07-005130 Lee County School Board vs. Julius Balogh Status: Closed Recommended Order on Tuesday, March 18, 2008.

Summary: Respondent stopped an empty school bus in front of a package store and purchased alcoholic beverage while on duty. Although purchased for medicinal purposes, Petitioner has just cause to terminate pursuant to School Board Policy 5.33 and 5.37.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-5130

)

JULIUS BALOGH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard before Daniel M.

Kilbride, Administrative Law Judge of the Division of

Administrative Hearings, on January 17, 2008, in Fort Myers,

Florida.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2055 Central Avenue

Fort Myers, Florida 33901

For Respondent: Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent's

employment as an educational support employee based on the

incident that occurred on May 16, 2007.

PRELIMINARY STATEMENT

On November 6, 2007, Petitioner suspended Respondent

without pay and notified Respondent that Petitioner intended to

seek termination of Respondent's employment. Respondent timely

requested an administrative hearing. Petitioner referred the

matter to the Division of Administrative Hearings (DOAH) to

conduct the administrative hearing and discovery followed. A

Joint Pre-hearing Stipulation was filed on January 10, 2008.

At the hearing, Petitioner did not present the testimony of

witnesses, relying instead on the admitted facts contained in

the Joint Pre-hearing Stipulation. Petitioner offered one

exhibit, containing tabs one through seven, which were admitted

into evidence. Respondent presented the testimony of three

witnesses: Craig Baker, Petitioner's investigator; Joe B.

Howard, Petitioner's supervisor of transportation east; Edith

Balogh, Respondent's wife; and Respondent testified in his own

behalf. Respondent offered 18 exhibits, which were admitted

into evidence.

The Transcript was filed on February 6, 2008. Respondent

filed a motion for extension of time to file proposed

recommended orders. The motion was granted, and each party

timely filed their respective Proposed Recommended Orders on

February 28, 2008. Each proposal has been carefully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Julius Balogh, has been employed with

Petitioner, Lee County School Board ("the District"), since

October 17, 2002. He is currently assigned as a Bus Operator in

the Transportation Department. Respondent's annual contract

with Petitioner was renewed for each of the school years: 2003-

2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008.

2. Since Respondent commenced working for Petitioner in

October 2002, he has received five annual performance

assessments. With the exception of Respondent's first year when

he received three scores of "inconsistently practiced" out of 32

areas targeted for assessment, Respondent always scores at an

"effective level of performance" in all areas targeted for

assessment. The "comment" section for Petitioner's 06/07

performance assessment stated he was "a good worker, helpful,

dependable and a joy to work with." On his 05/06 assessment,

the assessor wrote in the "comments" section "Great job. Julius

takes personal satisfaction in job and cares about his students.

Continues to grow."

3. During the five years Respondent has been employed with

Petitioner, he has had a perfect attendance record. Aside from

the present charges, he has never before been the subject of any

disciplinary action.

4. Respondent is an "educational support employee," as

defined by Subsection 1012.40(1)(a), Florida Statues (2007), and

is governed by the Collective Bargaining Agreement between the

School Board and the Support Personnel Association of Lee County

("SPALC"). The standard for the discipline of support personnel

is "just cause," pursuant to Article 7 of the SPALC Agreement.

5. On May 16, 2007, Respondent reported for duty at

4:49 a.m. He completed his morning shift at 10:07 a.m. He was

then required to submit to a random drug and alcohol screening,

which he passed.

6. After dropping-off all students at their bus stops,

Respondent was returning to the bus compound while following his

regularly-scheduled route. While on duty and in uniform,

Respondent parked his bus in front and entered the San Carlos

Package Store. Respondent's stated reason for entering the

store was for the intended purpose of purchasing an herbal

extract product called St. Hubertus for his wife.

7. St. Hubertus is an herbal product that Respondent's

wife administers to herself daily, in her evening cup of tea, to

alleviate digestive problems and stomach pain resulting from

various medications she is prescribed. St. Hubertus is

35 percent alcohol by volume. Respondent and his wife regularly

purchase St. Hubertus while visiting their country of origin,

Hungary. Edith Balogh returns there annually for medical

treatment. Edith Balogh's Hungarian physician first recommended

St. Hubertus for her some 10 to 15 years ago to relieve her

stomach pain.

8. Edith Balogh had exhausted her annual supply of

St. Hubertus sometime prior to May 2007. Although she and

Respondent were scheduled to fly to Hungary on May 21, 2007, she

was experiencing severe stomach pain and related symptoms. She,

therefore, had asked her husband to attempt to procure the

product locally.

9. Respondent unsuccessfully sought to obtain the product

at several stores prior to May 16, 2007. Ultimately, Respondent

was told by a pharmacist that he might be able to find the

product at the San Carlos Package Store. Since the San Carlos

Package Store was located on Respondent's direct route to the

bus compound, and because the weather was intemperate,

Respondent did not want to backtrack after concluding his shift.

Respondent decided to stop at the San Carlos Package Store for

the purpose of purchasing the St. Hubertus product.

10. Before stopping at the package store that day,

Respondent had not used either of his two 15 minute breaks. He

stopped at the store at approximately 6:45 p.m., clocked out of

work at 7:17 p.m., and drove the approximately four miles from

the store to the compound before clocking out. Respondent thus

did not exceed the personal time Petitioner otherwise allowed

its employees for their daily breaks.

11. When Respondent inquired about the availability of

St. Hubertus, the sales clerk advised him that he would have to

order it and it would take three to six weeks to receive it.

Respondent explained the urgency of obtaining the product, and

the clerk recommended a similar product called "Jagermeifter."

Respondent purchased two 50 ml bottles of Jagermeifter.

12. The label on the bottles of Jagermeifter were in

German and English. Respondent speaks German. The label

described the product in German as "noble herb tea extract."

The label also stated, in English, that the product contained 35

percent alcohol by volume (70 Proof).

13. Respondent purchased the two bottles of Jagermeifter,

placed them in a ziplock bag, secured them in his briefcase, and

returned to his bus. Respondent then drove directly to the bus

compound.

14. As Respondent was pulling into the compound he

received a cell phone call from the afternoon supervisor, Robert

Schwartz, advising him that he was observed purchasing liquor

and that he was suspended from operating the bus. Respondent

clocked out and went home. Joe Howard, another supervisor,

checked Respondent's bus for open alcohol containers the

following day and found no such evidence. As had previously

been approved, Respondent did not return to work prior to his

departure for Europe.

15. Respondent took the Jagermeifter product home with him

on May 16, 2007, and presented it to his wife. Edith Balogh

used the Jagermeifter as a substitute for St. Hubertus, and

while it was not as effective as St. Hubertus, the Jagermeifter

product did help to alleviate her stomach pain.

16. Respondent testified that he believed he was

purchasing a medicinal product, not an alcoholic beverage, when

he bought the two small bottles of Jagermeifter. Respondent

credibly explained that the reason he purchased the product was

not for personal consumption, but for his wife's medicinal use.

17. Respondent testified that he no longer consumes

alcohol. Edith Balogh, Respondent's wife of 54 years, confirmed

that Respondent does not drink alcohol and has not consumed any

for approximately 45 years.

18. Joe Howard's (Howard) testimony relating to

Respondent's alleged admission that he would often purchase a

"medicinal" product for his and his wife's consumption is not

reliable. He did not make notes of the conversation, which

occurred some eight months before the hearing. He offered

conflicting testimony about who was present when the

conversation occurred and was imprecise about whether Respondent

admitted to regularly consuming Jagermeifter or whether he

merely was admitting to intending to consume one of the bottles

of the product purchased on May 16, 2007. Howard also failed to

mention the alleged admission in the course of Petitioner's

investigation.

19. The greater weight of the evidence supports the

testimony of Respondent and his wife that Respondent does not

consume alcohol. Therefore, there is insufficient evidence to

believe that Respondent intended to consume any of the

Jagermeifter himself.

20. Although Respondent's motive for purchasing the

Jagermeifter product was for a medicinal purpose to alleviate

his wife's chronic stomach pain, the product was not sold in a

drug store as an over-the-counter medicinal product. The

product was marketed and sold as an "alcoholic beverage" in a

package store. The words on the label, "noble herb tea

extract," were only written in German.

21. Respondent parked the school bus in front of the

package store, entered the package store while in uniform,

purchased an alcoholic beverage, took it back to his bus, and

returned to the bus compound, all while on duty. Respondent's

stated reason that he did not first return the bus, clock out,

and then return to the package store in his own vehicle was

because it was raining and he was in a hurry to get the product

home to his wife, is unsatisfactory.

22. Respondent's effectiveness in the school system was

impaired by purchasing the product while on duty and in uniform

and returning with it on the bus to the compound. Respondent

was in possession of alcohol under circumstances that would

affect the efficient operation of the District's business or the

safety of its employees and students or the public.

23. Petitioner has adopted disciplinary guidelines for

transportation employees. Under the facts of this case, the

proper penalty for Respondent's misconduct in this case is

disciplinary action up to and including termination.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings, pursuant to Section 120.569 and Subsections

120.57(1) and 1012.33(6)(a), Florida Statutes (2007), 1 and School

Board Policy 1.80(6)(c).

25. As bus operator, Respondent is an "educational support

employee," as defined by Subsection 1012.40(1)(a), Florida

Statutes.

26. The superintendent of the District has the authority to

recommend to the School Board that educational support employees

be suspended and/or dismissed from employment. § 1012.27, Fla.

Stat.

27. The School Board has the authority to terminate and/or

suspend without pay educational support employees.

§§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.

28. An educational support employee can only be terminated

for the reasons set forth in the Collective Bargaining Agreement

(SPALC), which governs these employees. § 1012.40(2)(b), Fla.

Stat. According to the applicable Collective Bargaining

Agreement, support employees can only be terminated for "just

cause." SPALC at 7.09.

29. "Just cause" is not defined in the SPALC agreement nor

does it provide for a progressive discipline plan. In the

absence of some rule defining just cause, Petitioner has

discretion (subject to challenge via a hearing) in setting

standards which subject an employee to discipline. See Dietz v.

Lee County School Board , 647 So. 2d 217 (Fla. 2d DCA 1994).

30. In the case of support personnel, "just cause" may

include, but is not limited to, misconduct in office,

incompetence, gross insubordination, willful neglect of duty, or

an act involving moral turpitude as such are defined by the State

Board of Education rules. Lee County School Board v. Kehn , 2005

WL 428965 (Fla. Div. Admin. Hrgs.), citing Lee County School

Board v. Simmons , 2003 WL 21673031 (Fla. Div. Admin. Hrgs.).

31. Prior cases before DOAH involving the Petitioner and

support personnel have held that the Petitioner can construe

"just cause" in the same manner as it is used in Section

1012.33, Florida Statutes (2006), for instructional staff. Most

recently in Lee County School Board v. Denson , Case No. 06-4995

(DOAH April 18, 2007) (Support employee recommended for

termination for striking lawn maintenance worker), this tribunal

held that misconduct, as defined by State Board of Education in

Florida Administrative Code Rule 6B-4.009, applies to support

personnel.

32. Florida Administrative Code Rule 6B-4.009 refers to

Rule 6B-1.001 and Rule 6B-1.006 in defining misconduct. Florida

Administrative Code Rule 6B-1.001 states that employees should

be held to the highest degree of ethical conduct. Respondent's

conduct violated Florida Administrative Code Rule 6B-1.001.

33. School Board Policy 5.37, Alcohol, Drug and Tobacco-

Free Workplace , was promulgated pursuant to Section 440.102,

Florida Statutes. The policy states, in pertinent part:

"Employees are prohibited from using or possessing alcohol while

in or on District property . . ." -- Policy 5.37 (2)(b). The

policy further states, "Employees who violate paragraphs 2(a)

and/or 2(b) shall be subject to disciplinary action up to and

including termination." -- Policy 5.37(8).

34. Article 16 of the SPALC Agreement is entitled, "Alcohol

and Drug Free Workplace." Section 16.01 provides:

No employee shall possess, consume or sell

alcoholic beverages or . . . possess or use,

on the job or in the workplace, any narcotic,

drug, amphetamine, barbiturate, marijuana or

any other controlled substance, as defined in

the Controlled Substances Act (21 U.S.C.

812), and as further defined by regulations

at 21 CFR 13001.11 through 1300.15, or by

Florida Statutes, Chapter 893.

35. School Board Policy 5.33, Personal Business on School

Time , states, "no employee may conduct personal business on

school time except for emergencies approved by the principal or

Superintendent." Policy 5.33(1).

36. Respondent admits that he brought an alcoholic beverage

onto the school bus and placed it in his briefcase on the bus in

violation of the above policy.

37. Respondent admits that he stopped at the San Carlos

Lounge while on duty as a bus operator and purchased two bottles

of Jagermeifter. Respondent failed to advise the appropriate

District personnel that he had conducted personal business on

District time. Respondent was paid for his time while conducting

personal business.

38. Petitioner has the burden of establishing just cause by

a preponderance of the evidence. McNeill v. Pinellas County

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

39. Petitioner has established by a preponderance of the

evidence that Respondent committed a serious violation of School

Board Policies 5.37 and 5.33, and Section 16.01 of the SPALC

Agreement. These violations constitute just cause for

termination.

40. Respondent attempted to mitigate his conduct by

testifying that he purchased the Jagermeifter for his ill

spouse, who desperately needed the product to settle her stomach

prior to their departure for Europe. Respondent also testified,

on cross-examination, that he had previously attempted to

purchase the preferred product, St. Hubertus, on weekends or

after hours at various stores throughout Lee County.

41. Respondent wife, Edith Balogh, testified that she has

been taking St. Hubertus for ten to 15 years and stated that she

purchased the product in Hungary and that she was aware that it

had alcohol in it. She testified that she possibly ran out in

February, March or April and that Respondent had been attempting

to purchase the product since that time. In addition,

Mrs. Balogh admitted that she had consumed Jagermeifter prior to

May 2007 and that she was aware that it was purchased at a

liquor store and not a pharmacy.

42. Respondent testified proudly regarding the length of

his marriage and the fact that all he was concerned about was

his wife's health. Respondent attempted to describe his wife's

situation as dire and that it was absolutely necessary for him

to purchase the Jagermeifter on the date and time in question,

even though his wife had been without St. Hubertus for as long

as three months prior to the incident in question. Respondent's

testimony regarding his wife's condition and his mitigation

regarding the purpose for purchasing the Jagermeifter is

credible, but not exculpatory.

43. Respondent violated School Board Policy 7.04-- Driving

and Replacing District Vehicles . Policy 7.04(3) states,

"Employees who drive District-owned, leased, or rented vehicles

shall:

(a) Use the vehicle strictly for approved

District business.

(b) Operate the vehicle in accordance with

all applicable laws.

* * *

(f) Prohibit anyone from driving a District

vehicle while impaired (under the influence

of alcohol, drugs, prescribed medication,

etc.) or in violation of the Florida traffic

laws."

44. Respondent's explanation of his conduct, even though

credible, only explains why he may have chosen to purchase

alcohol while on District time and bring it on a District school

bus. It does not excuse his behavior, nor provide a basis to

recommend to Petitioner that the District must continue to

employ Respondent.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

Recommended that Petitioner, Lee County School Board enter a

final order dismissing/terminating Respondent, Julius Balogh,

from his position as an employee with the Lee County School

District.

DONE AND ENTERED this 18th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of March, 2008.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2007), unless otherwise indicated.

COPIES FURNISHED :

Robert Dodig, Jr., Esquire

School District of Lee County

2055 Central Avenue

Fort Myers, Florida 33901

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

Dr. James W. Browder

Superintendent

School Board of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department 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.