08-004213TTS Miami-Dade County School Board vs. Saydel Mas Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, April 26, 2010.

Summary: Petitioner failed to prove contractual relationship or employment relationship for conflict or that Respondent, who left computer in signed-in status, downloaded and viewed sexually inappropriate materials on school computer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4213

)

SAYDEL MAS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on January 30, 2009.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Randy A. Fleischer, Esquire

8258 State Road 84

Davie, Florida 33324

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate Respondent's employment as a Coordinator I in the Facilities Design and Standards Department.

PRELIMINARY STATEMENT

By Notice of Specific Charges filed September 24, 2008,

Petitioner alleged that, from March to September 2007,

Respondent received, in addition to his regular salary from

Petitioner, checks totaling over $17,000 directly from Morales

Moving and Storage Company, a vendor of Petitioner. The Notice

of Specific Charges alleges that Respondent's work computer hard

drive contained "images of nude women, women in bikinis, and

other pornographic photographs," and the images bore

Respondent's user ID.

Count I of the Notice of Specific Charges realleges the

above-cited allegation and alleges that Petitioner's Rule 6Gx13-

4A-1.21 requires all School Board employees to "conduct

themselves, both in their employment and in the community, in a

manner that will reflect credit upon themselves and the school

system." Count I alleges that the receipt of funds directly

from a vendor while employed by the School Board does not

reflect credit upon Respondent and the school system.

Count II of the Notice of Specific Charges realleges the

above-cited allegations and alleges that Petitioner's Rule

6Gx13-4A-1.212(D) prohibits conflicting employment or

contractual relationships.

Count III (miscited as Count IV) of the Notice of Specific

Charges realleges the above-cited allegations and alleges that

Section 1012.32(l), Florida Statutes, requires good moral

character for continued employment. Count IV alleges that

Respondent demonstrated a lack of good moral character by

accepting funds directly from a vendor with whom the School

Board contracted and by viewing inappropriate material on a

School Board computer.

Count IV (the second Count IV) of the Notice of Specific

Charges realleges the above-cited allegations and alleges that

Respondent's "actions and admissions" are a violation of

Petitioner's Rule 6Gx13-4A-1.213 and Florida Administrative Code

Rules 6B-1.001 and 6B-1.006.

At the hearing, Petitioner called five witnesses and

offered into evidence 11 exhibits: Petitioner Exhibits 1-2, 5,

7, 9-14, and 20, which were all admitted. Respondent called one

witness and offered into evidence no exhibits.

The court reporter filed the Transcript on February 17,

2009. The parties filed their Proposed Recommended Orders by

March 2, 2009.

FINDINGS OF FACT

1. Respondent has worked for Petitioner under two

arrangements. At first, he worked part-time as Capital

Improvement Project Support Clerk and received his pay checks

from Petitioner. Respondent left this employment for military

service. When he returned from military service, he wanted to

return to employment with Petitioner, but was unable to do so

due to a hiring freeze.

2. However, Petitioner hired Respondent, arranging for a

vendor, Brown & Brown Architects, to pay Respondent, who oversaw

relocation crews that received and assembled new equipment. In

late 2003, when the hiring freeze ended, Petitioner hired

Respondent directly as a Capital Improvement Project Project

Specialist. While receiving pay checks from Brown & Brown

Architects and subsequently from Petitioner directly, Respondent

worked under the direct supervision of Willie Lopez, an employee

of Petitioner.

3. On July 1, 2005, Petitioner reassigned Respondent to

Office of Facilities Design & Standards Coordinator I. At this

time, Respondent began to work under the direct supervision of

William Barimo. Respondent was employed in this position until

his suspension without pay, as described below.

4. At some point, Mr. Lopez and Rose Diamond approached

first Respondent and then Mr. Barimo and asked if Respondent

could help Mr. Lopez clear backlogged work by working after

regular hours. They offered to pay Respondent at his regular

hourly rate. Respondent wanted the chance to earn additional

money, and Mr. Barimo consented to this arrangement. Mr. Barimo

considered Respondent to be an excellent employee who had always

demonstrated good moral character during the five years that

Respondent worked under Mr. Barimo's supervision.

5. At the time of agreeing to this arrangement, Mr. Barimo

told Respondent that he needed to complete his regular work for

Mr. Barimo before performing additional work for Mr. Lopez.

Mr. Barimo did not warn Respondent that he could not work for a

vendor of the School Board.

6. On March 12, 2007, Respondent began performing

additional work for Petitioner under the supervision of

Mr. Lopez. Mostly, Respondent worked at a single facility of

Petitioner, although he sometimes worked out of his home or at

other facilities of Petitioner.

7. Respondent did not receive a pay check for this

additional work until April 17, 2007. When Respondent received

the check, he noticed that it was from Morales Moving and

Storage. Only after he had begun asking about his compensation

did Respondent learn, not more than one week prior to receiving

the first check, that Petitioner would not be paying him.

However, Respondent did not consider himself an employee of

Morales Moving and Storage because he performed all of his

additional work under the supervision of Mr. Lopez, an employee

of Petitioner, and the work was for Petitioner.

8. Respondent performed additional work, under this

arrangement, from March 2007 to September 2007, earning over

$17,000. Respondent submitted his timesheets to a colleague of

Mr. Lopez, Ms. Ramos. She submitted the timesheets to Morales

Moving and Storage. Toward the end of this period, Mr. Lopez

died, and Ms. Ramos, assuming Mr. Lopez's responsibilities,

informed Respondent that she was having problem obtaining

payment for Respondent and other, similarly situated employees.

Shortly after that, Petitioner's investigators contacted

Respondent with respect to an investigation of the arrangement

with which Mr. Lopez had been involved.

9. Respondent had become involved in some sort of

fraudulent scheme in which Mr. Lopez, but not Ms. Diamond, was

involved. The details of the scheme are unclear, but nothing in

this record suggests that Respondent was a knowing participant

in the scheme. Other of Petitioner's employees were also caught

up in this scheme and also received payment from vendors while

performing Petitioner's work, but not all such employees were

terminated.

10. Several facts suggest that Respondent's involvement in

Mr. Lopez's scheme was entirely unwitting. Mr. Lopez and

Ms. Ramos approached Respondent's current supervisor, who

approved the arrangement. Working under his previous

supervisor, Mr. Lopez, Respondent was performing work of

Petitioner, mostly in facilities of Petitioner and at his normal

rate of pay with Petitioner. Lastly, Respondent had previously

been employed, legitimately, in an arrangement in which he had

done Petitioner's work, but had been paid by a vendor.

11. Under these circumstances, at no time was Respondent

employed or in a contractual relationship with Morales Moving

and Storage. At all times, Respondent performed work of

Petitioner, under the supervision of one of Petitioner's

employees, and, at no time, was Morales Moving and Storage

contractually obligated to pay Respondent for this work. The

contractual relationship, and thus the conflict, evidently

existed at the level of Mr. Lopez, not Respondent.

12. In the course of the investigation of Mr. Lopez's

scheme, Petitioner's investigators inspected the hard drive of

Respondent's work computer and found inappropriate sexual

content. The investigators determined that the images were

linked to Respondent's ID. Generally, the computer was in an

area that was accessible by others. Respondent typically signed

in at the start of his work shift, but often, while leaving the

computer in a signed-in condition, left the building to perform

work at remote school sites. Respondent denied downloading any

sexually inappropriate material and, given the circumstances, it

is impossible to find otherwise.

13. In August 1, 2008, Petitioner suspended Respondent

without pay. He has since been employed only for a short period

of time.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

Fla. Stat. (2008).

15. Petitioner's Rule 6Gx13-4A-1.21(I) states:

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 reflect credit upon themselves and

the school system.

* * *

16. Petitioner's Rule 6Gx13-4A-1.212(D) states:

D. Conflicting Employment or Contractual

Relationship

1. In addition to the restrictions on

outside employment that School Board Rule

6Gx13-4C-1.17, Employment--Nonschool, places

on employees, no School Board employee shall

hold any employment or contract with any

business entity or any agency that is doing

business with the School Board. . . .

2. In addition to the restrictions on

outside employment that School Board Rule

6Gx13-4C-1.17, Employment--Nonschool, places

on employees, no School Board

6Gx13-4A-1.212 employee shall have or hold

any employment or contractual relationship

that will create a continuing or frequently

recurring conflict between his or her

private interests and the performance of his

or her public duties, or that would impede

the full and faithful discharge of his or

her public duties. Section 112.313.(7)(a),

Florida Statute (2002).

17. Section 1012.32(1), Florida Statutes, requires "good

moral character" for eligibility for appointment in any position

in a school district.

18. Petitioner must prove the material allegations by a

preponderance of the evidence. Dileo v. School Board of Dade

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

19. Petitioner failed to prove that Respondent violated

any of the cited rules or statute as to the computer

pornography. As pleaded and in two extensive prehearing

conferences, Petitioner's theory of the computer case has been

that Respondent downloaded and viewed the sexually inappropriate

material found on his computer. At the start of the hearing,

Petitioner attempted to broaden this allegation to include a

charge that Respondent failed to maintain computer security, but

the Administrative Law Judge struck this new charge, for which

Respondent had not prepared. As for the charges consistently

advanced against Respondent--downloading and viewing

pornography--the evidence failed to link him to such material

found on his computer. As found above, Respondent frequently

left his computer in a signed-in condition where other persons

had free access to the computer and could have downloaded the

pornography.

20. Petitioner failed to prove that Respondent violated

any of the cited rules or statute as to the additional work that

he performed for Mr. Lopez. Although he obviously accepted pay

checks from Morales Moving and Storage, Respondent was never

employed by Morales Moving and Storage, nor was he ever in a

contractual relationship with this vendor. Never having reached

any sort of agreement with anyone from Morales Moving and

Storage, Respondent had no enforceable contractual rights

against this company, either as an employer or otherwise. It is

entirely reasonable that, to Respondent, the arrangement looked

like the one under which he legitimately had worked for

Petitioner while being paid by Brown & Brown Architects. On

this record, Respondent has not violated any rule against a

conflict of interest by way of employment or contractual

relationship.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing

the Notice of Specific Charges.

DONE AND ENTERED this 16th day of April, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 16th day of April, 2009.

COPIES FURNISHED:

Mr. Alberto M. Carvalho

Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Jean Marie Middleton, Esquire

School Board of Miami-Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Randy A. Fleischer, Esquire

Randy A. Fleischer, P.A.

8258 State Road 84

Davie, Florida 33324

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.