12-000064TTS Pinellas County School Board vs. Gilbert Wheelehan Status: Closed Recommended Order on Friday, May 18, 2012.

Summary: Falsification of time records warrants termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0064TTS

)

GILBERT WHEELEHAN , )

)

Respondent . )

)

RECOMMENDED ORDER

A n administrati ve hearing in this case was held on March 1

and 2, 2012 , in Largo, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas Cou nty Schools

301 Four th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Michael Ira Krohn, Esquire

Sun Coast Police Benevolent

Association, Inc.

Suite 1205

14141 46th Street, North

Clearwater, Florida 33762

STATEMENT OF THE ISSUE

The issue in this case is whether the Pinellas County School

Board (Petitioner or School Board ) has "just cause" to terminate

the employment of G ilbert Wheelehan (Respondent).

PRELIMINARY STATEMENT

By letter dated November 15, 2011, the Petitioner notified

the Respondent that, "based on the facts and violations contained

in the Agenda item dated December 6, 2011," the Petitioner

intended to terminate t he Respondent's employment as an officer

with the Petitioner's p olice d epartment . The rationale for the

proposed termination was set forth in an attached document

prepared f or consideration by S chool B oard members a t their

December 6 , 2011 , meeting and was provided to the Respondent as

an attachment to the November 15 letter . Essentially, t he

Petitioner has charged the Respondent with falsification of

payroll records from Ap ril 1 through October 26, 2011, by

reporting that he was at his assigned work location when he was

not.

The Respondent challenged the proposed termination and

requested an admin istrative hearing. On January 5 , 2012, the

Petitioner forwarded the request to the Division of

Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

nine witnesses and had Exhibits 1 through 11 admitted into

evidence. The Respondent testified on his own beha lf , presented

the testimony of three additional witnesses, and had Exhibits 1

thr ough 5 admitted into evidence.

A Transcript of the hearing was filed on March 14 , 2012.

Pursuant to the schedule adopted at the conclusion of the

hearing, the parties filed p roposed r ecommended o rders that ha ve

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Beginning in January 2006, and at all times material to

this case, the Respondent has been employed as a police officer

with the Pinella s County Schools Police Department (PCSPD) .

2. In March 2011, the Respondent was assigned to be a

"south county float" based at the Hamilton Diss t on School .

3. Although based from a specific location, a "f loat "

o fficer can be directed to respond to polic e calls or to perform

other duties away from his assigned post .

4. In an email to various PCSPD officers dated March 23,

2011, Police Sergeant Richard Roseberry notified officers of new

work assignments. The email specifically advised the Respondent

that he would be assigned the "afternoon and evening position" at

the school board administration buildi ng beginning on April 4,

2011.

5. The Respondent was unhappy with the change in assignment

and requested that the s ergeant reconsider the change. When the

s ergeant denied the request , the Respon dent escalated the request

to P C S PD Chief Tom Gavin, who also denied the request. The

R espondent thereafter contacted Chief Gavin's supervisor to voice

his dissatisfact ion, but to no apparent avail.

6. Accordingly, as of April 4, 2011, the Respondent was to

work at the administration building from 1:00 p . m . to 9:00 p . m .

on Monday through Thursday and from 9:00 a . m . to 5:00 p . m . on

Friday.

7. In summer 2011, the PCSPD went to a ten - hour workday to

accommodate vacati on schedules, and the Respondent's work ing

hours changed, but he continued to be assigned to work at the

administration building. The summer work schedules clearly

identified employees who were designated as "floats , " and the

Res pondent was not so designa ted.

8. When the 2011 - 2012 school year began, the Respondent

remained assigned to the administration building with a work

schedule from 1:00 p . m . to 9:00 p . m . on Monday through Thursday

and from 2:00 p . m . to 5:00 p . m . on Friday .

9. In September 2011, Ser geant Roseberry was advised by

another police officer that the Respondent was not reporting for

work at the commencement of his shift, and Sergeant Roseberry

began to review the Respondent's time records.

10. PCSPD officers record their time worked using a " duty

roster " form. According to the directions on the form, the

records should indicate actual time on and off duty "as defined

in our general order."

11. General Order III - 6, issued August 2, 2004 , by the

PCSPD, governs matters of attendance and leav e relevant to this

case. Section II provides in relevant part as follows:

II. ATTENDANCE

Employees are expected to report to work on

time, prepared to work, and shall complete

their entire assigned shift. Violations can

result in discipline under Board policies and

may include revocation of the use of an issued

Board vehicle.

A. Checking on and off duty

1. An employees' work day does not begin

until they have arrived at their assigned

school, Area office or the WPSC [Walter

Pownall Service Center] , unless directed by a

dispatcher or supervisor to respond to anot her

location to handle a call.

avel time to their work site from home

is not considered part of their work day.

Employees shall not leave their assigned work

site until they have compl eted their shift.

3. Officers not assigned to a specific site

(such as float units o r K - 9 units) shall

respond to either an area office or to the

WPSC in a timely manner to begin their day.

4. Officers while en route to their work

site, or en route home from the work site,

shall notify the Communications Center that

they are "10 - 10 in route . . . ." Upon

arrival at their assigned work site they will

check "10 - 8 at XXXXXX School." Radio

communications are considered an official

report and intention ally providing false

information is a violation of Board policy.

5. Each employee will complete a "duty

roster" form indicating the hours they worked,

and shall include explanations as necessary.

This duty roster form shall be completed and

signed, an d either faxed to the department's

secretary, or hand delivered to the office by

0900 hrs each Monday.

12. PCSPD employees, including the Respondent, have been

periodically reminded of the general order's attendance rules

through formal in - service traini ng as well as in informal

communications.

13. Radio communications between PCSPD officers and the

Communications C enter are documented by the radio dispatchers.

Sergeant Roseberry reviewed the Respondent's duty rosters and the

records of the Respondent's communications with dispatchers and

noticed that there was a discrepancy between the communication

records and the times recorded on the Respondent's duty rosters.

14. Sergeant Roseberry observed that t he duty rosters

indicated that the Respondent was pr esent for work at the

administration building during times when t he dispatch

communication records indicated he would have been traveling in

his police car from his residence (a commute that could take

upwards of 45 minutes) to the administration building .

15. Sergeant Roseberry referred the matter to the Office of

Professional Standards, where it was assigned to Investigator

James Kappel.

16. Investigator Kappel reviewed the Respondent's duty

rosters and dispatch communication records , as well as records

from the administration buildi ng's Sonitrol security system.

17. During his review, Investigator Kappel also personally

observed the Respondent arriving late at the administration

building or departing from his residence too late to complete his

commute before the start of his scheduled shift. During this

same period, Sergeant Roseberry also observed the Resp ondent

arriving late for work.

18. Investigator Kappel's review eventually documented

15 instances between August 29 and October 12, 2011, wherein the

Respondent reported that he was present to work at his assigned

post when he was not.

19. During August 29 and October 12, 2011, the Respondent

submitted duty rosters seeking payment for 5.9 hours of work when

he was not present at his assigned work l ocation.

20. On at least those 15 occasions, the Respondent falsely

claimed on his duty rosters that he was at his assigned post at

the beginning of his shift when he was not. At the hearing, the

Respondent asserted that he believed the general order pol icy

referenced herein applied only to officers assigned to schools,

that he assumed that he was to be paid for his travel time, and

that the practice documented by Mr. Kappel occurred throughout

the time that the Respondent had been assigned to work at the

administration building.

21. There was no credible evidence presented to suggest

that the Respondent was exempt from the attendance requirements

stated in the general order or that he was entitled to be paid

for time spent commuting between his home and his assigned work

location.

22. The Respondent also asserted that an email from

Sergeant Roseberry dated May 11, 2011 , created confusion about

the Respondent's duty assignment and that he believed he was a

"float" officer from 1:00 p.m. to 2:30 p . m . after being assigned

to the administration building effective April 4, 2011.

23. There was no credible evidence presented that would

support the Respondent's assertion that he was a "float" officer

after April 4, 2011. Sergeant Roseberry's May 11 email was

re lated to timely completion of background checks for new

employees , and nothing therein suggested that the Res pondent was

a "float unit" for any portion of the workday .

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction

over th e parties to and the sub ject matter of this proceeding.

§§ 120.569 & 120.57, Fla. Stat. (2011).

25. The Respondent is an "educational support employee" as

defined at s ection 1012.40(1)(a), Florida Statutes (2011) .

Termination of the Respondent's employme nt is governed by the

provisions of the agreement between the Petitioner and the

Pinellas County Police Benevolent Association, Inc. , which states

that termination shall be for "just cause" as defined by School

Board Policy 4140.

26. The Petitioner has th e burden of proving by a

preponderance of the evidence the allegations underlying the

proposed termination of the Respondent's employment. McNeill v.

Pinellas Cnty . Sch . Bd . , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo

v. Sch . Bd . of Dade Cnty . , 569 So. 2d 8 83 (Fla. 3d DCA 1990). In

this case, the burden has been met .

27. The evidence established that the Respondent falsely

reported the time and hours worked on the payroll records he

submitted to the Petitioner . The Respondent reported that he was

present at his assigned work location when he was not. The

Respondent's inclusion of travel time in the hours reported on his

duty roster is clearly prohibited by the g eneral o rder .

28. The Petitioner has charged that the Respondent violated

the following provis ions of School Board Policy 4140 :

Policy 4140A(8) - - F alsification or alteration

of employment paperwork, district forms,

documents or certification;

Policy 4140A(9a ) - - F ailure to perform the

duties of the position ;

Policy 4140A(21) - - Conduct unbecoming a Board

employee that brings the District into

disrepute or that disrupts the orderly

processes of the District ;

Policy 4140A(22) - - Mis conduct or misconduct in

office;

Policy 4140A (24) - - Failure to comply with Board

policy, State law, or appropriate co ntractual

agreement.

29. By falsely reporting that he was on duty at his assigned

work location when he was not, the Respondent violated School

Board Policy 4140A(8).

30. The Petitioner alleged that the Respondent violated

School Board Policy 4140A(9a ) , but the evidence failed to

establish that the Respondent did not perform the sp ecific duties

of his position.

31. The Respondent disrupted the orderly processes of the

school district and violated School Board Policy 4140A(21) by

failing to report for work as required and by fals ely reporting

his time on his duty roster .

32. The Respondent's falsification of time records

constitute d misconduct in office and a violation of School Board

Policy 4140A(22).

33. The Respondent 's failure to comply with the r equirements

of General Order III - 6 violated School Boar d Policy 4140A(24) .

34. The Petitioner utilizes a system of progressive

discipline . According to the guidelines set forth in School Board

Policy 4140A, the penalty for each alleged violation ranges f rom a

letter of caution to dismissal from employment. Where there is a

range of penalties, the policy requires consideration of

aggravating or mitigating circumstances . School Board Policy

4140C provides as follows :

The following aggravating and mitigati ng

factors or circumstances will be considered

when determining the appropriate penalty

within a penalty range:

1. the threat posed to the health, safety or

welfare of students, co - work ers, or members of

the public;

2. t he severity of the offense;

3. degree of student involvement;

4. th e disciplinary history of the employee,

including the number of offenses, the length

of time between offenses as well as the

similarity of offenses;

5. t he actual damage, physical or otherwise,

caused by the miscond uct;

6. any effort of rehabilitation by the

employee;

7. attemp ts by the employee to correct or

stop the misconduct;

8. pecuniary benefit or self - gain to the

employee realized by the misconduct;

9. impact of offense on students, co - workers,

or memb ers of the public;

10. length of employment;

11. whether the misconduct was motivated by

unlawful discrimination;

12. employee's evaluations;

13. any other relevant miti gating or

aggravating factors.

35. In this case, termination of the Responden t's employment

is warranted. The Respondent's falsification of time records was

intentional and resulted in the Respondent being paid for time not

worked. Other employees have been terminated by the Petitioner

for falsification of time records. In Febru ary 2011, t he

Respondent had been penalized with a one - day unpaid suspension on

an unrelated matter and was advised at that time that additional

policy violations could result in dismissal from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Pinellas County School Board

issue a f inal o rder terminating the em ployment of Gilbert

Wheelehan.

DONE AND ENTERED this 1 8 th day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

WILLIAM F. QUATT LEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

this 1 8 th day of May , 2012 .

COPIES FURNISHED:

Laurie A. Dart, Esquire

Pinellas County Schools

301 Four th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Michael Ira Krohn, Esquire

Sun Coast Police Benevolent

Associat ion, Inc.

Suite 1205

14141 46th Street, North

Clearwater, Florida 33762

Charles M. Deal , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson , Commissioner

Depart ment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. J ohn A. Stewart , Superintendent

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.