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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1913

)

JUAN J. PEREZ, )

)

Respondent. )

)

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1914

)

ISMAEL PEREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

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

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

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

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami - Dade County School Boar d

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondents: Robert A. Sugarman, Esquire

D. Marcus Braswell, Jr., Esquire

2801 Ponce de Leon Boulevard , S uite 750

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether the Respondents committed the acts complained of in

the Notices of Specific Charges filed by the Petitioner on

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

PRELIMINARY STATEMENT

These cases were filed with the Division of Administrative

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

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

seeks to take disciplinary action ag ainst two non - instructional

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

who are employed by the Petitioner as electricians. DOAH Case

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

05 - 1914 relates to Ismael Perez. T he cases were consolidated

for hearing as many of the witnesses and events complained of

relate to both Respondents.

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

and initiate dismissal proceedings against the Respondents. The

Petitioner alleg ed that the Respondents had performed their work

in a deficient manner and had committed misconduct during the

performance of their duties. According to the School Board ,

there is “just cause” to terminate these employees.

The Respondents timely challeng ed the proposed action . The

referral from the School Board to the Division of Administrative

Hearings for formal proceedings followed on May 25, 2005.

The hearing was initially scheduled for August 8 and 9,

2005 , but was continued at the unopposed reques t of the

Petitioner. Thereafter, the matter was rescheduled and the

hearing was conducted by video teleconference on September 12

and 13, 2005.

At the hearing, the Petitioner presented testimony from

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

Maintenance Department; Michael Kanamine, Coordinator I for the

Maintenance Department; Martin Mikulas, Director of Maintenance

Operations for the Coral Reef Facility; Francisco Alvarez,

Maintenance Supervisor; Julio Horstmann, Coordinator I,

Mainte nance Department; Lourdes Hodges, Detective with the

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

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

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

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

Southwood Middle School; Lebenia Velasquez, secretary at

Colonial Drive Elementary School; Barbara Moss, Director with

the Office of Professional Standards; and Paul Greenfield,

Director with the Office of Professional S tandards. The

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

into evidence .

The Respondents presented testimony from Samuel Shames, a

retired electrician II formerly employed by the School Board,

along with current School Board employees : Richard Hammon, an

electrician II; Roger Ball, foreperson for electricians; Keith

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

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

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

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

Maintenance Employee Committee (DCSMEC). Respondents’ Exhibits

1 - 3 were also admitted into evidence. A joint exhibit, the

relevant DCSMEC agreement, was stipulated into evidence by the

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

The transcript of the proceedings was filed with the

Division of Administrative Hearings on November 14, 2005. The

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

to file proposed recommended orders. Both parties timely filed

proposed orders on December 9, 2005.

FINDINGS OF FACT

1. At all times material to the allegations of these

cases, the Petitioner was a duly constituted School Board

charged with the responsibility t o operate, control and to

supervise the public schools within the Miami - Dade County,

Florida public school district. Such authority includes the

personnel decisions for non - instructional persons employed by

the School Board.

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

cases, the Respondents were employed by the School Board as

electricians assigned to work from the Coral Reef Satellite

Maintenance Operations Department (Coral Reef). The Respondents

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

went to the assigned job location to perform their assigned

work.

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

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

machines at the Coral Reef site and each employee is responsible

for personally swiping his identification badge through the

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

arrival and departure for each employee. Thus the daily time

record can be produced for payroll purposes.

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

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

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

5. At all times material to the allegations of these

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

employee personally swipe his identification badge when clocking

in or out.

6. In 1982, the Respondents were arrested for vehicular

theft and possession of burglary tools. The Respondents were

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

burglary and having burglary tools in their possession.

Adjudication was withheld.

7. In 1987, the Respondents completed applications for

employment with the School Board. Such applications were

falsified in that they failed to disclose the arrest and

criminal disposition described above.

8. The Petitioner did not discover the falsified

applications until 1997 , when the fingerprinting of school

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

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

from any further falsification regarding information requested

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

will lead to disciplinary action.”

9. The Respondents did not dispute the prior crimi nal

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

further behavior regarding the falsification of information, and

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

regarding non - instructional personnel.

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

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

possessed the Respondents’ badges in order to swipe them through

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

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

suggested that their badges were either stolen or missing at the

relevant time.

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

Respondents violated the Petitioner’s time clock policy.

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

himself on one time clock then proceeded to the second time

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

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

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

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

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

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

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

it could be swiped at the pertinent time.

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

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

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

the time clock pol icy.

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

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

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

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

performing the work, and the status of the work.

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

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

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

both on arrival and at departure from the job site.

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

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

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

maintenance employee handbook (which is pro vided to or is

available and known to all trades people employed by the

Petitioner) specifically requires that all daily status forms be

dated and then signed by all tradespersons reporting time on the

DSF.

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

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

tradespersons do not take time to locate an appropriate

signatory. Such behavior is in conflict with the policy.

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

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

Senior High School installing a new outlet to eliminate an

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

purportedly signed by Arthur James, a zone mechanic at the

school.

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

Mr. James’ signature on the form.

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

hours at Coral Reef Senior High School installing a new outlet

for the fish tank.

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

went to the Coral Reef Senior High School site several times

attempting to locate the Respondents. No one at the site

verified that the Respondents had been there on that date.

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

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

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

turned in DSFs that were not signed by authorized personnel at

Coral Reef Senior High School. The name purportedly signed on

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

were not completed correctly and cannot support the hours

represented by them.

24. The DSFs claimed the Respondents had spent 78 hours

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

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

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

policy, gotten appropriate signatures on the DSF, the

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

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

site looking for the Respondents on the pertinent dates could

not find them.

25. The Respondents were assigned a large project at the

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

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

Respondents they worked 120 hours at the site over the following

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

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

number of hours a llegedly expended at the site by the

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

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

her constant presence in and near the studio during the

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

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

120 - hour job.

26. Additionally, the Respondents submitted DSFs that were

not signed by the Southwood principal or the principal’s

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

contained the names of persons not employed at Southwood. As

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

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

find the Respondents again violated t he DSF policy.

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

28, 2004. On each of these dates the Respondents submitted DSFs

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

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

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

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

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

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

knew or should have known that the submission of the DSFs

without proper signatories was against policy.

29. Article IV of the DCSMEC contract requires that

employees such as the Respondents be disciplined for “just and

good cause.”

30. The DCSMEC cont ract does not require “progressive

discipline.”

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

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

Union representative present during any conference for the

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

the Respondents were advised that the School Police w ere

conducting an investigation of the matter and waived their right

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

interview with Detective Hodges.

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

At that time the Respondents appeared with a Union

representative. After receiving information regarding the

improper time clock and DSFs, the Respondents were afforded an

opportunity to explain or provi de additional information that

would respond to the allegations.

33. Martin Mikulas recommended to the School

Superintendent that the Respondents be terminated from their

employment with the school district. That recommendation went

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

and initiate dismissal proceedings against the Respondents for

non - performance, deficient performance, and misconduct was

approved.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

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

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

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

to establish by a preponderance of the evidence the allegations

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

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

burden.

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

concluded that the Respondents violated the time clock policy by

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

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

violated the policy by clocking out for his brother.

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

concluded the Respondents did not complete the DS Fs correctly.

The failure to assure that the DSFs were accurately completed

constitutes non - performance of their duties and/or deficient

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

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

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

performing the work can be tracked and appropriately assigned to

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

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

case, the Respondents circumvented that process.

38. These employees knew that the School Board does not

tolerate the falsification of information. In 1997 they were

fully warned that any future falsification could result in

disciplinary measures .

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

of conduct. Employees are expected to conduct themselves in a

manner that will reflect credit upon themselves and the school

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

is c oncluded that not only did the Respondents not conduct

themselves in that manner, they caused or presented false

records which the School Board cannot through any independent

means correct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of

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

County, Florida enter a Final Order approving the suspensions

and dismissals of the Respondents.

DONE AND ENTERED this 1st day of February , 2006 , 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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2006 .

COPIES FURNISHED :

Dr. Randolph F.Crew

Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue No. 912

Miami, Florida 33132 - 1394

Honorable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert A. Sugarman, Esquire

Sugarman & Susskind, P.A.

2801 Ponce de Leon Boulevard

Suite 750

Coral Gables, Florida 33134

Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second A venue

Suite 400

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 case.