05-001914 Miami-Dade County School Board vs. Ismael Perez
 Status: Closed
Recommended Order on Wednesday, February 1, 2006.


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Summary: Respondent violated time clock policy and falsified daily records in violation of school policy. These acts constitute just cause for dismissal.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MIAMI - DADE COUNTY SCHOOL BOARD, )

15)

16Petitioner, )

18)

19vs. ) Case No. 05 - 1913

26)

27JUAN J. PEREZ, )

31)

32Respondent. )

34)

35MIAMI - DADE COUNTY SCHOOL BOARD, )

42)

43Petitioner, )

45)

46vs. ) Case No. 05 - 1914

53)

54ISMAEL PEREZ, )

57)

58Respondent. )

60)

61RECOMMENDED ORDER

63Pursuant to notice a formal hearing was held in th ese case s

76by video teleconference on September 12 and 13, 2005, with the

87parties appearing from Miami, Florida, before J. D. Parrish, a

97designated Administrative Law Judge of the Division of

105Administrative Hearings.

107APPEARANCES

108For Petitioner: Melinda L. McNichols, Esquire

114Miami - Dade County School Boar d

1211450 Northeast Second Avenue, Suite 400

127Miami, Florida 33132

130For Respondents: Robert A. Sugarman, Esquire

136D. Marcus Braswell, Jr., Esquire

1412801 Ponce de Leon Boulevard , S uite 750

149Coral Gables, Florida 33134

153STATEMENT OF THE ISSUE

157Whether the Respondents committed the acts complained of in

166the Notices of Specific Charges filed by the Petitioner on

176June 30, 2005; and, if so, what penalty should be imposed.

187PRELIMINARY STATEMENT

189These cases were filed with the Division of Administrative

198Hearings on May 25, 2005. Essentially, the Petitioner, School

207Board of Miami - Dade County, Florida (Petitioner or School Board)

218seeks to take disciplinary action ag ainst two non - instructional

229personnel. The Respondents, Juan and Ismael Perez, are brothers

238who are employed by the Petitioner as electricians. DOAH Case

248No. 05 - 1913 is the case related to Juan Perez , and DOAH Case No.

26305 - 1914 relates to Ismael Perez. T he cases were consolidated

275for hearing as many of the witnesses and events complained of

286relate to both Respondents.

290On May 18, 2005, the School Board took action to suspend

301and initiate dismissal proceedings against the Respondents. The

309Petitioner alleg ed that the Respondents had performed their work

319in a deficient manner and had committed misconduct during the

329performance of their duties. According to the School Board ,

338there is “just cause” to terminate these employees.

346The Respondents timely challeng ed the proposed action . The

356referral from the School Board to the Division of Administrative

366Hearings for formal proceedings followed on May 25, 2005.

375The hearing was initially scheduled for August 8 and 9,

3852005 , but was continued at the unopposed reques t of the

396Petitioner. Thereafter, the matter was rescheduled and the

404hearing was conducted by video teleconference on September 12

413and 13, 2005.

416At the hearing, the Petitioner presented testimony from

424Sharon Shearey, a payroll clerk employed by the Petiti oner’s

434Maintenance Department; Michael Kanamine, Coordinator I for the

442Maintenance Department; Martin Mikulas, Director of Maintenance

449Operations for the Coral Reef Facility; Francisco Alvarez,

457Maintenance Supervisor; Julio Horstmann, Coordinator I,

463Mainte nance Department; Lourdes Hodges, Detective with the

471School Police; Arthur Lee James, Zone Mechanic, Coral Reef

480Senior High School; David Brooks, a ssistant p rincipal, Coral

490Reef Senior High School; Hilda Jimenez, a teacher at Southwood

500Middle School; Alfre d Sciabarassi, a ssistant p rincipal,

509Southwood Middle School; Lebenia Velasquez, secretary at

516Colonial Drive Elementary School; Barbara Moss, Director with

524the Office of Professional Standards; and Paul Greenfield,

532Director with the Office of Professional S tandards. The

541Petitioner’s Exhibits 1 - 6, 8 - 14, 16, 17, and 19 - 28 were admitted

557into evidence .

560The Respondents presented testimony from Samuel Shames, a

568retired electrician II formerly employed by the School Board,

577along with current School Board employees : Richard Hammon, an

587electrician II; Roger Ball, foreperson for electricians; Keith

595Love, a sheet metal worker II,; Donald Waugh, II, a zone

606mechanic; Antonio Rial, a grounds foreperson; Frank Semberger,

614an electrician II, Marvin Chapman, a coordinator III ; and Joseph

624Cortese, Jr., a bargaining agent for the Dade County School

634Maintenance Employee Committee (DCSMEC). Respondents’ Exhibits

6401 - 3 were also admitted into evidence. A joint exhibit, the

652relevant DCSMEC agreement, was stipulated into evidence by the

661parties. Such agreement has been identified as Joint Exhibit 1.

671The transcript of the proceedings was filed with the

680Division of Administrative Hearings on November 14, 2005. The

689parties requested, and were granted, two extensions o f the time

700to file proposed recommended orders. Both parties timely filed

709proposed orders on December 9, 2005.

715FINDINGS OF FACT

7181. At all times material to the allegations of these

728cases, the Petitioner was a duly constituted School Board

737charged with the responsibility t o operate, control and to

747supervise the public schools within the Miami - Dade County,

757Florida public school district. Such authority includes the

765personnel decisions for non - instructional persons employed by

774the School Board.

7772. At all times material to t he allegations of these

788cases, the Respondents were employed by the School Board as

798electricians assigned to work from the Coral Reef Satellite

807Maintenance Operations Department (Coral Reef). The Respondents

814received their daily assignment at the Coral Re ef site and then

826went to the assigned job location to perform their assigned

836work.

8373. As part of their duties, the Respondents were required

847to clock in and out at the Coral Reef site. There are two time

861machines at the Coral Reef site and each employee is responsible

872for personally swiping his identification badge through the

880clock. The machine generates a computer record for the time of

891arrival and departure for each employee. Thus the daily time

901record can be produced for payroll purposes.

9084. Each t ime clock is under surveillance by a video camera

920system that records all activity at the time clocks. The video

931records each employee as he or she clocks in or out.

9425. At all times material to the allegations of these

952cases, the School Board’s policy re quired that each Coral Reef

963employee personally swipe his identification badge when clocking

971in or out.

9746. In 1982, the Respondents were arrested for vehicular

983theft and possession of burglary tools. The Respondents were

992placed on probation for one year and six months for larceny,

1003burglary and having burglary tools in their possession.

1011Adjudication was withheld.

10147. In 1987, the Respondents completed applications for

1022employment with the School Board. Such applications were

1030falsified in that they failed to disclose the arrest and

1040criminal disposition described above.

10448. The Petitioner did not discover the falsified

1052applications until 1997 , when the fingerprinting of school

1060personnel was required by law. Once discovered, both of the

1070Respondents were issu ed a letter that directed them to “refrain

1081from any further falsification regarding information requested

1088of you by this employer. Failure to comply with this directive

1099will lead to disciplinary action.”

11049. The Respondents did not dispute the prior crimi nal

1114history, do not dispute that they were warned to refrain from

1125further behavior regarding the falsification of information, and

1133do not dispute that they are subject to the School Board rules

1145regarding non - instructional personnel.

115010 . On March 5, 2004, Frank Semberger clocked out for

1161himself and the Respondents at 3:30 p.m. Since Mr. Semberger

1171possessed the Respondents’ badges in order to swipe them through

1181the time machine, it is reasonable to find that the Respondents

1192provided the badges to Mr. Sember ger. The Respondents have not

1203suggested that their badges were either stolen or missing at the

1214relevant time.

121611. By allowing Mr. Semberger to clock out for them, the

1227Respondents violated the Petitioner’s time clock policy.

123412. On March 19, 2004, Ismael Perez clocked out for

1244himself on one time clock then proceeded to the second time

1255clock and was video recorded swiping a second time there. The

1266time records established that Juan Perez’ badge was swiped at or

1277near the time Ismael Perez was video - taped sw iping a time clock.

1291Moreover, the time records did not disclose a second swiping of

1302Ismael Perez’ badge. That is to say there is no record that

1314Ismael Perez “double swiped” his own badge. It is reasonable to

1325find that Juan Perez provided his badge to Is mael Perez so that

1338it could be swiped at the pertinent time.

134613. By allowing Ismael Perez to swipe his badge for him,

1357the Respondent, Juan Perez, violated the time clock policy.

136614. By swiping his brother’s badge, Ismael Perez violated

1375the time clock pol icy.

138015. The Coral Reef center uses a form described as a daily

1392status form (DSF) to track the assignments for all tradespersons

1402who are sent from Coral Reef to a job site. The form documents

1415the travel time to and from the job site, the hours at the sit e

1430performing the work, and the status of the work.

143916. All tradespersons are to present the DSF at the job

1450site and have the principal or the principal’s designee sign the

1461form. The DSF is dated (including the time of day) and signed

1473both on arrival and at departure from the job site.

148317. Although it is difficult to locate a principal or the

1494principal’s designee on busy days or during early morning hours

1504(when many workers arrive at the job), the School Board’s

1514maintenance employee handbook (which is pro vided to or is

1524available and known to all trades people employed by the

1534Petitioner) specifically requires that all daily status forms be

1543dated and then signed by all tradespersons reporting time on the

1554DSF.

155518. Ismael Perez knew the policy required the si gnature of

1566the principal or the principal’s designee. In practice, many

1575tradespersons do not take time to locate an appropriate

1584signatory. Such behavior is in conflict with the policy.

159319. On March 19, 2004, the Respondents submitted a DSF

1603that indicate d they had each worked eight hours at Coral Reef

1615Senior High School installing a new outlet to eliminate an

1625extension cord being used to operate a fish tank. The DSF was

1637purportedly signed by Arthur James, a zone mechanic at the

1647school.

164820. Mr. James did not sign the DCF. Someone forged

1658Mr. James’ signature on the form.

166421. On March 19, 2004, the Respondents did not spend eight

1675hours at Coral Reef Senior High School installing a new outlet

1686for the fish tank.

169022. On March 19, 2004, Julio Horstman and Ma rtin Mikulas

1701went to the Coral Reef Senior High School site several times

1712attempting to locate the Respondents. No one at the site

1722verified that the Respondents had been there on that date.

1732Mr. James who had purportedly signed their DSF could not verify

1743the Respondents were on the job on the date in question.

175423. On March 5, 9, 10, 11, and 29, 2004, the Respondents

1766turned in DSFs that were not signed by authorized personnel at

1777Coral Reef Senior High School. The name purportedly signed on

1787the forms was a person not employed at the school. These DSFs

1799were not completed correctly and cannot support the hours

1808represented by them.

181124. The DSFs claimed the Respondents had spent 78 hours

1821working on the Coral Reef Senior High School marquee. No one at

1833the s chool can verify the Respondents were there for that time

1845on the dates in question. Had the Respondents complied with the

1856policy, gotten appropriate signatures on the DSF, the

1864uncertainty would not exist. The time spent at the site would

1875be easily verifi able. As it is, persons who went to the job

1888site looking for the Respondents on the pertinent dates could

1898not find them.

190125. The Respondents were assigned a large project at the

1911dance studio for the Southwood Middle School (Southwood). They

1920never comple ted the job. According to the DSFs submitted by the

1932Respondents they worked 120 hours at the site over the following

1943dates: January 26, 27, 28, and 29 ; March 15, 17, and 28 ; and

1956April 29 and 30, 2004. Despite the number of days and the

1968number of hours a llegedly expended at the site by the

1979Respondents, the dance instructor at the site saw them for only

1990“a couple of hours.” Given the description of her duties and

2001her constant presence in and near the studio during the

2011pertinent time, it would have been re asonable for the instructor

2022to observe the Respondents more than “a couple of hours” for a

2034120 - hour job.

203826. Additionally, the Respondents submitted DSFs that were

2046not signed by the Southwood principal or the principal’s

2055designee. In fact, the DSFs submi tted for the Southwood job

2066contained the names of persons not employed at Southwood. As

2076the names cannot be verified, the times of arrival and departure

2087from the Southwood site cannot be verified. It is reasonable to

2098find the Respondents again violated t he DSF policy.

210727. Similar incidents occurred on March 22, 24, 25, and

211728, 2004. On each of these dates the Respondents submitted DSFs

2128that cannot be verified. In each instance the person whose name

2139is on the form is not an employee at the school site t o which

2154the Respondents were to work. Mr. Horstmann, who went to the

2165job sites looking for the Respondents, could not locate them.

217528. The inclusion of a false name or the forgery of a name

2188on a DSF is contrary to School Board policy. The Respondents

2199knew or should have known that the submission of the DSFs

2210without proper signatories was against policy.

221629. Article IV of the DCSMEC contract requires that

2225employees such as the Respondents be disciplined for “just and

2235good cause.”

223730. The DCSMEC cont ract does not require “progressive

2246discipline.”

224731. At all times material to the allegations of th ese

2258case s the Respondent s were advised of their rights to have a

2271Union representative present during any conference for the

2279record (CFR) regarding the issu es of these cases. Additionally,

2289the Respondents were advised that the School Police w ere

2299conducting an investigation of the matter and waived their right

2309to representation (legal or Union) during the course of an

2319interview with Detective Hodges.

232332. T he Petitioner conducted a CFR on November 8, 2004.

2334At that time the Respondents appeared with a Union

2343representative. After receiving information regarding the

2349improper time clock and DSFs, the Respondents were afforded an

2359opportunity to explain or provi de additional information that

2368would respond to the allegations.

237333. Martin Mikulas recommended to the School

2380Superintendent that the Respondents be terminated from their

2388employment with the school district. That recommendation went

2396to the School Board on May 18, 2005, and the action to suspend

2409and initiate dismissal proceedings against the Respondents for

2417non - performance, deficient performance, and misconduct was

2425approved.

2426CONCLUSIONS OF LAW

242934. The Division of Administrative Hearings has

2436jurisdicti on over the parties to and the subject matter of these

2448proceedings. § 120.57(1), Fla. Stat. (2004).

245435. The Petitioner bears the burden of proof in this cause

2465to establish by a preponderance of the evidence the allegations

2475against the Respondents. See M cNeill v. Pinellas County School

2485Board , 678 So. 2d 476 (Fla. 2d DCA 1996). It has met that

2498burden.

249936. As to the allegations related to the time clock, it is

2511concluded that the Respondents violated the time clock policy by

2521allowing another person to cl ock them out and by allowing Ismael

2533Perez to clock out for both Respondents. Further, Ismael Perez

2543violated the policy by clocking out for his brother.

255237. As to the allegations related to the DSFs, it is

2563concluded the Respondents did not complete the DS Fs correctly.

2573The failure to assure that the DSFs were accurately completed

2583constitutes non - performance of their duties and/or deficient

2592performance. The DSFs are the cornerstone of the record - keeping

2603procedures used by the tradespersons. The accuracy o f the forms

2614assures that the work has been performed, that the time expended

2625performing the work can be tracked and appropriately assigned to

2635a job site and task, and that the persons performing the work

2647can be held accountable for their time on the job. In this

2659case, the Respondents circumvented that process.

266538. These employees knew that the School Board does not

2675tolerate the falsification of information. In 1997 they were

2684fully warned that any future falsification could result in

2693disciplinary measures .

269639. This School Board holds its employees to a high level

2707of conduct. Employees are expected to conduct themselves in a

2717manner that will reflect credit upon themselves and the school

2727system. See School Board Rule 6Gx13 - 4A - 1.21. In this case it

2741is c oncluded that not only did the Respondents not conduct

2752themselves in that manner, they caused or presented false

2761records which the School Board cannot through any independent

2770means correct.

2772RECOMMENDATION

2773Based on the foregoing Findings of Fact and Conclu sions of

2784Law, it is RECOMMENDED that the School Board of Miami - Dade

2796County, Florida enter a Final Order approving the suspensions

2805and dismissals of the Respondents.

2810DONE AND ENTERED this 1st day of February , 2006 , in

2820Tallahassee, Leon County, Florida.

2824S

2825J. D. PARRISH

2828Administrative Law Judge

2831Division of Administrative Hearings

2835The DeSoto Building

28381230 Apalachee Parkway

2841Tallahassee, Florida 32399 - 3060

2846(850) 488 - 9675 SUNCOM 278 - 9675

2854Fax Filing (850) 921 - 6847

2860www.doah.stat e.fl.us

2862Filed with the Clerk of the

2868Division of Administrative Hearings

2872this 1st day of February , 2006 .

2879COPIES FURNISHED :

2882Dr. Randolph F.Crew

2885Superintendent

2886Miami - Dade County School Board

28921450 Northeast Second Avenue No. 912

2898Miami, Florida 33132 - 1394

2903Honorable John L. Winn

2907Commissioner of Education

2910Department of Education

2913Turlington Building, Suite 1514

2917325 West Gaines Street

2921Tallahassee, Florida 32399 - 0400

2926Daniel J. Woodring, General Counsel

2931Department of Education

29341244 Turlington Building

2937325 West Gaines Street

2941Tallahassee, Florida 32399 - 0400

2946Robert A. Sugarman, Esquire

2950Sugarman & Susskind, P.A.

29542801 Ponce de Leon Boulevard

2959Suite 750

2961Coral Gables, Florida 33134

2965Melinda L. McNichols, Esquire

2969Miami - Dade County School Board

29751450 Northeast Second A venue

2980Suite 400

2982Miami, Florida 33132

2985NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2991All parties have the right to submit written exceptions within

300115 days from the date of this Recommended Order. Any exceptions

3012to this Recommended Order should be filed with the agency that

3023will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/29/2006
Proceedings: Agency Final Order of the School Board of Miami-Dade County, Florida filed.
PDF:
Date: 03/24/2006
Proceedings: Agency Final Order
PDF:
Date: 02/01/2006
Proceedings: Recommended Order
PDF:
Date: 02/01/2006
Proceedings: Recommended Order (hearing held September 12 and 13, 2005). CASE CLOSED.
PDF:
Date: 12/09/2005
Proceedings: Petitioner School Board`s Proposed Recommended Order filed.
PDF:
Date: 12/09/2005
Proceedings: Respondent`s Proposed Findings of Fact, Conclusions of Law, and Recommendation filed.
PDF:
Date: 12/05/2005
Proceedings: Order Granting Second Extension of Time (parties shall file their proposed recommended orders no later than December 9, 2005).
PDF:
Date: 12/02/2005
Proceedings: Respondents` Unopposed Motion to Extend Time
PDF:
Date: 11/28/2005
Proceedings: Order Granting Motion to Extend Time (parties have until December 5, 2005, to file their proposed recommended orders).
PDF:
Date: 11/23/2005
Proceedings: Respondent`s Unopposed Motion to Extend Time filed.
PDF:
Date: 09/13/2005
Proceedings: Respondent`s Witness List and Exhibits filed.
Date: 09/12/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/12/2005
Proceedings: Respondent`s Supplemental Response to Interrogatories filed.
PDF:
Date: 09/12/2005
Proceedings: Administrative Law Judge Log filed.
PDF:
Date: 09/09/2005
Proceedings: Petitioner`s Witness List and Exhibits filed.
Date: 09/09/2005
Proceedings: Exhibits filed (exhibits not available for viewing).
PDF:
Date: 09/08/2005
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing scheduled for September 12 through 14, 2005; 9:00 a.m.; Miami and Tallahassee, FL; amended as to Video and Location ).
PDF:
Date: 08/22/2005
Proceedings: Respondent`s First Set of Interrogatories to the Petitioner filed.
PDF:
Date: 07/25/2005
Proceedings: Stipulation of Substitution of Counsel filed.
PDF:
Date: 07/18/2005
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 12 through 14, 2005; 9:00 a.m.; Miami, FL).
PDF:
Date: 07/06/2005
Proceedings: Notice of Appearance filed.
PDF:
Date: 06/30/2005
Proceedings: Unopposed Motion for Continuance of Hearing filed.
PDF:
Date: 06/30/2005
Proceedings: Notice of Specific Charges filed.
PDF:
Date: 06/28/2005
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories to the Respondent filed.
PDF:
Date: 06/09/2005
Proceedings: Order Requiring Notice of Specific Charges (Petitioner shall file a Notice of Specific Charges on or before June 30, 2005).
PDF:
Date: 06/09/2005
Proceedings: Notice of Hearing (hearing set for August 8 and 9, 2005; 9:00 a.m.; Miami, FL).
PDF:
Date: 06/07/2005
Proceedings: Petitioner`s Response to Initial Order filed.
PDF:
Date: 06/06/2005
Proceedings: Petitioner`s Motion for One-day Extension of Time to Respond to Initial Order filed.
PDF:
Date: 05/25/2005
Proceedings: Notice of Suspension & Dismissal Proceedings filed.
PDF:
Date: 05/25/2005
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 05/25/2005
Proceedings: Agency referral filed.
PDF:
Date: 05/25/2005
Proceedings: Notice of Suspension and Dismissal filed.
PDF:
Date: 05/25/2005
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 05/25/2005
Proceedings: Initial Order.

Case Information

Judge:
J. D. PARRISH
Date Filed:
05/25/2005
Date Assignment:
05/25/2005
Last Docket Entry:
03/29/2006
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (2):