06-002398 Miami-Dade County School Board vs. Robert Kuse, Jr. Status: Closed Recommended Order on Friday, July 13, 2007.

Summary: Respondent violated Responsibilies and Duties and Code of Ethics by being out of his assigned work area, using Petitioner`s vehicle for personal use, and failing to properly complete his Daily Status Form Recommend a 30-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2398

)

ROBERT KUSE, JR., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final heari ng was held in this case

on November 20 , 200 6, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jean Marie Middleton , Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: David H. Nevel , Esquire

Nevel & Greenfield , P.A.

4801 South Univers ity Drive, Suite 2060

Davie, Florida 33328

STATEMENT OF THE ISSUE S

The issue s for determination are whether the conduct of

Respondent was in violation of the employment practices and

policies of the Miami - Dade County School Board; and wh ether the

conduct of Respondent, taken in light of his prior employment

record and the requirements of progressive discipline,

constituted just cause for termination . 1

PRELIMINARY STATEMENT

By letter dated June 15 , 2006, the Miami - Dade County School

Board, hereinafter Scho ol Board, notified Robert Kuse, Jr. ,

among other things, that the School Board, a t its scheduled

meeting on June 14 , 2006, took action to suspend him from

employment and commence dismissal proceedings against him . By

letter dated June 17, 2006, Mr. Kuse contested the School

Board's action and requested a hearing. On July 10 , 2006, this

matter was referred to the Division of Administrative Hearings.

On July 26 , 2006, the School Board filed a Notice of

Spec ific Charges, consisting of two co unts. The School Board

charged Mr. Kuse as follows: Count I, violation of School Board

Rule 6Gx13 - 4A - 1.21 , Responsibilities and Duties in that his

criminal history and actions fail to reflect credit upon himself

or the community and that his violation of School Board Rule

6Gx13 - 4A - 1.21 constitutes misconduct in office and is just cause

for termination ; and Count II, violation of the Code of

Ethics/Lack of Good Moral Character in that his criminal history

and actions demonstrate a lack of good moral charact er, that his

actions violate Sections 1012.32 and 1012.33, Florida Statutes

(2004), and Florida Administrative Code Rules 6B - 1.001, 6B -

1.006, and 6B - 4.009, and that his violation of the ethical rules

constitutes misconduct in office and is just cause for

t ermination.

This matter was originally scheduled for hearing , after

consultation with the parties, for two days on October 18 and

19, 2006. A continuance was requested by the parties and was

granted. The matter was re - scheduled. Prior to hearing, the

pa rties filed a Joint Pre - Hearing Stipulation and, subsequently,

an Amendment to Joint Pre - Hearing Stipulation on November 15,

2006. The Amendment limited the issues and evidence in this

matter to "(A) Whether the conduct of Respondent [Mr. Kuse] was

in vio lation of the employment practices and policies of the

Miami Dade County School Board of the Miami Dade County School

Board [sic]; and (B) Whether the conduct of the Respondent

[Mr. Kuse], taken in light of his prior employment record and

the requirements of progression discipline, constituted just

cause for his termination." Moreover, the parties agreed that

any allegation or evidence concerning the publicity in the case

at hand would not be presented to or considered by the

undersigned in the determinati on of the case at hand.

At hearing, the School Board presented the testimony of

five witnesses, including Mr. Kuse, and entered 11 exhibits

(Petitioner's Exhibits numbered 1 , 3 - 4, 8 - 9, 11 - 12, and 17 - 20 )

into evidence. 2 Mr. Kuse testified in his own behalf and

presented the testimony of one witness and entered no exhibits

into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissions was

set for more than ten days following the filing of the

transcript. T he Transcript, consisting of two volume s, was

filed on March 6 , 2007. Subsequently, on April 12 , 2007,

Mr. Kuse requested an extension of time to file post - hearing

submissions, to which the School Board agreed ; the request was

granted. The parties timely filed post - hearing submissions, and

their post - hearing submissions have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that , at all times material hereto,

the School Board wa s a const itutional entity charged with the

duty to operate, control and supervise the public schools within

the school district of Miami - Dade County, Florida.

2. No dispute exists that, since February 21, 1986 and at

all t imes material hereto, Mr. Kuse was employe d full - time with

the School Board as a n electrician and assigned to Facilities

and Operations - Maintenance . Hence, Mr. Kuse has been employed

with the School Board in the same position for more than 20

years.

3. Except for the case at hand, Mr. Kuse has only been

disciplined once in his more than 20 - year employment with the

School Board. As to the prior disciplinary action, i n essence ,

in 1999 , Mr. Kuse had, what he considered , an emergency

involving his minor child at school and left his work

assignment , in a School Board vehicle and without notifying his

supervisor, to attend to his child , who was in kindergarten and

who was ill . He received a written reprimand, in which he was

advised , among other things, that he was not to use a School

Bo ard vehicle for personal use; that he was to notify his

supervisors if he needed emergency leave or to deviate fr om his

work assignment; and that he needed to adhere to the proper

completion of Daily Status Forms (he failed to properly indicate

on his Daily Status For m his whereabouts and his work time

regarding the emergency with his child) .

4. As to the instant case, i n 2005, t he School Board

investigated an allegation that, on or about January 20, 2005

through January 29, 2005, Mr. Kuse failed to adhere to his work

schedule by not being pre sent at his assigned worksite during

the period of time that he was assigned to be at the worksite .

During its investigation, the School Board was able to confirm

only one instance , January 28, 2005, t hat Mr. Kuse did not

adhere to his work schedule. The School Board determined that

Mr. Kuse was out of his assigned work area without

authorization; had misrepresented his whereabouts and times on

his Daily Status Forms; and ha d used a School Board vehicle

without authorization. By memorandum dated May 17, 2005,

Ignacio Palacio, Director of Region Maintenance Center II,

recommended terminating Mr. Kuse's employment with the School

Board. By memorandum dated May 20, 2005, Robert Brown,

Administrative Director of Facilities Operation s, Maintenance

recommended termination of Mr. Kuse's employment.

5. By letter dated June 15, 2006, the School Board

notified Mr. Kuse, among other things, that the School Board, at

its scheduled meeting on June 14, 2006, took action to suspend

him from em ployment and co mmence dismissal proceedings against

him, effective at the close of the work day on June 14, 2006,

"for just cause, including but not limited to: non - performance

and deficient performance of job responsibilities; misconduct in

office; and vi olation of School Board Rule 6Gx13 - 4A - 1.21 ,

Responsibilities and Duties. . . ."

6 . Mr. Kuse's hours of work, as an elect rician with the

School Board, w ere 7:00 a.m. to 3:30 p.m. He was aware of his

break time and the time allotted for break time; that a School

Board's vehicle is not to be used for personal errands; and that

he needs his supervisor's permission to use a School Board's

vehicle for pers onal errands. Also, Mr. Kuse was aware of the

Daily Status Form, its purpose, and how to complete it.

7 . At hearing, Mr. Kuse admitted that he was at a

restaurant during the period of time that he was assigned to a

worksite but did not admit to the dates or the number of times

that such act ion had occurred. He further admitted that he was

taking a coffee bre ak or having coffee at the restaurant before

he reached his assigned worksite ; that he did not contact a

supervisor to obtain permission to do so; that he did not

reflect the break on his Daily Status Forms; and that he had not

contacted a supervisor to ob tain permission to use the School

Board vehicle to take the break.

8 . The School Board's "Breaktime and Mealtime Policy for

Employees" states in pertinent part:

BACKGROUND

Employees shall not deviate from their

assigned schedules without first acquiring

p ermission form their supervising

administrators who are to be informed of the

reasons for leaving, the destination, and

the estimated return time to assignments.

If the employees cannot locate their

supervising administrator(s), a detailed

message is to b e left with another

administrator or clerical personnel from the

administrator's office. . .

To insure that all employees are informed of

when the break time shall be taken, the

following information is published.

* * *

First Shift

* * *

9:1 5 - 9:30 a.m. Break (Approx.)

* * *

1:45 - 2:00 p.m. Break (Approx.)

* * *

Note: The break time is listed as an

approximated time that is contingent upon

the work being completed. The break time

can be adjusted, within reason, to

accommodate av oiding an interruption in the

flow of work.

* * *

The following standards are published to

guide employees in the use of this benefit:

BREAKTIME

a. Breaks shall be taken at the scheduled

times, and AT THE WORK LOCATION SITE.

Employees are not to l eave the worksite

during break time with the exception that,

if several employees are assigned to a

worksite, one employee may leave the site

during the break time to obtain refreshments

for the others. . . Board [School Board]

owned vehicles may NOT be us ed for this

purpose.

* * *

c. If an employee reaches a scheduled break

time while traveling from one work location

to another, s/he SHALL NOT stop enroute, but

shall wait until arrival at the destination

to take a break.

d. The use of Board - owned v ehicles to

travel to restaurants for breaks, or to pick

up refreshments to bring back to the work

location is considered to be personal

business, and is expressly FORBIDDEN.

[emphasis in original ]

9 . The School Board's policy regarding " Daily Status

F orms " provides in pertinent part:

DEFINITION

The Daily Status Form is used to document

and record actual travel and labor hours for

every tradesperson. The form must be

completed entirely and accurately in order

to properly document not only the

tradesper sons [sic] daily activities but to

RECORD those activities and their

corresponding labor costs to the specific

project where the work took place. Once

properly completed and endorsed by the

tradesperson, the daily status form [sic]

becomes an official doc ument thus creating

an auditable representation of the

tradespersons [sic] activities. . .

NOTE

It is MANDATORY that Daily Status Forms are

properly completed and turned in on the same

day the work is performed. Failure to

follow this note, any of the st eps outlined

in this procedure, or providing false

information on the DSF may result in

disciplinary action.

PROCEDURES

General Conditions:

1. All Daily Status Forms (DSF's) must be

dated and then signed by all tradespersons

reporting time on the DSF.

2. Arrival and departure times, at the

school site or other work location, must be

completed before obtaining the principal's

signature. . .

3. In cases when the principal is not

available, the principal may specifically

authorize a representative to sign on

his/her behalf. However, under no

circumstances can this representative be the

Custodian or Zone Mechanic.

4. Upon arrival at the school site, the

trades person [sic] will tim e stamp the back

of the DSF . . .

5. Upon Departure from the school site, t he

trades person [sic] will time stamp the back

of the DSF . . . .

[emphasis in document]

10 . Mr. Kuse's supervisor, during the time that the

allegations were pending before the School Board, was Gary

Spake, who testified at the hearing. Mr. Spake test ified that

he had been employed with the School Board for approximately 24

years and that he had heard of employees stopping for coffee

before reaching their assigned worksite but had never witnessed

or confirmed such conduct and that he did not consider s uch

conduct common practice. Also, he testified that, approximately

10 times, he had stopped for coffee before reaching a worksite

and had not been disciplined for doing so. Moreover, Mr. Spake

testified that he is not aware of any employee who had been

terminated for stopping for coffee before reaching an assigned

worksite. Furthermore, he testified that he did not recommend

terminating Mr. Kuse. The undersigned finds Mr. Spake's

testimony to be credible and persuasive.

11 . One of Mr. Kuse's former su pervisors, Michael

Swackhammer, testified at hearing. Mr. Swackhammer has been

employed with the School Board for over 20 years and had

supervised Mr. Kuse, off and on, for approximately 18 years.

Mr. Swackhammer testified that it was "customary" for wor kers to

stop for coffee, without obtaining permission, before reporting

to a worksite, but that the workers , who he had observed

engaging in such conduct, were not supervised by him and he did

not report them even though they were violating the School

Boar d's policy. However, he further testified that he had not

observed such conduct by employees since 1999. Furthermore,

Mr. Swackhammer testified that he was aware of two employees

being disciplined , i.e., suspended, for violating the School

Board's policy regarding break time and unauthorized use of a

School Board vehicle, but that he was not aware of any employee

being terminated for such conduct. Mr. Swackhammer's te stimony

is found to be credible and persuasive.

12 . Mr. Palacio , who has been employed with the School

Board for approximately 25 years, testified at hearing. He

testified that employees are expected to abide by the break time

policy and that it was not common knowledge that employees

stopped for coffee before they reached their assigned wo rksite.

As to Daily Status Forms, he testified that the employee was

responsible for making sure that it was accurate and that

Mr. Kuse's Daily Status Forms were not accurate. Further,

Mr. Palacio admitted that only one day, January 28, 2005, was

confirm ed that Mr. Kuse failed to adhere to his work schedule.

Moreover, he testified that he was not aware of any employee who

was terminated for stopping for coffee before reaching the

assig ned worksite and not putting such information on the Daily

Status Form . Further, Mr. Palacio was aware of Mr. Kuse's

reprimand in 1999 when he (Mr. Palacio) recommended termination

of Mr. Kuse's employment. The undersigned finds Mr. Palacio's

tes timony credible and persuasive , except for his testimony that

it was not commo n knowledge that employee's stop ped for coffee

before reaching their assign ed worksite.

13 . Mr. Brown , who has been employed with the School Board

for more than 20 years, testified at hearing. He testified that

he was not aware that employees stopping fo r coffee , be fore

reaching their worksite, was customary or a common practice .

However, he testified as to a practice of some employees

stopping for breakfast: a group of employees, referred to as the

"Breakfast Club," were meeting for breakfast, as a comm on

practice, and, when administrators discovered it, the employees

were suspended and the practice ceased. Regarding the Daily

Status Form, he testified that the employee is responsible for

its accuracy and that, as to the Daily Status Form for

January 28 , 2005, it reflected an insufficient description of

time, thereby, leaving unaccounted time. 3 Regarding the penalty

for using School Board vehicles for personal use and improperly

maintaining time and Daily Status Forms , Mr. Brown testified

that the usual penalty imposed for a first off ense was

suspension from 5 to 15 days. Furthermore, Mr. Brown testified

that, had it not been for Mr. Kuse's reprimand in 1999, he

(Mr. Brown) would not have recommended termination. Mr. Brown's

te stimony is found to be cr edible and persuasive. As to

Mr. Brown's testimony concerning his awareness of a customary or

common practice of employees stopping for coffee before reaching

their worksite , the undersigned finds it reasonable for

administrators not being aware of such c onduct by employees

unless and until employees are reported for disciplinary action,

as in the case of the Breakfast Club. Further, an inference is

drawn and a finding of fact is made that Mr. Brown's reference

to suspension as a disciplinary action refer s to suspension

without pay.

14 . As to Mr. Kuse's work performance as an employee, when

Mr. Swackhammer supervised Mr. Kuse, off and on, for

approximately 18 years, he found Mr. Kuse to be a hard worker

and consistent in his attendance. When Mr. Spake su pervised

Mr. Kuse, from May 7, 2006 through around August 7, 2006,

Mr. Kuse's accomplished the tasks that were given to him and he

(Mr. Kuse) performance was of high caliber. None of the other

School Board employees who testified at hearing directly

super vised Mr. Kuse and any of their testimony regarding

Mr. Kuse's work performance is not found to be credible and

persuasive . The testimony of Messrs. Swackhammer and Spake is

found to be credible and persuasive.

15. The evidence demonstrates that Mr. Kuse was out of his

assigned work area without authori zation in that he stopped for

coffee break s at a restaurant, before reaching his assigned

worksite, thereby, deviating from the break requirements of the

School Board's policy , without obtaining his supervi sor's

permissi on .

16. The evidence demonstrates that Mr. Kuse used the

School Board's vehicle for personal use , without authorization ,

in that he used the School Board's vehicle, without

authorization, to take coffee break s at a restaurant before

reaching his assigned worksite.

17. The evidence demonstrates that Mr. Kuse did not

properly complete his Daily Status Form for January 28, 2005, by

failing to provide sufficient information on his Daily Status

Form to indicate his whereabouts and times involv ed.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2006).

19 . The School Board has the burden o f proof to show by a

preponderance of the evidence that Mr. Kuse committed the

offenses in the Notice of Specific Charges , as modified by the

Joint Pre - Hearing Stipulation and Amendment to Joint Pre - Hearing

Stipulation . McNeil v. Pinellas County School Bo ard , 678 So. 2d

476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County ,

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

20 . No dispute exists that at all t imes material hereto,

Mr. Kuse was subject to the rules and regulations of the School

Board and that his em ployment was also subject to the terms and

conditions of the contract betw een the School Board and the Dade

County Public School Maintenance Employee Committee (Contract) .

21 . Section 1012.22, Flor ida Statutes (2004 ), provides in

pertinent part:

The distr ict school board shall:

(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 c hapter:

* * *

(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.

22 . The Contract provides in pertinent part:

ARTICLE XI - DISCIPLINARY A CTION

* * *

Section 3. Dismissals, Suspensions,

Demotions

Employees dismissed, suspended, or demoted

shall be entitled to appeal such action to

an impartial Hearing Officer. . . If the

employee is not employed . . . during the

time of appeal of such dismissal,

suspension, or demotion, and if reinstated

by Board action, the employee shall receive

payment for the days not worked, or salary

not received, and shall not lose any

longevity or be charged with a break in

service due to said dismissal, suspen sion,

or demotion.

Section 4. Cause for Suspension

In those cases where any employee has not

complied with Board policies and/or

department regulations, but the infraction

is not deemed serious enough to recommend

dismissal, the department head may recom mend

suspension up to 30 calendar days without

pay. All suspensions must be approved by

the Superintendent.

23. The School Board contends that just cause exists for

the suspension and termination of Mr. Kuse.

24. As agreed to by the parties, the first issue in the

instant case is whether the conduct of Mr. Kuse was in violation

of the employment practices and policies of the Miami - Dade

County School Board. By the parties agreeing to limit the

issues and the evidence and testimony presented in the insta nt

case, any criminal history of Mr. Kuse was eliminated from the

Notice of Specific Charges and from consideration by the

undersigned.

25. The School Board's interpretation of its own rules is

given great deference unless it amounts to an unreasonable

in terpretation or is clearly erroneous. Woodley v. Department

of Health and Rehabilitative Services , 505 So. 2d 676, 678 (Fla.

1st DCA 1987).

26. School Board Rule 6Gx13 - 4A - 1.21 , Responsibilities and

Duties, provides in pertinent part:

I. Employee Conduct

All persons 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 ref lect credit upon themselves and

the school system.

* * *

II. Records and Reports

All personnel shall maintain, prepare, and

submit promptly all reports that may be

required by State Law, State Department of

Education Rules, School Board Rules, and

a dministrative directives.

* * *

VI. Non - Instructional Personnel

Members of the non - instructional staff shall

maintain all certifications, licenses and

job requirements as a condition of

employment. Failure to do so shall warrant

disciplinary action up to and including

dismissal from all employment.

Any loss of certification, license or other

job requirement shall immediately be

reported by the non - instructional staff

member to his/her site supervisor. Failure

to do so shall constitute a violation of

this rule.

27. School Board Rule 6Gx13 - 4A - 1.213 , Code of Ethics,

provides in pertinent part:

I. INTRODUCTION

All members of The School Board of Miami -

Dade County, Florida, administrators,

teachers and all other employees of Miami -

Dade County Public Schools, regardless of

their position, collective bargaining status

or role, because of their dual roles as

public servants and educators are to be

bound by the following Code of Ethics. . .

* * *

Further, nonacademic and elected officials

are bound to accept these principles since

these groups reflect critical policy

direction and support services for the

essential academic purpose.

II. APPLICATION

This Code of Ethics applies to all members

of The School Board of Miami - Dade County,

Florida, admini strators, teachers, and all

other employees. . .

Employees are subject to various other laws,

rules, and regulations, including but not

limited to “The Code of Ethics for the

Education Profession in Florida and the

Principles of Professional Conduct of t he

Education Profession in Florida,” Chapter

6B - 1.001 and - 1.006, F.A.C., the “Code of

Ethics for Public Officers and Employees,”

found in Chapter 112, Part III of the

Florida Statutes, and School Board Rule

6Gx13 - 4A - 1.212 , Conflict of Interest, which

are incorporated herein by reference and

this Code of Ethics should be viewed as

additive to these laws, rules and

regulations. To the extent not in conflict

with any laws, School Board rules or

governmental regulations, this Code of

Ethics shall control with regard to conduct.

In the event of any conflict, the law,

regulation or School Board Rule shall

control.

III. FUNDAMENTAL PRINCIPLES

The fundamental principles upon which this

Code of Ethics is predicated are as follows:

Citizenship – Helping to crea te a society

based upon democratic values; e.g., rule of

law, equality of opportunity, due process,

reasoned argument, representative

government, checks and balances, rights and

responsibilities, and democratic decision -

making.

Cooperation – Working toget her toward goals

as basic as human survival in an

increasingly interdependent world.

Fairness – Treating people impartially, not

playing favorites, being open - minded, and

maintaining an objective attitude toward

those whose actions and ideas are different

from our own.

Honesty – Dealing truthfully with people,

being sincere, not deceiving them nor

stealing from them, not cheating or lying.

Integrity – Standing up for your beliefs

about what is right and what is wrong and

resisting social pressure to do w rong.

Kindness – Being sympathetic, helpful,

compassionate, benevolent, agreeable, and

gentle toward people and other living

things.

Pursuit of Excellence – Doing your best with

the talents you have, striving toward a

goal, and not giving up.

Respect – S howing regard for the worth and

dignity of someone or something, being

courteous and polite, and judging all people

on their merits. It takes three major

forms: respect oneself, respect for other

people, and respect for all forms of life

and the environme nt.

Responsibility – Thinking before you act and

being accountable for your actions, paying

attention to others and responding to their

needs. Responsibility emphasizes our

positive obligations to care for each other.

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well - being of the students and the

honest performance of professional duties

core guiding principles.

* * *

8. To be efficient and effective in the

delivery of job duties.

IV. CONFLICTS OF INTEREST

* * *

Financial Interest. . . .

* * *

Contracting Decisions. . . .

* * *

Honoraria. . . .

* * *

Personal Advertisements. . . .

* * *

Employee Publications. . . .

* * *

Referrals. . . .

* * *

Outside Income. . . .

* * *

General Limitation on Solicitation. . . .

* * *

Gifts and Gratuities. . . .

* * *

V. CONDUCT REGARDING STUDENTS

* * *

VI. PERSONNEL MATTERS

Confidentiality. . . .

* * *

Enforcement. . . .

* * *

Certification. . . .

28. The evidence demonstrates that Mr. Kuse's conduct

violated the employment practices and p olicies of the School

Board. Mr. Kuse's following conduct violated the School Board's

"Breaktime and Mealtime Policy of Employees" and the School

Board's polic y regarding "Daily Status Forms": he was out of his

assigned work area without authorization; used the School

Board's vehicle for personal use, without authorization; and did

not properly complete his Daily Status Form for one day.

Further, the evidence d emonstrates that Mr. Kuse's conduct

violated School Board Rule 6Gx13 - 4A - 1.21 , Responsibilities and

Duties, as to Employee Conduct and Records and Reports; and

School Board Rule 6Gx13 - 4A1.213 , Code of Ethics, as to the

fundamental principle of honesty and r esponsibility and not

being efficient and effective in his job duties. Other

employees engaging in the same or similar conduct as a practice

or as being customary does not excuse Mr. Kuse's conduct from

violating the School Board's policies. Further, the practice of

the School Board, when such conduct was reported, was to

discipline the violators.

29. As agreed to by the parties, the next issue in the

instant case is whether the conduct of Mr. Kuse, taken in light

of his prior employment record and the r equirements of

progressive discipline, constituted just cause for termination.

Again, b y the parties agreeing to limit the issues and the

evidence and testimony presented in the instant case, any

criminal history of Mr. Kuse was eliminated from the Notice of

Specific Charges and from consideration by the undersigned.

30. The evidence demonstrates that Mr. Kuse has been

employed with the School Board for more than 20 years; that,

within that more than 20 years of employment , his direct

supervisors rated hi m as being a hard worker and his work

performance as of high caliber; that his one and only prior

disciplinary action occurred in 1999, approximately 6 years

before the instant case, involving an emergency situation with

his minor child, who was ill at sch ool, and because of that

emergency situation, Mr. Kuse received a reprimand for personal

use of a School Board vehicle, without authorization, for

deviating from his work schedule, without authorization, and for

failure to properly complete his Daily Statu s Form; that the

usual disciplinary action imposed for a first offense of

personal use of a School Board vehicle and failure to properly

complete Daily Status Forms is suspension from 5 to 15 days; and

that no employee had been terminated for stopping for coffee

breaks at a restaurant in a School Board vehicle before reaching

their assigned worksite -- even employees who had been

consistently meeting with breakfast, without authorization, were

suspended. Further, the evidence demonstrates that, in the

instan t case, Mr. Kuse stopped for coffee breaks at a

restaurant, before reaching his assigned worksite , in a School

Board vehicle, without authorization, and he indicated

insufficient information on his Daily Status Form for one day.

31. Under the circumstance s of the instant case, the

imposition of termination of employment is too severe in

relation to , i.e., disproportionately related or not reasonably

related to, the seri ousness of Mr. Kuse's conduct and his

employment record . See Collins v. School Board of Dade County,

Florida , 676 So. 2d 1052 (Fla. 3rd DCA 1996); Bell v. School

Board of Dade County, Florida , 681 So. 2d 843 (Fla. 3rd DCA

1996). A suspension is more reasonably related to the

seriousness of Mr. Kuse's conduct and his employment record.

Furt hermore, a suspension of 30 days , without pay, is reasonable

and comports with the Contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Miami - Dade County Scho ol Board enter a

final order suspen ding Robert Kuse, J r. for 30 days without pay

and consistent with the terms and conditions of the Contract

between the Miami - Dade County School Board and the Dade County

Public School Maintenance Employee Committee.

DONE AND ENTERED this 13th day of July 2007, in

Tallahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of July , 2007.

ENDNOTES

1/ The parties filed an Amendment to Joint Pre - Hearing

Stipulation specifying the limited i ssues.

2/ As to the exhibits admitted into evidence, Petitioner's

exhibits were paginated and the following is applicable:

Petitioner's Exhibit 1: admitted only page 23 , which was not

offered for the truth of the matter asserted; Petitioner's

Exhibit 3 : admitted only page 27 but disregard the information

regarding selling movies, the reporter, and the television

station; Petitioner's Exhibit 4: admitted only pages 35, 36, 37,

38, 39, and 40 ; Petitioner's Exhibit 9: struck video t ape and DVD

information ; P etitioner's Exhibit 12: Mr. Kuse requested it to be

admitted and no objection by the School Board; Petitioner's

Exhibit 17: admitted only pages 67, 68, 69, 71, 73, 74, 76, 78,

82, 84, 85, 86, 87, 88, and 97; and Petitioner's Exhibit 20:

admitted only page 152 .

3/ Testimony was presented on other Daily Status Forms, which

testimony indicated that they too contained insufficient or

unclear information to properly establish times.

COPIES FURNISHED:

Jean Marie Middleton, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

David H. Nevel, Esquire

Nevel & Greenfield, P.A.

4801 South University Drive, Suite 2060

Davie, Florida 33328

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School District

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Depart ment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.