09-004304TTS
Palm Beach County School Board vs.
Jorge Gonzalez
Status: Closed
Recommended Order on Thursday, June 17, 2010.
Recommended Order on Thursday, June 17, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PALM BEACH COUNTY SCHOOL BOARD, )
14)
15Petitioner, )
17)
18vs. ) Case No. 09-4304
23)
24JORGE GONZALEZ, )
27)
28Respondent. )
30________________________________)
31RECOMMENDED ORDER
33Pursuant to notice, a final hearing was held in this case
44on April 16, 2010, by video teleconference with connecting sites
54in West Palm Beach and Tallahassee, Florida, before
62Errol H. Powell, an Administrative Law Judge of the Division of
73Administrative Hearings.
75APPEARANCES
76For Petitioner: Corey M. Smith, Esquire
82Palm Beach County School District
87Post Office Box 19239
91West Palm Beach, Florida 33416-9239
96For Respondent: No Appearance
100STATEMENT OF THE ISSUE
104The issue for determination is whether Respondent should be
113suspended without pay and terminated from employment with
121Petitioner.
122PRELIMINARY STATEMENT
124On August 13, 2009, the Palm Beach County School Board
134(School Board) issued a Petition for Suspension without Pay and
144Dismissal from Employment (Petition) against Jorge Gonzalez, a
152non-instructional employee, for ethical misconduct, failure to
159exercise best professional judgment, misuse of School Board
167property, and conversion of School Board funds and/or property.
176The Petition set forth allegations against Mr. Gonzalez and
185asserted that just cause existed to suspend him for 15 days
196without pay and terminate his employment pursuant to Sections
2051012.22(1)(f), 1012.27(5), and 1012.40, Florida Statutes; School
212Board Policies 1.013 and 3.27; and Article 17, Section 6 of the
224Collective Bargaining Agreement between the Service Employees
231International Union, Florida Public Services Union, and the
239School Board. Mr. Gonzalez challenged the action and requested
248a hearing. On August 14, 2009, this matter was referred to the
260Division of Administrative Hearings.
264At hearing, the School Board presented the testimony of
273five witnesses and entered 23 exhibits (Petitioner's Exhibits
281numbered 1 through 10, 13, 14, 16 through 21, and 23 through 27)
294into evidence. Additionally, at the request of the School
303Board, official recognition was taken of the plea agreement,
312Judgment, and Order for Restitution in the case of the State of
324Florida v. Jorge E. Gonzalez , Case No.2009CF005648AXX, Criminal
332Division, Circuit Court, Fifteenth Judicial Circuit, Palm Beach
340County, Florida. 1 Neither Mr. Gonzalez nor any representative on
350his behalf appeared at the hearing. 2
357A transcript of the hearing was ordered. At the request of
368the School Board, the time for filing post-hearing submissions
377was set for more than ten days following the filing of the
389transcript. The Transcript, consisting of one volume, was filed
398on May 10, 2010. The School Board timely filed its post-hearing
409submission, which has been considered in the preparation of this
419Recommended Order.
421FINDINGS OF FACT
4241. Mr. Gonzalez was a non-instructional employee with the
433School Board at Liberty Park Elementary School (Liberty Park),
442employed as a Paraprofessional II. Prior to that position, he
452was employed as an Instructional Technologist Specialist at
460Liberty Park.
4622. Before working at Liberty Park, Mr. Gonzalez was
471employed with the School Board at S.D. Spady Elementary School
481(S.D. Spady) as an Instructional Technology Assistant for
489approximately 90 days. He was responsible for the computer
498hardware and software at S.D. Spady, including maintaining the
507inventory and repairing the hardware and software.
5143. During Mr. Gonzalezs probationary period at S.D.
522Spady, the principal gave him a computer to place in the
533Exceptional Student Education (ESE) Department.
5384. Before the end of his probationary period at S.D.
548Spady, Mr. Gonzalez was released from his employment by the
558principal. The principal was having continuous problems with
566him; many times, Mr. Gonzalez was not coming to work or calling-
578in to advise that he was not coming into work, and the principal
591could not locate him.
5955. After Mr. Gonzalez was released by the principal at
605S.D. Spady, the principal discovered that the computer was never
615delivered to the ESE Department. The computer was never seen at
626S.D. Spady again.
6296. Subsequently, Mr. Gonzalez was employed at Liberty
637Park. During his tenure at Liberty Park, the principal
646requested an investigation by the School Boards School Police
655Department (School Police) of Mr. Gonzalez regarding a parents
664complaint against him. Allegedly, Mr. Gonzalez borrowed money
672from a student and promised to repay the student more money than
684he borrowed on his (Mr. Gonzalezs) payday, but failed to do so.
696The student told his mother, and the students mother reported
706the incident to the principal. The investigation began in
715February 2009.
7177. During the investigation of the parents complaint,
725Mr. Gonzalez became the subject of a separate investigation by
735the School Police due to a background check of Mr. Gonzalez by
747the investigator, using the PAWN system of the Palm Beach County
758the Sheriffs Office to track pawn transactions in local pawn
768shops. The background check showed Mr. Gonzalezs name
776appearing 63 times in the PAWN system from June 2006 through
787March 2009.
7898. As to the separate investigation, the PAWN system
798revealed that a computer on the list of items pawned by
809Mr. Gonzalez matched the missing computer from S.D. Spady. The
819manufacturer of the pawned computer confirmed that the service
828code number on the pawned computer indicated that the pawned
838computer was purchased by the School Board from the
847manufacturer. The pawn ticket for the pawned computer,
855maintained by the pawn shop, contained Mr. Gonzalezs
863identifying information, including his name, address, drivers
870license number, signature, and fingerprint, all of which were
879required by the pawn shop.
8849. The School Police arrested Mr. Gonzalez and charged him
894with grand theft, dealing in stolen property, and false
903verification of ownership of property. He was transferred to
912the Sheriffs Office.
91510. Mr. Gonzalezs fingerprints were taken when he was
924arrested. The fingerprint on the pawn ticket, maintained by the
934pawn shop, was confirmed by a latent print specialist at the
945Sheriffs Office as matching Mr. Gonzalezs fingerprint taken at
954the time of his arrest.
95911. The School Boards Superintendent decided to recommend
967suspension without pay and termination of Mr. Gonzalez to the
977School Board. The Superintendent notified Mr. Gonzalez of his
986(the Superintendents) recommendation. Mr. Gonzalez notified
992the School Board of his challenge to the recommendation and
1002requested a hearing.
100512. On November 16, 2009, Mr. Gonzalez pled guilty to one
1016count of dealing in stolen property (stemming from the School
1026Polices case), a second degree felony, in State of Florida v.
1037Jorge E. Gonzalez , Case No.2009CF005648AXX, Criminal Division,
1044Circuit Court, Fifteenth Judicial Circuit, Palm Beach County,
1052Florida. Among other things, the court withheld adjudication,
1060placed him on probation, and ordered restitution to the School
1070Board.
1071CONCLUSIONS OF LAW
107413. The Division of Administrative Hearings has
1081jurisdiction over the subject matter of this proceeding and the
1091parties thereto pursuant to Sections 120.569 and 120.57(1),
1099Florida Statutes (2009).
110214. Section 1012.40, Florida Statutes (2008), provides in
1110pertinent part:
1112(1) As used in this section:
1118(a) "Educational support employee" means
1123any person employed by a district school
1130system who is employed as a teacher
1137assistant, an education paraprofessional, a
1142member of the transportation department, a
1148member of the operations department, a
1154member of the maintenance department, a
1160member of food service, a secretary, or a
1168clerical employee, or any other person who
1175by virtue of his or her position of
1183employment is not required to be certified
1190by the Department of Education or district
1197school board pursuant to s. 1012.39. This
1204section does not apply to persons employed
1211in confidential or management positions.
1216This section applies to all employees who
1223are not temporary or casual and whose duties
1231require 20 or more hours in each normal
1239working week.
1241(b) "Employee" means any person employed as
1248an educational support employee.
1252(2)(a) Each educational support employee
1257shall be employed on probationary status for
1264a period to be determined through the
1271appropriate collective bargaining agreement
1275or by district school board rule in cases
1283where a collective bargaining agreement does
1289not exist.
1291(b) Upon successful completion of the
1297probationary period by the employee, the
1303employee's status shall continue from year
1309to year unless the district school
1315superintendent terminates the employee for
1320reasons stated in the collective bargaining
1326agreement, or in district school board rule
1333in cases where a collective bargaining
1339agreement does not exist, or reduces the
1346number of employees on a districtwide basis
1353for financial reasons.
1356(c) In the event a district school
1363superintendent seeks termination of an
1368employee, the district school board may
1374suspend the employee with or without pay.
1381The employee shall receive written notice
1387and shall have the opportunity to formally
1394appeal the termination. The appeals process
1400shall be determined by the appropriate
1406collective bargaining process or by district
1412school board rule in the event there is no
1421collective bargaining agreement.
142415. Mr. Gonzalez is an educational support employee and is
1434non-instructional.
143516. The Collective Bargaining Agreement, effective
1441January 1, 2009 December 31, 2011, between the Service
1451Employees International Union, Florida Public Services Union,
1458and the School Board (Agreement) at Article 17, titled
1467pertinent part:
14691. Without the consent of the employee and
1477the Union, disciplinary action may not be
1484taken against an employee except for just
1491cause, and this must be substantiated by
1498clear and convincing evidence which supports
1504the recommended disciplinary action.
15082. All disciplinary action shall be
1514governed by applicable statutes and
1519provisions of the Agreement. . . .
1526* * *
15295. Only previous disciplinary actions which
1535are a part of the employees personnel file
1543or which are a matter of record as provided
1552in paragraph #7 below may be cited if these
1561previous actions are reasonably related to
1567the existing charge.
15706. Where just cause warrants such
1576disciplinary action(s) and in keeping with
1582provisions of this Article, an employee may
1589be reprimanded verbally, reprimanded in
1594writing, suspended without pay, or dismissed
1600upon the recommendation of the immediate
1606supervisor to the Superintendent and final
1612action taken by the District. Other
1618disciplinary action(s) may be taken with the
1625mutual agreement of the parties.
16307. Except in cases which clearly constitute
1637a real and immediate danger to the District
1645or the actions/inactions of the employee
1651constitute such clearly flagrant and
1656purposeful violations of reasonable School
1661Board rules and regulation, progressive
1666discipline shall be administered as follows:
1672(A) Verbal Reprimand With A Written
1678Notation. Such written notation shall be
1684placed in the employees personnel file and
1691shall not be used to the further detriment
1699of the employee, unless there is another
1706reasonably related act by that same employee
1713within a twenty-four (24) month period.
1719(B) Written Reprimand. A written reprimand
1725may be issued to an employee when
1732appropriate in keeping with provisions of
1738this Article. . . .
1743(C) Suspension Without Pay. A suspension
1749without pay by the School Board may be
1757issued to an employee, when appropriate, in
1764keeping with the provisions of this Article,
1771including just cause and applicable laws.
1777The length of the suspension also shall be
1785determined by just cause as set forth in
1793this Article. . . .
1798(D) An employee may be dismissed when
1805appropriate in keeping with the provisions
1811of this Article, including just cause and
1818applicable laws.
182017. The School Board has the burden of proof to show by
1832clear and convincing evidence that Mr. Gonzalez should be
1841suspended for 15 days without pay and terminated. See
1850Agreement, Art. 17, § 1.
185518. Upon the recommendation of the Superintendent and
1863final action taken by the School Board, an employee of the
1874School Board may be disciplined where just cause warrants. See
1884Agreement, Art. 17, § 6.
188919. Section 1012.27, Florida Statutes (2008), provides in
1897pertinent part:
1899The district school superintendent is
1904responsible for directing the work of the
1911personnel, subject to the requirements of
1917this chapter, and in addition the district
1924school superintendent shall perform the
1929following:
1930* * *
1933(5) Suspension and dismissal. --Suspend
1938members of the instructional staff and other
1945school employees during emergencies for a
1951period extending to and including the day of
1959the next regular or special meeting of the
1967district school board and notify the
1973district school board immediately of such
1979suspension. When authorized to do so, serve
1986notice on the suspended member of the
1993instructional staff of charges made against
1999him or her and of the date of hearing.
2008Recommend employees for dismissal under the
2014terms prescribed herein.
2017The evidence fails to demonstrate that an emergency existed for
2027the Superintendent to suspend or dismiss Mr. Gonzalez without
2036the School Boards approval and afterwards notify the School
2045Board of the suspension or dismissal. The evidence demonstrates
2054that the Superintendent recommended to the School Board the
2063suspension of 15 days without pay and dismissal to the School
2074Board. Consequently, Section 1012.27(5), Florida Statutes
2080(2008), is not applicable to the instant case.
208820. Section 1012.22, Florida Statutes (2008), provides in
2096pertinent part:
2098The district school board shall:
2103(1) Designate positions to be filled,
2109prescribe qualifications for those
2113positions, and provide for the appointment,
2119compensation, promotion, suspension, and
2123dismissal of employees as follows, subject
2129to the requirements of this chapter:
2135* * *
2138(f) Suspension, dismissal, and return to
2144annual contract status. --The district
2149school board shall suspend, dismiss, or
2155return to annual contract members of the
2162instructional staff and other school
2167employees; however, no administrative
2171assistant, supervisor, principal, teacher,
2175or other member of the instructional staff
2182may be discharged, removed, or returned to
2189annual contract except as provided in this
2196chapter.
2197The School Board has the authority to suspend or dismiss
2207Mr. Gonzalez. See Agreement, Art. 17, § 6; §§ 1012.22(1)(f) and
22181012.40(2)(c), Fla. Stat. (2008).
222221. The evidence demonstrates clearly and convincingly
2229that Mr. Gonzalez stole the computer from S.D. Spady and pawned
2240it. Furthermore, the evidence demonstrates clearly and
2247convincingly that he pled guilty in criminal court to dealing in
2258stolen property, a second degree felony, and was ordered by the
2269court, among other things, to pay restitution to the School
2279Board for the computer.
228322. Hence, the evidence demonstrates clearly and
2290convincingly that the School Board established just cause to
2299take disciplinary action against Mr. Gonzalez.
230523. School Board Policy 1.013, titled Responsibilities of
2313School District Personnel and Staff, provides in pertinent
2322part:
23231. It shall be the responsibility of the
2331personnel employed by the district school
2337board to carry out their assigned duties in
2345accordance with federal laws, rules, state
2351statutes, state board of education rules,
2357school board policy, superintendents
2361administrative directives and local school
2366and area rules.
2369School Board Policy 1.013 is a reasonable policy.
237724. School Board Policy 3.27, titled Suspension and
2385Dismissal of Employees, provides in pertinent part:
23931. The purpose of this section is to
2401promulgate rules regarding the suspension
2406and dismissal of employees. These rules
2412shall be read in conjunction with the
2419procedures established for administrative
2423hearings . . . .
24282. Upon a finding of probable cause by the
2437Superintendent sufficient to warrant a
2442recommendation to the School Board for
2448suspension without pay and dismissal, the
2454Superintendent shall communicate in writing
2459to the employee . . . .
24663. All employees recommended for suspension
2472without pay and dismissal shall have the
2479right to request a hearing provided such a
2487request is made in writing . . . within 15
2497days of the receipt of the Superintendents
2504written notice.
2506* * *
25095. In the event a request for a hearing is
2519timely made . . . by a noninstructional
2527employee . . . the procedure for conducting
2535a hearing, unless otherwise determined by
2541the School Board, is as follows:
2547a. The Superintendent will file a petition
2554for dismissal with the Division of
2560Administrative Hearings (DOAH). . . .
2566* * *
2569c. The hearing shall be conducted in
2576accordance with Chapter 120, Florida
2581Statutes.
258225. The evidence demonstrates clearly and convincingly
2589that Mr. Gonzalez violated School Board Policy 1.013. At S.D.
2599Spady, he was responsible for the computer hardware and
2608software, including maintaining the inventory and repairing the
2616hardware and software. The principal at S.D. Spady gave
2625Mr. Gonzalez a computer to place in the ESE Department; instead,
2636he intentionally disregarded his responsibility and pawned the
2644computer.
264526. Hence, the evidence demonstrates clearly and
2652convincingly that Mr. Gonzalezs conduct constituted a clearly
2660flagrant and purposeful violation of School Board Policy 1.013,
2669which is a reasonable policy.
267427. As a result, progressive discipline need not be
2683followed. See Agreement, Art. 17, § 7.
269028. Hence, the evidence demonstrates clearly and
2697convincingly that Mr. Gonzalez should be suspended for 15 days
2707without pay and terminated.
2711RECOMMENDATION
2712Based on the foregoing Findings of Fact and Conclusions of
2722Law, it is
2725RECOMMENDED that the Palm Beach County School Board enter a
2735final order suspending Jorge Gonzalez for 15 days without pay
2745and terminating his employment.
2749DONE AND ENTERED this 17th day of June, 2010, in
2759Tallahassee, Leon County, Florida.
2763__________________________________
2764ERROL H. POWELL
2767Administrative Law Judge
2770Division of Administrative Hearings
2774The DeSoto Building
27771230 Apalachee Parkway
2780Tallahassee, Florida 32399-3060
2783(850) 488-9675 SUNCOM 278-9675
2787Fax Filing (850) 921-6847
2791www.doah.state.fl.us
2792Filed with the Clerk of the
2798Division of Administrative Hearings
2802this 17th day of June, 2010.
2808ENDNOTES
28091/ The School Board submitted certified copies of the documents.
28192/ The hearing was delayed approximately 30 minutes to provide
2829additional time for the appearance of Mr. Gonzalez or any
2839representative on his behalf.
2843COPIES FURNISHED:
2845Corey M. Smith, Esquire
2849Palm Beach County School District
2854Post Office Box 19239
2858West Palm Beach, Florida 33416-9239
2863Jorge Gonzalez
2865123 Newberry Lane
2868Royal Palm Beach, Florida 33414
2873Dr. Eric J. Smith, Commissioner
2878Department of Education
2881Turlington Building, Suite 1514
2885325 West Gaines Street
2889Tallahassee, Florida 32399-0400
2892Deborah K. Kearney, General Counsel
2897Department of Education
2900Turlington Building, Suite 1244
2904325 West Gaines Street
2908Tallahassee, Florida 32399-0400
2911Dr. Arthur C. Johnson, Superintendent
2916Palm Beach County School District
29213340 Forest Hill Boulevard, C316
2926West Palm Beach, Florida 33406-5869
2931NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2937All parties have the right to submit written exceptions within
294715 days from the date of this recommended order. Any exceptions
2958to this recommended order should be filed with the agency that
2969will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/17/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 05/10/2010
- Proceedings: Transcript filed.
- Date: 04/16/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 04/13/2010
- Proceedings: Petitioner's Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 04/07/2010
- Proceedings: Petitioner's Notice of Filing Revised Exhibit List (exhibits not available for viewing) filed.
- PDF:
- Date: 02/09/2010
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for April 16, 2010; 9:00 a.m.; West Palm Beach and Tallahassee, FL; amended as to Date).
- PDF:
- Date: 12/14/2009
- Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for March 23, 2010; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
- PDF:
- Date: 12/02/2009
- Proceedings: Order Granting Continuance (parties to advise status by December 8, 2009).
- PDF:
- Date: 11/19/2009
- Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for February 10, 2010; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
- PDF:
- Date: 09/28/2009
- Proceedings: Order Granting Continuance (parties to advise status by October 12, 2009).
- PDF:
- Date: 09/04/2009
- Proceedings: Notice of Hearing (hearing set for October 7, 2009; 9:00 a.m.; West Palm Beach, FL).
Case Information
- Judge:
- ERROL H. POWELL
- Date Filed:
- 08/14/2009
- Date Assignment:
- 09/29/2009
- Last Docket Entry:
- 08/13/2010
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- TTS
Counsels
-
Jorge Gonzalez
Address of Record -
Corey Michael Smith, Esquire
Address of Record