09-004304TTS Palm Beach County School Board vs. Jorge Gonzalez Status: Closed Recommended Order on Thursday, June 17, 2010.

Summary: Petitioner demonstrated by clear and convincing evidence that just cause exists to discipline Respondent, bypassing progressive discipline, by suspending him for 15 days without pay and terminating his employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-4304

)

JORGE GONZALEZ, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 16, 2010, by video teleconference with connecting sites

in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Corey M. Smith, Esquire

Palm Beach County School District

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be

suspended without pay and terminated from employment with

Petitioner.

PRELIMINARY STATEMENT

On August 13, 2009, the Palm Beach County School Board

(School Board) issued a Petition for Suspension without Pay and

Dismissal from Employment (Petition) against Jorge Gonzalez, a

non-instructional employee, for ethical misconduct, failure to

exercise best professional judgment, misuse of School Board

property, and conversion of School Board funds and/or property.

The Petition set forth allegations against Mr. Gonzalez and

asserted that just cause existed to suspend him for 15 days

without pay and terminate his employment pursuant to Sections

1012.22(1)(f), 1012.27(5), and 1012.40, Florida Statutes; School

Board Policies 1.013 and 3.27; and Article 17, Section 6 of the

Collective Bargaining Agreement between the Service Employees

International Union, Florida Public Services Union, and the

School Board. Mr. Gonzalez challenged the action and requested

a hearing. On August 14, 2009, this matter was referred to the

Division of Administrative Hearings.

At hearing, the School Board presented the testimony of

five witnesses and entered 23 exhibits (Petitioner's Exhibits

numbered 1 through 10, 13, 14, 16 through 21, and 23 through 27)

into evidence. Additionally, at the request of the School

Board, official recognition was taken of the plea agreement,

Judgment, and Order for Restitution in the case of the State of

Florida v. Jorge E. Gonzalez , Case No.2009CF005648AXX, Criminal

Division, Circuit Court, Fifteenth Judicial Circuit, Palm Beach

County, Florida. 1 Neither Mr. Gonzalez nor any representative on

his behalf appeared at the hearing. 2

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

the School Board, the time for filing post-hearing submissions

was set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on May 10, 2010. The School Board timely filed its post-hearing

submission, which has been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Mr. Gonzalez was a non-instructional employee with the

School Board at Liberty Park Elementary School (Liberty Park),

employed as a Paraprofessional II. Prior to that position, he

was employed as an Instructional Technologist Specialist at

Liberty Park.

2. Before working at Liberty Park, Mr. Gonzalez was

employed with the School Board at S.D. Spady Elementary School

(S.D. Spady) as an Instructional Technology Assistant for

approximately 90 days. He was responsible for the computer

hardware and software at S.D. Spady, including maintaining the

inventory and repairing the hardware and software.

3. During Mr. Gonzalez’s probationary period at S.D.

Spady, the principal gave him a computer to place in the

Exceptional Student Education (ESE) Department.

4. Before the end of his probationary period at S.D.

Spady, Mr. Gonzalez was released from his employment by the

principal. The principal was having continuous problems with

him; many times, Mr. Gonzalez was not coming to work or calling-

in to advise that he was not coming into work, and the principal

could not locate him.

5. After Mr. Gonzalez was released by the principal at

S.D. Spady, the principal discovered that the computer was never

delivered to the ESE Department. The computer was never seen at

S.D. Spady again.

6. Subsequently, Mr. Gonzalez was employed at Liberty

Park. During his tenure at Liberty Park, the principal

requested an investigation by the School Board’s School Police

Department (School Police) of Mr. Gonzalez regarding a parent’s

complaint against him. Allegedly, Mr. Gonzalez borrowed money

from a student and promised to repay the student more money than

he borrowed on his (Mr. Gonzalez’s) payday, but failed to do so.

The student told his mother, and the student’s mother reported

the incident to the principal. The investigation began in

February 2009.

7. During the investigation of the parent’s complaint,

Mr. Gonzalez became the subject of a separate investigation by

the School Police due to a background check of Mr. Gonzalez by

the investigator, using the PAWN system of the Palm Beach County

the Sheriff’s Office to track pawn transactions in local pawn

shops. The background check showed Mr. Gonzalez’s name

appearing 63 times in the PAWN system from June 2006 through

March 2009.

8. As to the separate investigation, the PAWN system

revealed that a computer on the list of items pawned by

Mr. Gonzalez matched the missing computer from S.D. Spady. The

manufacturer of the pawned computer confirmed that the service

code number on the pawned computer indicated that the pawned

computer was purchased by the School Board from the

manufacturer. The pawn ticket for the pawned computer,

maintained by the pawn shop, contained Mr. Gonzalez’s

identifying information, including his name, address, driver’s

license number, signature, and fingerprint, all of which were

required by the pawn shop.

9. The School Police arrested Mr. Gonzalez and charged him

with grand theft, dealing in stolen property, and false

verification of ownership of property. He was transferred to

the Sheriff’s Office.

10. Mr. Gonzalez’s fingerprints were taken when he was

arrested. The fingerprint on the pawn ticket, maintained by the

pawn shop, was confirmed by a latent print specialist at the

Sheriff’s Office as matching Mr. Gonzalez’s fingerprint taken at

the time of his arrest.

11. The School Board’s Superintendent decided to recommend

suspension without pay and termination of Mr. Gonzalez to the

School Board. The Superintendent notified Mr. Gonzalez of his

(the Superintendent’s) recommendation. Mr. Gonzalez notified

the School Board of his challenge to the recommendation and

requested a hearing.

12. On November 16, 2009, Mr. Gonzalez pled guilty to one

count of dealing in stolen property (stemming from the School

Police’s case), a second degree felony, in State of Florida v.

Jorge E. Gonzalez , Case No.2009CF005648AXX, Criminal Division,

Circuit Court, Fifteenth Judicial Circuit, Palm Beach County,

Florida. Among other things, the court withheld adjudication,

placed him on probation, and ordered restitution to the School

Board.

CONCLUSIONS OF LAW

13. 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 (2009).

14. Section 1012.40, Florida Statutes (2008), provides in

pertinent part:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Department of Education or district

school board pursuant to s. 1012.39. This

section does not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(b) "Employee" means any person employed as

an educational support employee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the district school

superintendent terminates the employee for

reasons stated in the collective bargaining

agreement, or in district school board rule

in cases where a collective bargaining

agreement does not exist, or reduces the

number of employees on a districtwide basis

for financial reasons.

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to formally

appeal the termination. The appeals process

shall be determined by the appropriate

collective bargaining process or by district

school board rule in the event there is no

collective bargaining agreement.

15. Mr. Gonzalez is an educational support employee and is

non-instructional.

16. The Collective Bargaining Agreement, effective

January 1, 2009 – December 31, 2011, between the Service

Employees International Union, Florida Public Services Union,

and the School Board (Agreement) at Article 17, titled

pertinent part:

1. Without the consent of the employee and

the Union, disciplinary action may not be

taken against an employee except for just

cause, and this must be substantiated by

clear and convincing evidence which supports

the recommended disciplinary action.

2. All disciplinary action shall be

governed by applicable statutes and

provisions of the Agreement. . . .

* * *

5. Only previous disciplinary actions which

are a part of the employee’s personnel file

or which are a matter of record as provided

in paragraph #7 below may be cited if these

previous actions are reasonably related to

the existing charge.

6. Where just cause warrants such

disciplinary action(s) and in keeping with

provisions of this Article, an employee may

be reprimanded verbally, reprimanded in

writing, suspended without pay, or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent and final

action taken by the District. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable School

Board rules and regulation, progressive

discipline shall be administered as follows:

(A) Verbal Reprimand With A Written

Notation. Such written notation shall be

placed in the employee’s personnel file and

shall not be used to the further detriment

of the employee, unless there is another

reasonably related act by that same employee

within a twenty-four (24) month period.

(B) Written Reprimand. A written reprimand

may be issued to an employee when

appropriate in keeping with provisions of

this Article. . . .

(C) Suspension Without Pay. A suspension

without pay by the School Board may be

issued to an employee, when appropriate, in

keeping with the provisions of this Article,

including just cause and applicable laws.

The length of the suspension also shall be

determined by just cause as set forth in

this Article. . . .

(D) An employee may be dismissed when

appropriate in keeping with the provisions

of this Article, including just cause and

applicable laws.

17. The School Board has the burden of proof to show by

clear and convincing evidence that Mr. Gonzalez should be

suspended for 15 days without pay and terminated. See

Agreement, Art. 17, § 1.

18. Upon the recommendation of the Superintendent and

final action taken by the School Board, an employee of the

School Board may be disciplined where just cause warrants. See

Agreement, Art. 17, § 6.

19. Section 1012.27, Florida Statutes (2008), provides in

pertinent part:

The district school superintendent is

responsible for directing the work of the

personnel, subject to the requirements of

this chapter, and in addition the district

school superintendent shall perform the

following:

* * *

(5) Suspension and dismissal. --Suspend

members of the instructional staff and other

school employees during emergencies for a

period extending to and including the day of

the next regular or special meeting of the

district school board and notify the

district school board immediately of such

suspension. When authorized to do so, serve

notice on the suspended member of the

instructional staff of charges made against

him or her and of the date of hearing.

Recommend employees for dismissal under the

terms prescribed herein.

The evidence fails to demonstrate that an emergency existed for

the Superintendent to suspend or dismiss Mr. Gonzalez without

the School Board’s approval and afterwards notify the School

Board of the suspension or dismissal. The evidence demonstrates

that the Superintendent recommended to the School Board the

suspension of 15 days without pay and dismissal to the School

Board. Consequently, Section 1012.27(5), Florida Statutes

(2008), is not applicable to the instant case.

20. Section 1012.22, Florida Statutes (2008), provides in

pertinent part:

The district 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 chapter:

* * *

(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.

The School Board has the authority to suspend or dismiss

Mr. Gonzalez. See Agreement, Art. 17, § 6; §§ 1012.22(1)(f) and

1012.40(2)(c), Fla. Stat. (2008).

21. The evidence demonstrates clearly and convincingly

that Mr. Gonzalez stole the computer from S.D. Spady and pawned

it. Furthermore, the evidence demonstrates clearly and

convincingly that he pled guilty in criminal court to dealing in

stolen property, a second degree felony, and was ordered by the

court, among other things, to pay restitution to the School

Board for the computer.

22. Hence, the evidence demonstrates clearly and

convincingly that the School Board established just cause to

take disciplinary action against Mr. Gonzalez.

23. School Board Policy 1.013, titled “Responsibilities of

School District Personnel and Staff,” provides in pertinent

part:

1. It shall be the responsibility of the

personnel employed by the district school

board to carry out their assigned duties in

accordance with federal laws, rules, state

statutes, state board of education rules,

school board policy, superintendent’s

administrative directives and local school

and area rules.

School Board Policy 1.013 is a reasonable policy.

24. School Board Policy 3.27, titled “Suspension and

Dismissal of Employees,” provides in pertinent part:

1. The purpose of this section is to

promulgate rules regarding the suspension

and dismissal of employees. These rules

shall be read in conjunction with the

procedures established for administrative

hearings . . . .

2. Upon a finding of probable cause by the

Superintendent sufficient to warrant a

recommendation to the School Board for

suspension without pay and dismissal, the

Superintendent shall communicate in writing

to the employee . . . .

3. All employees recommended for suspension

without pay and dismissal shall have the

right to request a hearing provided such a

request is made in writing . . . within 15

days of the receipt of the Superintendent’s

written notice.

* * *

5. In the event a request for a hearing is

timely made . . . by a noninstructional

employee . . . the procedure for conducting

a hearing, unless otherwise determined by

the School Board, is as follows:

a. The Superintendent will file a petition

for dismissal with the Division of

Administrative Hearings (DOAH). . . .

* * *

c. The hearing shall be conducted in

accordance with Chapter 120, Florida

Statutes.

25. The evidence demonstrates clearly and convincingly

that Mr. Gonzalez violated School Board Policy 1.013. At S.D.

Spady, he was responsible for the computer hardware and

software, including maintaining the inventory and repairing the

hardware and software. The principal at S.D. Spady gave

Mr. Gonzalez a computer to place in the ESE Department; instead,

he intentionally disregarded his responsibility and pawned the

computer.

26. Hence, the evidence demonstrates clearly and

convincingly that Mr. Gonzalez’s conduct constituted a “clearly

flagrant and purposeful” violation of School Board Policy 1.013,

which is a reasonable policy.

27. As a result, progressive discipline need not be

followed. See Agreement, Art. 17, § 7.

28. Hence, the evidence demonstrates clearly and

convincingly that Mr. Gonzalez should be suspended for 15 days

without pay and terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Palm Beach County School Board enter a

final order suspending Jorge Gonzalez for 15 days without pay

and terminating his employment.

DONE AND ENTERED this 17th day of June, 2010, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

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 17th day of June, 2010.

ENDNOTES

1/ The School Board submitted certified copies of the documents.

2/ The hearing was delayed approximately 30 minutes to provide

additional time for the appearance of Mr. Gonzalez or any

representative on his behalf.

COPIES FURNISHED:

Corey M. Smith, Esquire

Palm Beach County School District

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Jorge Gonzalez

123 Newberry Lane

Royal Palm Beach, Florida 33414

Dr. Eric J. Smith, Commissioner

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

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

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.