12-000760TTS Monroe County School Board vs. Thomas Amador Status: Closed Recommended Order on Wednesday, February 6, 2013.

Summary: Recommend dismissal of administrative complaint against educational support employee where school board failed to introduce competent evidence regarding the terms of the collective bargaining agreement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 12 - 0760 TTS

)

THOMAS AMADOR , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference at sites in Tallahassee and

Key West , Florida, on May 15, 2012 , before Administrati ve Law

Judge Edward T. Bauer of the Division o f Administrative

Hearings .

APPEARANCES

For Petitio ner: Theron C. Simmons , Esquire

Vernis & Bowling of the

Florida Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada , Florida 33036

For Respondent: Mark S. Herdman, Esquire

Herdman & Sakellarides, P.A.

296 05 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether there is just cause to terminate Respondent' s

employment with the Monroe County School Board.

PRELIMINARY STATEMENT

By correspondence dated January 1 9, 2012, the Monroe County

School Board ("Petitioner") notified Respondent that it intended

to terminate his employment as an air - conditioning mechanic. On

t he same date, Petitioner filed an Administrative Complaint

against Respondent , wherein it alleged that Respondent was

subject to discipline because he : used institutional privileges

for personal gain or advantage, contrary to school board policy

4210(I); failed to maintain honesty in all dealings, in

violation of school board policy 4210(L); and submi tted

fraudulent information on employment documents, as prohibited b y

school board policy 4210(Q).

Respondent timely requested a formal administrative hearing

to contest Peti t ioner's action. On February 24, 2012 , the

matter was referred to the Division o f Administrative Hearings

("DOAH") for further proceed ings.

As noted above, the final heari ng was held on May 15, 2012 ,

during which Petitioner introduced 18 exhibits, numbered 1 - 18,

and presented the testimony of Cheryl Allen and Jeff Barrow .

Responden t testified on his own behalf and introduced 15

exhibits, numbered 1 - 15.

The final hearing T r anscript was filed on June 1, 2012 . On

June 11, 2012, the parties requested, and the undersigned

subsequently ordered , an extension of the proposed recommended

order deadline to June 13, 2012. B oth parties thereafter

submitted proposed recommended orders, which have been

considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to the Fl orida Statutes

refer to the 2011 version .

FINDINGS OF FACT

1. Petitioner is the entity charged with the

responsibility to operate, control, and supervi se the public

schools within Monroe County, Florida.

2. At all tim es material to this proceeding, Petitioner

employed Respondent as a non - p robationary air - conditioning

mechanic in the Upper Keys.

3. As noted previously, Petitioner initiated the instant

cause against Respondent on January 19, 2012. In a letter

signed by the superintendent of schools on that date, Petitioner

advised Responden t that it intended to terminate his employment:

[F]o r willful violation of school board

policy, 4210(I), (L) and (Q), by theft of

time, inappropriate use of a District owned

vehicle, and by making fraudulent statements

in required District paperwork, all of which

are grounds for discipline up to and

including termination.

* * *

This action is being taken in accordance

with School Board Policies . . . and the

Collective Bargaining A greement .

(emphasis added).

4. The above - quoted language notwithstandin g , Petitioner's

Administrative Co mplaint ("Complaint") , filed contemporaneously

with the superintendent's letter , does not purport t o discip line

Respondent in accordance the c ollective bargaining agreement, 1 /

the terms of which are neither referen ced in th e Complaint nor

included in the instant re cord ÏÏ a fatal error, as explained

later. Instead, Petitioner seeks in its Complaint to terminate

Respondent's employment based s olely upon alleged violations of

School Board Policy 4210 (specifically, subsections I, L, and

Q) , which provides , in relevant part:

4210 Î Standard for Ethical Conduct

An effective educational program requires

the services of men and women of integrity,

high ideals, and human understanding. The

School Board expects all support staff

memb ers to maintain and promote these

essentials. Furthermore, the School Board

hereby establishes the following as the

standards of ethical conduct for all support

staff members in the District who have

direct access to students : A support staff

member with direct access to students shall:

* * *

I. not use institutional privileges for

personal gain or advantage.

* * *

L. maintain honesty in all dealings.

* * *

Q. not submit fraudulent information on any

document in connection with employment.

(emphasis added).

5. Significant ly, the record is devoid of evid ence that

Respondent has direct access to students, and the n ature o f

Respondent's position (an air - conditioning mechanic) does not

permit the undersigned to infer as much ; therefore, Petiti oner

has failed to demonstrate that Respondent is subject to the

proscript ions of School Board Policy 4210 .

6. In light of these unique circumstances ÏÏ i.e.,

Petitioner has not proceed ed against Respondent under the terms

of the collective bargaining agr eement (as it should have), but

rather, under a school board policy that applies only to

employees that have direct access to students ÏÏ it is unneces sary

to reach the merits of the underlying allegations of misconduct.

CONCLUSIONS OF LAW

7 . The Divisi on of Administrative Hearings has

jurisdiction over the subject matter and pa rties to this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes.

8. Petitioner bears the burden of proof in this

proceeding. Cisneros v. Sch. B d . of Miami - Dade C nty . , 990 So.

2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the

School Board had the burden of proving th e allegations . . . by

a preponderance of the evidence"); McNeil l v. Pinellas Cnty.

Sch. B d . , 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("Th e School

Board bears the burden of proving, by a preponderance of the

evidence, each element of the charged offe nse which may warrant

dismissal").

9 . As an air - conditioning mechanic , Re spondent is an

educational support employee as defined by section

1012 .40(1)(a), Florida Statutes. See Lee Cnty. Sch. Bd. v.

Rasmussen , Case No. 08 - 6220 , 200 9 Fla. Div. Adm. Hear. LEXIS 912

(Fla. DOAH June 22 , 2009) (finding that a maintenance worker is

an educational support employee pursuant to section 1012.40).

10 . Secti on 1012.40(2)(b), Florida Statutes, provides that

non - probationary support employees such as Respondent are

entitled to maintain their employment from year to year unless :

[T] he district school superintendent

terminates the employee for the 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.

(emphasis added).

11 . Pu rsuant t o section 1012.40(2)(b) , Petitioner was

obligated, once it determined to pursue the termination of

Respondent's employment, to proceed forward under the terms of

the collective bargaining agreement. However, Petitioner did

not do so ÏÏ and, as a natural con sequence, has not made the

bargaining agreement part of the record ÏÏ which makes it

impossible to ascertain whether Respondent's alleged misconduct

prov ides a basis for discipline . This alone requires the

Complaint 's dismissal , as illustrated by Mi ami - Dade School Board

v. Alvin , Case No. 03 - 3515, 2004 Fla. Div. Adm. Hear. LEXIS 1693

(Fla. DOAH Mar. 19, 2004) , adopted in toto June 17, 2004. In

Alvin , the school district sought to terminate the employment of

a school security monitor based upon, among other things, the

employee's pleas of no contest to several criminal drug charges.

Id. Although the terms of the employment were governed by a

collective bargaining agreement, the school board failed to make

the contract part of the e videntiary record ÏÏ a defic iency that

necessitated the dismissal of the administrative complaint:

In this case, because a collective

bargaining agreement does exist, Alvin can

be terminated only for reasons stated

therein. Such "reasons" are matters of fact

that the Board must prov e as part of its

case - in - chief. Usually this is done by

moving the collective bargaining agreement

into evidence. Here, however, the Board

failed at hearing to introduce the

collective bargaining agreement or offer any

other competent evidence of its ter ms.

* * *

By statute, the UTD Contract, as the

applicable collective bargaining agreement,

prescribes the standards against which the

undersigned fact - finder must evaluate

Alvin's conduct, to determine whether he

should be fired. Thus, whether Alvin

vio lated the applicable contractual

standard(s) is a question of ultimate fact

to be decided in the context of each alleged

reason for terminating his employment.

* * *

Without knowing the "reasons stated in the

collective bargaining agreement" as

potenti al grounds for termination, the

undersigned obviously cannot determine, as a

matter of ultimate fact, whether Alvin

should be terminated. To learn what those

reasons are, the undersigned is required to

rely " exclusively on the evidence of record

and on ma tters officially recognized." See

§ 120.57(1)(j), Fla. Stat. (emphasis added).

Consequently . . . the Board's failure to

introduce the UTD Contract (or some

competent evidence of its terms) is fatal to

the Board's case.

Id. at *6 - 8 (emphasis in original ). 2 / Persuaded by Alvin's

reasoning, it is concluded that Petitioner's failure to

introduce competent evidence of the terms of the collective

bargaining agreement is fatal to its case.

12 . Assuming arguendo that no bargaining agreement exists ,

Peti tion er's case nevertheless fails , as the rule under which

Petitioner seeks to discipline Respondent ( school board p olicy

4210 ) applies, by its express terms, only to support employees

who have direct contact with s tudents. A s found above,

Petitioner a dduced n o evidence that Respondent has such contact.

RECOMMENDATION

Based on the foregoing findings of fac t and conclusions of

Law, it is RECOMMENDED that the Monroe County School Board enter

a final order : d ismissing the Admin istrative Complaint; and

immediately reinstating Respondent's employment.

DONE AND ENTE RED this 21st day of June , 2012 , in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative He arings

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 Administrative Hearings

this 21st day of June , 2012 .

ENDNOTE S

1 / The existence of a collective bargaining agreement is

confirmed by several brief references to the document (by

Petitioner's counsel and a witness) during the final hearing.

See Final Hearing Transcript, p. 23; 34; 45 - 46.

2 / The administrative law judge in Alvin declined, properly, to

re - open the record (which would have provided the school board

an opportunity introduce the bargaining agreement) or take

official recognition of the agreement's terms. As the judge i n

Alvin explained:

First, . . . receiving additional evidence

(or officially recognizing facts) after the

record has been closed is disfavored and

should be avoided.

* * *

Second, as the Florida Supreme Court has

explained, "courts should exercise great

caution when using judicial notice. As has

been held in this state and elsewhere,

judicial notice is not intended to fill the

vacuum created by the failure of a party to

prove an essential fact."

* * *

Third, the Board will not be authorized to

"reopen the record, receive additional

evidence and make additional findings" when

this case is again before the agency for the

purposes of entering the final order. Nor

will the Board be allowed to official l y

recognize the UTD Contract, because

"[o]fficial reco gnition is not a device for

agencies to circumvent the hearing officer's

findings of fact by building a new record on

which to make findings." Given these

circumstances, the undersigned is reluctant

to take a discretionary action on his own

motion that wo uld look to any objective

observer like bending - over - backwards to

rescue the Board from its failure to

introduce sufficient evidence at hearing.

Finally, it is concluded that giving the

Board a mulligan here would require the

undersigned improperly to ass ume a patently

adversarial posture vis - à - vis Alvin.

Alvin , 2004 Fla. Div. Adm. Hear. LEXIS 1693 at *9 - 11 (internal

citations omitted)(emphasis in original).

COPIES FURNISHED :

Theron C. Simmons, Esquire

Vernis & Bowling of the

Florida Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036

Mark S. Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Dr. Jesus F. Jara, Superintendent

Monroe County School Board

u mbo Road

Key West, Florida 33040

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commissioner

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 must be filed with the

agency that will issue the final order in this case.