09-000497TTS Miami-Dade County School Board vs. Steve E. Montgomery Status: Closed Recommended Order on Friday, February 26, 2010.

Summary: Petitioner failed to prove Count I, but demonstrated that Respondent violated Rule 6Gx13-4A-1.213 as charged in the Second Notice of Specific Charges and the School Board should uphold Respondent's suspension without pay and terminate his employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0497

)

STEVE E. MONTGOMERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

August 24, 2009, in Miami, Florida, before Administrative Law

Judge June C. McKinney of the Division of Administrative

Hearings, pursuant to the authority set forth in Sections

120.569 and 120.57(1), Florida Statutes. 1

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire 2

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Randy Fleischer, Esquire 3

8258 State Road 84

Davie, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Steve E.

Montgomery, committed the violations alleged in the Second

Amended Notice of Specific Charges and, if so, what disciplinary

action should be taken against him.

PRELIMINARY STATEMENT

On January 14, 2009, Petitioner, Miami-Dade County Public

School Board ("School Board" or "Petitioner") suspended

Respondent, Steve E. Montgomery ("Montgomery" or "Respondent"),

without pay and initiated termination proceedings for Montgomery

who failed to maintain a valid Florida driver's license and

Certificate of Competency as a Licensed Journeyperson

("Certificate of Competency"). Respondent elected to dispute

the reasons for his dismissal stemming from allegations that he

failed to maintain his qualifying documents in violation of

School Board Rules. Because Montgomery requested a formal

proceeding, the matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner presented the testimony of five

witnesses: Abby Walker, Director Employee Resources,

Facilitates Operations and Maintenance; Steve Montgomery;

Ignacio Palacio, Director, Facilities Operations and

Maintenance; and Robert Brown, Administrative Director, Office

of Professional Standards. Petitioner's Exhibits numbered 1

through 24 and 26 were admitted into evidence. Respondent

testified on his own behalf and presented the testimony of

Robert Kuse, Electrician II, and Benjamin Fullington, Jr.,

Plumber II, Journeyman. Respondent's Exhibits numbered 1

through 8 were admitted into evidence.

The proceedings were transcribed and the parties availed

themselves of the right to submit proposed recommended orders

after the filing of the transcript. A two-volume Transcript of

the final hearing was filed with the Division of Administrative

Hearings on October 19, 2009. Upon granting several extensions

to the proposed recommended order filing time, both Petitioner

and Respondent filed timely Proposed Recommended Orders on

January 4, 2010, which have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Steve Montgomery has been employed with the School

Board since May 13, 1988. He last held the position of a

Plumber II Journeyman in Miami-Dade County Florida.

2. Montgomery's job description and the maintenance

employee's handbook mandated that he maintain a valid driver's

license and Certificate of Competency in order to remain

employed by the School Board. During the hearing, Montgomery

admitted that he was aware that he had to maintain such minimum

qualifications for his job.

3. Montgomery started a pattern in 2003 of his driver's

license getting suspended and then being reinstated again.

Montgomery admitted during hearing that his driver's license had

been suspended at least four times. Each time, the School Board

notified Montgomery that his license was not valid and provided

him five working days to get a valid license. Montgomery was

placed in an alternative work assignment whenever he did not

have the valid credentials. The School Board kept a record of

the occurrences in Montgomery's personnel file.

4. The file contained a December 15, 2003, memorandum

entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY

JOB DESCRIPTION" directing Montgomery that his license was

suspended and/or revoked and detailing that his job description

requires that he maintain a valid State of Florida Class D

license as one of the minimum qualifications of the position.

The memorandum also stated that Montgomery had five days until

December 22, 2003, to present evidence of a valid license.

5. A May 24, 2004, memorandum almost identical to the one

dated December 15, 2003, except for the deadline dates, was also

in Montgomery's personnel file. The memorandum provided a

deadline of June 1, 2004, to present evidence of a valid driver's

license and indicated that, if there was a failure to satisfy the

requirement in the allotted time period, a Conference-for-the

Record ("CFR") would be scheduled to discuss the matter further.

6. A July 26, 2005, memo identical to the two previous

memorandums except for the dates was also in Montgomery's

personnel file. The memorandum gave a deadline of August 2,

2005, to present evidence of a valid driver's license.

7. Mr. Palacio personally gave the invalid driver's license

memorandums to Respondent and verbally notified Montgomery of the

requirement to get a valid license.

8. Montgomery signed the memorandum dated September 15,

2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED

BY JOB DESCRIPTION." As in the previous memos, it stated:

Attached please find a report dated

September 15, 2005 that indicates your

driver's license has been suspended and/or

revoked. Your official job description

requires you to maintain a valid State of

Florida CDL Class D* driver's license as one

of the minimum qualifications of this

position. (Effective July 1, 2005, Class D

licenses were converted to Class E.)

You are advised that this requirement is a

condition of your continued employment with

Miami-Dade County Public Schools. Without a

valid driver's license you are no longer

qualified to perform the requirements of your

position with the District. Effective

immediately, you are being placed on an

alternate work assignment.

Accordingly, you are directed to present

evidence of this required license to your

Satellite Director or designee within five

(5) working days from the date of this

memorandum, which will be September 23, 2005.

Until such time, you are not authorized to

operate any District vehicle or motorized

equipment that requires possession of a

driver's license.

If you fail to satisfy this requirement

within the allotted time period, a

Conference-for-the-Record will be scheduled

to address this matter further. Please

review your Maintenance Operations handbook

(Trades Chapter, Page 4) for further details.

9. A CFR was held with Montgomery on September 30, 2005,

because he did not obtain a valid driver's license by

September 23, 2005. Montgomery was provided a copy of the job

description for plumber II and the September 15, 2005,

memorandum. At the CFR, Montgomery was again informed that

maintaining his valid driver's license is a minimum qualification

of his position and that "Without a valid driver's license, you

are no longer qualified to perform the requirements of your

position with the District." Montgomery signed the summary of

the CFR on October 3, 2005.

10. On October 13, 2005, the School Board notified

Montgomery by memorandum that he had failed to maintain his

Certificate of Competency and it had expired on August 31, 2005.

Montgomery signed the memorandum and was instructed to present a

valid certificate no later than October 17, 2005, at 8:00 a.m.

Montgomery was aware that it was his responsibility to know when

his qualifying documents expired and keep them valid as a minimum

requirement for his job.

11. A CFR was held on February 11, 2006, regarding

Montgomery not possessing a renewed Certificate of Competency and

a valid driver's license. At the CFR, Montgomery produced a

renewed certificate but did still did not have a valid license.

12. On May 4, 2006, Montgomery still did not have a valid

driver's license and Mr. Palacio recommended Montgomery's

termination. In Palacio's memorandum, the grounds for such

discipline were as follows:

Mr. Montgomery is in violation of School

Board Rule 6Gx13- 4A-1.21 , Responsibilities

and Duties, 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.

13. On May 9, 2006, Mr. Brown and the maintenance officer

signed a memo entitled Recommendation for Termination Mr. Steve

E. Montgomery Employee # 169252 Plumber II, Region Maintenance

Center II providing grounds for disciplinary measures inasmuch

as Montgomery was unable to produce a valid Florida's driver's

license, a condition of employment. The memo stated:

As a Plumber II, Mr. Montgomery must

maintain all certifications, licenses and

job requirements. Failure to comply with

minimum job requirements warrants dismissal.

14. Montgomery let the Certificate of Competency expire

again on August 31, 2007.

15. Subsequently, on September 17, 2008, another CFR was

held with Montgomery notifying him of the recommendation for

suspension and termination because Montgomery's license and

Certificate of Competency were not valid. During the CFR,

Montgomery did not offer any explanation as to why his license

was still suspended or submit proof of his Certificate of

Competency but only commented he "will have [both] soon." 4

Montgomery also did not complain about any working conditions

during the CFR.

16. At a regularly scheduled meeting on January 14, 2009,

the School Board suspended Montgomery without pay and initiated

dismissal proceedings against him from all employment with

Miami-Dade County Public Schools for just cause, including, but

not limited to: violation of School Board Rules 6Gx13- 4A-1.21

Responsibilities and Duties, 6Gx13- 4A-1.213 Code of Ethics, and

Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209,

Florida Statutes.

17. Montgomery's license was suspended at the time of his

suspension and termination. Likewise, Montgomery's Certificate

of Competency had still not been renewed at the time of his

suspension and termination.

18. No other School Board employee had his/her license

suspended as many times as Montgomery with an expired

Certificate of Competency at the same time. Further, the School

Board has disciplined employees by termination for having a

suspended driver's license.

19. Montgomery had a valid Florida driver's license and a

renewed valid Certificate of Competency at the hearing.

20. On August 20, 2009, the School Board filed its Second

Amended Notice of Specific Charges charging Respondent with

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

Duties, School Board Rule 6Gx13- 4A-1.213 , Code of Ethics, and

State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a

valid driver's license and Certificate of Competency.

CONCLUSIONS OF LAW

21. 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.

22. Petitioner's burden to prove the charges against

Respondent and that he was rightfully suspended and terminated

must be made by a preponderance of the evidence. Allen v.

School Board of Dade County , 571 So. 2d 568 (Fla. 3d DCA 1990);

Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 3d

DCA 1990).

23. The Second Amended Notice of Charges filed against

Respondent alleges the following:

Montgomery's failure to maintain a valid

driver[']s license and Certificate of

Competency does not reflect credit upon

himself or the community and violates School

Board Rule 6Gx13- 4A-1.21 .

* * *

Montgomery's driver[']s license has been

suspended approximately 6 times. His

actions demonstrate his failure to obey

local, state and national laws, codes and

regulations. Furthermore, his actions

demonstrate that he has failed to take

responsibility and be accountable for his or

her actions. His failure to maintain his

Certificate of Competency demonstrates a

lack of efficient and effective delivery of

his job duties. The totality of

Montgomery's actions constitutes a violation

of the School Board Rule 6Gx13- 4A-1.213 .

24. Based upon these allegations, Respondent is charged

with the following two counts: violation of School Board Rule

6Gx13- 4A-1.21 , Responsibilities and Duties and 6Gx13- 4A-1.213 ,

Code of Ethics.

I. Responsibilities and Duties

25. At all times material to the instant case, School

Board Rule 6Gx13- 4A-1.21 has provided as follows:

RESPONSIBILITIES AND DUTIES

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 reflect credit upon themselves and

the school system. Unseemly conduct or the

use of abusive and/or profane language in

the workplace is expressly prohibited.

* * *

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.

A 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.

26. This is a de novo proceeding for the purpose of

formulating agency action, and not to determine whether the

School Board's decision was correct at the time that it made the

decision. The findings of fact "shall be based exclusively on

the evidence of record and on matters officially recognized."

§ 120.57(1)(j) and (k), Fla. Stat.

27. Petitioner has failed to sustain the charges against

Respondent in this case for Count I. The record demonstrates

that Montgomery had a valid driver's license and Certificate of

Competency at the hearing.

II. Code of Ethics

28. At all times material to the instant case, School

Board Rule 6Gx13- 4A-1.213 has provided in relevant part:

CODE OF ETHICS

* * *

I. Employee Conduct

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.

2. To obey local, state and national

laws, codes and regulations.

* * *

5. To take responsibility and be

accountable for his or her actions.

* * *

7. To cooperate with others to protect

and advance the District and its students.

8. To be efficient and effective in the

delivery of job duties.

29. The evidence, taken as a whole, demonstrated that over

the years Montgomery engaged in the repetitious conduct of not

having a valid driver's license and Certificate of Competency,

in violation of School Board regulations, even though he knew

that each was a minimum requirement for his job and was told

repeatedly to maintain them. Even if Montgomery was placed on

alternative assignments while getting his qualifications in

order, Montgomery's performance of duties was interrupted time

and time again. The record demonstrates that the last period

Montgomery was without a license was approximately 120 days

starting from the CFR date of September 17, 2008, to the

termination date of January 14, 2009. Thus, Montgomery's

pattern of irresponsible behavior made him ineffective in the

delivery of his job because he was unable to perform the duties

of the job description, thereby violating the Code of Ethics.

30. Montgomery asserted that his termination was based on

racial discrimination from some allegations of harassment around

February 2006 and February 2007. The undersigned finds that

Montgomery's discrimination defense must fail because no

credible evidence was presented of disparate treatment to make a

prima facie case. 5

31. Moreover, even if discrimination had taken place, the

alleged incidents would have taken place too remote in proximity

to be a motivating factor for the termination of January 14,

2009. 6 Additionally, the School Board provided a legitimate non-

discriminatory reason for recommending termination of

Montgomery's employment in that Montgomery repeatedly failed to

maintain his required driver's license and Certificate of

Competency throughout his employment.

32. Thus, as found above, the Petitioner has met its

burden and demonstrated that Montgomery engaged in violation of

the Code of Ethics School Board Rule 6Gx13- 4A-1.213 by failing

to maintain his requirements of employment and such a pattern of

behavior warrants discipline.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that Petitioner, Miami-Dade County School

Board, enter a final order that: (a) dismisses Count I; (b)

finds Respondent in violation of Count II as charged; and (c)

upholds Respondent's suspension without pay and termination.

DONE AND ENTERED this 26th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 26th day of February, 2010.

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

2 / Attorney Middleton represented the School Board at hearing.

Attorney Janeen Richard submitted the Proposed Recommended

Order.

3 / On October 27, 2009, Respondent's counsel filed a Motion to

Withdraw from this case, which the undersigned granted. David

Nevel, Esquire, entered a Notice of Appearance on Respondent's

behalf on November 5, 2009.

4 / Montgomery asserted at hearing that he faced challenges

getting his driver's license back with the steep fines and

community service. He further stated he didn't know where some

tickets came from because he didn't go in the areas where the

tickets were issued. However, such testimony is not deemed

credible because he never informed the School Board of such

problems.

5 / The undersigned accepts the School Board's position is

credible in that no other employee ever had both repeated

driver's license suspensions combined with a certificate of

competency expirations at the same time for which to compare

Montgomery actions. Additionally, Montgomery's proposition that

Clive Nelson was an example is rejected because he only had a

license suspension and he was African-American, a member of the

same race of Respondent. Thus, Respondent also failed to

present evidence that he was treated less favorably than a

similarly situated employee who was not a member of a minority

class.

6 / Montgomery's failure to complain about any working conditions

during the CFR further supports the undersigned's rejection of

such allegations.

COPIES FURNISHED :

David H. Nevel, Esquire

David H. Nevel, P.A.

950 South Pine Island Road, Suite A-150

Davie, Florida 33324

Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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.