any such response appended to

your record.

22. At its June 16, 2004, meeting, the School Board "took

action to suspend [Respondent] and initiate dismissal

proceedings against [her]."

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto.

24. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supe rvise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat. (formerly § 230.03(2),

Fla. Stat.)

25. Such authority extends to pe rsonnel matters and

includes the power to suspend and dismiss employees. See §

1001.42(5), Fla. Stat. (formerly § 230.23(5)(f), Fla.

Stat.)("The district school board, acting as a board, shall

exercise all powers and perform all duties listed below:

PERS ONNEL. -- . . . provide for the . . . suspension, and

dismissal of employees subject to the requirements of chapter

1012."); § 1012.22(1)(f), Fla. Stat. ("The district school board

shall suspend, dismiss, or return to annual contract members of

the instructi onal staff and other school employees." ); and §

1012.23(1), Fla. Stat. (formerly § 231.001, Fla. Stat.)("Except

as otherwise provided by law or the State Constitution, district

school boards may adopt rules governing personnel matters,[ 6 ]

including the ass ignment of duties and responsibilities for all

district employees.").

26. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

distri ct." § 447.203(2), Fla. Stat.

27. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or for other

legitimate reasons." § 447.209, Fla. Stat.

28. It , however, must exercise these powers in a manner

that is consistent with the requirements of law and the

provisions of any collective bargaining agreements into which it

has entered with the bargaining unit representatives of its

employees. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672 - 73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); and

Hillsborough County Governmental Employees Association v.

Hillsborough County Aviation Authority , 522 So. 2d 358, 363

(Fla. 1988)("[W]e hold that a public employer must im plement a

ratified collective bargaining agreement with respect to wages,

hours, or terms or conditions of employment . . . .").

29. "Under Florida law, a [district] school board's

decision to terminate an employee is one affecting the

employee's subs tantial interests; therefore, the employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute." 7 Sublett v. District School

Board of Sumter County , 617 So. 2d at 377.

30. The employee must be given written n otice of the

specific charges prior to the "formal hearing." Although the

notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collecti ve

bargaining provision] the [district school board] alleges has

been violated and the conduct which occasioned [said]

violation." Jacker v. School Board of Dade County , 426 So. 2d

1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).

31. Any adverse action taken against the employee may be

based only upon the conduct specifically alleged in the written

notice of specific charges. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999);

Cottrill v. Department of In surance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); and Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

32. At the "formal hearing," the burden is on the district

school board to prove the allegations contained in t he notice.

33. The district school board's proof need only meet the

preponderance of the evidence standard, unless the collective

bargaining agreement covering the bargaining unit of which the

employee is a member provides otherwise (and there is no

ind ication that the collective bargaining agreement covering

Respondent's bargaining unit contains such a provision). 8 See

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996)("The School Board bears the burden of

proving, by a pre ponderance of the evidence, each element of the

charged offense which may warrant dismissal."); Sublett v.

Sumter County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995)("We agree with the hearing officer that for the School

Board to demonstrate jus t cause for termination, it must prove

by a preponderance of the evidence, as required by law, that the

allegations of sexual misconduct were true . . . ."); Allen v.

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

1990)("We . . . find that t he hearing officer and the School

Board correctly determined that the appropriate standard of

proof in dismissal proceedings was a preponderance of the

evidence. . . . The instant case does not involve the loss of a

license and, therefore, Allen's losses are adequately protected

by the preponderance of the evidence standard."); Dileo v.

School Board of Dade County , 569 So. 2d 883, 884 (Fla. 3d DCA

1990)("We disagree that the required quantum of proof in a

teacher dismissal case is clear and convincing evid ence, and

hold that the record contains competent and substantial evidence

to support both charges by a preponderance of the evidence

standard."); and § 120.57(1)(j), Fla. Stat. (" Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute . . . .")

34. Where the employee is an "educational support

employee" who has successfully completed his or her probationary

period and the adverse action sought t o be taken against the

employee is termination, the district school board must act in

accordance with the provisions of Section 1012.40, Florida

Statutes (formerly Section 231.3605, Florida Statutes), which

provides as follows:

(1) As used in this sectio n:

(a) "Educational support employee" means

any person employed by a district school

system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person 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 pur suant to s. 1012.39. This

section does not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(b ) "Employee" means any person employed as

an educational support employee.

(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 dist rict school board rule in cases

where a collective bargaining agreement 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 district school

superinte ndent 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, or reduces the

number of employees on a districtwide basis

for financ ial reasons.

(c) In the event a district school

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.

35. Respondent is an "educational support emplo yee,"

within the meaning of Section 1012.40, Florida Statutes, who is

covered by a collective bargaining agreement (the AFSCME

Contract).

36. Pursuant to Section 1012.40, Florida Statutes,

Respondent's employment may be terminated only "for reasons

stat ed in th[is] collective bargaining agreement."

37. The AFSCME Contract allows the School Board to

terminate bargaining unit members for "excessive absenteeism."

It also authorizes the School Board to terminate bargaining unit

members for "deficient perfo rmance," "non - performance of job

responsibilities," or "violat[ion of] any rule, regulation or

policy," provided such disciplinary action is "reasonably

related to the seriousness of the offense and the employee's

record."

38. The Notice of Specific Char ges served on Respondent

alleges that Respondent's termination is warranted under the

provisions of the AFSCME Contract because of her "excessive

absenteeism and violation of School Board rule regarding

absences and leaves" (Count I); "willful neglect of d uty" (Count

II); "violation of School Board rule regarding employee

responsibilities and duties" (Count III); and "deficient

performance" (Count IV).

39. The preponderance of the record evidence establishes

that, during the 12 - month period prior to the Ma rch 16, 2004,

conference - for - the - record Ms. Moss had with Respondent,

Respondent was "absent without authorization in excess of 10

[work]days" (as alleged in paragraph 13. of the Notice of

Specific Charges). These unauthorized absences (referenced in

para graph 13 of the Notice of Specific Charges, which the School

Board proved by a preponderance of the evidence) constitute

"excessive absenteeism," within the meaning of Article XI,

Section 4B, of the AFSCME Contract. Standing alone, they

provide "grounds f or termination" of Respondent's employment

with the School Board pursuant to Article XI, Section 4B, of the

AFSCME Contract, as alleged in Count I of the Notice of Specific

Charges. 9

40. Such being the case, Respondent's appeal of her

proposed terminati on must be rejected.

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 with the School Boar d pursuant Article XI, Section

4B, of the AFSCME Contract.

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

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Admin istrative 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 March, 2005.

ENDNOTES

1 The hearing was originally scheduled for October 6, 2004, but

was twice continued.

2 Article XI, Section 1A, of the AFSCME Contract does not

require the School Boa rd, when taking disciplinary action

against bargaining unit members, to follow the particular

"progressive discipline steps" enumerated in this provision of

the contract. See Palm Beach County Canvassing Board v. Harris ,

772 So. 2d 1273, 1287 ( Fla. 2000) ( "Whereas section 102.11 is

mandatory (i.e., the Department 'shall' ignore late returns),

section 102.112 is permissive (i.e., the Department 'may' ignore

late returns, or the Department 'may' certify late returns and

fine tardy Board members."); Dooley v. State , 789 So. 2d 1082,

1084 ( Fla. 1st DCA 2001)( "[R]ule 3.170(1) is clearly permissive

in that it states a defendant 'may file a motion to

withdraw.'"); State v. Thomas , 528 So. 2d 1274, 1275 (Fla. 3d

DCA 1988) ("As we perceive it, the State's argument is that

'should' is the equivalent of 'shall' and that 'shall' is

mandatory. While we acknowledge that 'should' retains its

arcane, schoolmarm meaning as a past tense of 'shall,' its

modern usage is as the weaker companion to the obligatory

'ought.' Thus, i t is said that '[o]ught should be reserved for

expressions of necessity, duty, or obligation; should, the

weaker word, expresses mere appropriateness, suitability or

fittingness.'"); Massey Builders Supply Corp. v. Colgan , 553

S.E. 2d 146, 150 ( Va. App. 20 01)( "The word 'shall' is primarily

mandatory, whereas the word 'should' ordinarily implies no more

than expediency and is directory only."); and Magnuson v. Grand

Forks County , 97 N.W.2d 622, 624 ( N.D. 1959) ("It does not seem

that the word 'should' was use d inadvertently. Other

instructions on the back of the order contain the more

compulsive word 'must,' as for example 'the original of this

order must be signed by the recipient or person acting in his

behalf and by the vendor.' We construe the word 'shou ld' as

used here to be persuasive rather than mandatory.").

3 Article XI, Section 1A, of the AFSCME Contract applies only

when adverse action is taken against a bargaining unit member

for "disciplinary cause." It does not apply to "separations"

for "e xcessive absenteeism/abandonment of position," which are

addressed in Article XI, Section 4 B , of the contract and are

separate and distinct from separations for "disciplinary cause"

(discussed in Article XI, Section 4 C , of the contract).

4 Article XI, Section 4B, of the AFSCME Contract makes clear

that "excessive absenteeism" (evidenced by "unauthorized

absences totaling 10 or more workdays during the previous 12 -

month period") is considered to be so deleterious to the

operations of the School Board tha t it " shall constitute grounds

for termination."

5 An employee who does not meet her responsibility of complying

with School Board "rule[s], regulation[s], and [p]olic[ies]" is

guilty of "non - performance of job responsibilities," as that

term is used in Article XI, Section 4C, of the AFSCME Contract.

6 The "rules governing personnel matters" that have been adopted

by the School Board include School Board Rules 6Gx13 - 4A - 1.21 and

6Gx13 - 4E - 1.01 .

7 "A county school board is a state agency falling within

C hapter 120 for purposes of quasi - judicial administrative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

8 Where the district school board, through the collective

bargaining process, has agreed to bea r a standard of proof more

demanding than preponderance of the evidence, it must honor, and

act in accordance with, its agreement. See Palm Beach County

School Board v. Auerbach , Case No. 96 - 3683, 1997 WL 1052595 *5

(Fla. DOAH February 20, 1997)(Recommend ed Order)("Long - standing

case law establishes that in a teacher employment discipline

case, the school district has the burden of proving its charges

by a preponderance of the evidence. . . . However, in this

case, the district must comply with the terms of the collective

bargaining agreement, which, as found in paragraph 27, above,

requires the more stringent standard of proof: clear and

convincing evidence.").

9 It is therefore unnecessary to determine whether there are

also grounds to terminate Respo ndent for "disciplinary cause,"

within the meaning of Article XI, Section 4C, of the AFSCME

Contract, as further alleged the Notice of Specific Charges.

COPIES FURNISHED:

Denise Wallace, Esquire

Ignacio J. Vasquez, Student Legal Intern

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Cynthia Brown

Post Office Box 510275

Miami, Florida 33151

Rudolph E. Crew, Ed.D., Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Jim Winn

Commissioner of Education

Turlington Building, Suite 1514

Department of Education

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gain es Street

Tallahassee, Florida 32399 - 0400

N OTICE OF RIGHT TO SU BMIT 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 wit h the agency that

will issue the Final Order in this case.