13-003285 Manatee County School Board vs. Nikki Brydson Status: Closed Recommended Order on Thursday, December 5, 2013.

Summary: Petitioner proved that there was just cause to terminate Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 3285

NIKKI BRYDSON ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a n evidentiary he aring was held on

October 25, 2013, in Bradenton, Florida, before Administrative

Law Judge Elizabeth W. McArthur of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore,

Gonzalez a nd Hearing, P.A.

Post Office Box 639

Tampa, Florida 3360 1 - 0639

For Respondent: Nikki Brydson, pro se

320 12th Street West

Palmetto, Florida 34221 - 3962

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner ha s j ust cause

to terminate Respondent ' s employment.

PRELIMINARY STATEMENT

By letter dated July 16, 2013, accompanied by an

Administrative Complaint (Complaint) issued on behalf of the

Manatee County School Board (Petitioner), Respondent, Nikki M.

Brydson (Respond ent), was informed of Petitioner ' s intent to

terminate her employment as a food service worker. The

allegations in the Complaint were: (1) that Respondent violated

School Board Policy 6.11 by engaging in a scheme to defraud in

violation of a Florida stat ute, resulting in a felony charge to

which Respondent pled nolo contendere, for which adjudication was

withheld pending completion of probation terms ; (2) that

Respondent submitted a falsified timesheet in violation of

Florida Administrative Code Rule 6A - 1 0.081; and (3) that the

first two alleged violations constitute " misconduct in office "

within the meaning of Florida Administrative Code Rule

6A - 5.056(2)(b) and (c).

Respondent timely requested an administrative hearing to

contest the proposed termination. The case was forwarded to the

Division of Administrative Hearings, where it was assigned to

Administrative Law Judge Lynn Quimby - Pennock and set for hearing.

Prior to the hearing, Petitioner filed a list of its proposed

witnesses, as required by an Orde r of Pre - hearing Instructions.

Respondent did not file a witness list. On October 22, 2013, the

case was transferred to the undersigned.

At the hearing, Petitioner presented the testimony of Ben

Pieper and Forest Moore. Petitioner ' s Exhibits 1, 2A throu gh 2L,

3 through 5, 7, and 9 were admitted in evidence.

Respondent testified on her own behalf. In addition,

despite Respondent ' s failure to comply with the Order of

Pre - hearing I nstructions regarding disclosure of witnesses,

Respondent was allowed to pre sent the testimony of Beverly Hawker

and Mary Weeks, without objection by Petitioner. Respondent did

not offer any documentary evidence.

The one - volume Transcript of the hearing was filed on

November 7, 2013. The deadline for filing proposed recommend ed

orders was November 18, 2013. Petitioner timely filed its

proposed recommended order, and Respondent timely filed a letter

summarizing her position. To the extent the submissions are

based on the evidence of record, they have been considered in the

pr eparation of this Recommended Order.

FINDING S OF FACT

1. At all times pertinent to this case, Respondent was

employed by Petitioner as a food service worker in the cafeteria

at Ballard Elementary School .

2. Respondent was hired by Petitioner on November 5, 1998.

Prior to the incidents giving rise to the Complaint, Respondent

had a relatively good employment record, with two disciplinary

matters documented in her personnel file. On September 17, 2001,

Respondent was given a written reprimand for refusin g to follow

her supervisor ' s directions and giving inappropriate verbal

responses. More recently, on April 16, 2012, Respondent received

a verbal reprimand for not properly accounting for student meals.

3 . Just days after Respondent received a verbal rep rimand

related to accounting for student meals, a vehicle in which

Respondent was a passenger was stopped by a police detective . As

described below, this traffic stop ultimately led to Respondent ' s

arrest and subsequent third - degree felony charge for enga ging in

a scheme to defraud in an amount less than $20,000, in violation

of section 817.034(4)(a)3., Florida Statutes (2011) . 1/

4 . On February 21, 2013, Respondent pled nolo contendere to

the charge. Adjudication was withheld , pending Respondent ' s

succes sful completion of a five - year term of probation with

specified conditions.

5 . The circumstances giving rise to the criminal charge

against Respondent were described in detail by the City of

Bradenton Police Department detective who arrested Respondent.

The detective testified that on April 20, 2012, he pulled over a

vehicle for failing to stop at a stop sign. The detective

approached the passenger side of the vehicle, where Respondent

was seated. The detective observed a laptop computer on

Respondent ' s lap, open and in use with a portable internet access

device, but Respondent quickly shut the laptop as the detective

approached.

6 . For reasons that are not germane to the Complaint in

this case , the detective instructed Respondent to exit the

vehicle , a nd he placed her in handcuffs. The detective asked for

identification, and Respondent told him it was in her purse,

which she had placed on the passenger seat when she exited the

vehicle. The detective retrieved Respondent ' s purse and looked

inside for h er identification. In addition to Respondent ' s

identification, the detective also found several Visa debit cards

with different people ' s names on them. Also in the purse were

written instructions for filing tax returns through TurboTax,

along with ledger s containing names, social security numbers,

dates of birth, and other personal identification information.

Some of the names on the ledgers matched the names on the debit

cards found in Respondent ' s purse. Respondent was arrested for

an unrelated matter and transported back to the police station

for questioning.

7 . At the police station, Respondent was given her Miranda

rights and then questioned about the laptop and material found in

her purse. In her post - Miranda interview, Respondent told the

detect ive that the laptop was hers, but she had sold it to a

woman she knew only as " Tiffany " for $200. Respondent told the

detective that she and Tiffany entered into an arrangement

whereby Respondent would assist Tiffany in a scheme to file tax

returns in oth er people ' s names using TurboTax. The TurboTax

filings would direct that the tax refunds, issued on debit cards ,

be sent to Respondent ' s residence . F or each debit card received

pursuant to this scheme , Tiffany would pay Respondent $500, with

one exceptio n: Respondent admitted to the detective that she

gave her mother ' s personal information to Tiffany , who filed a

tax return in Respondent ' s mother ' s name; for this debit card ,

the deal was that Respondent and Tiffany would split the amount

of the tax re fun d 50 - 50.

8 . Respondent gave information to the detective regarding

where " Tiffany " could be found, but there was no " Tiffany " at the

place Respondent identified.

9 . The detective determined through a search of

Respondent ' s laptop that Turbotax had been in use when he

approach ed the vehicle and saw Respondent quickly clos ing the

computer. However, Respondent admitted that she had already

filed her own tax return, so there would be no reason for her to

be using Turbotax , except in furtherance of t he sche me to secure

other people ' s tax refunds .

10 . The detective traced the individuals whose names were

on the debit cards found in Respondent ' s purse, and he discovered

that they all were residents of a nearby retirement community .

He interviewed the resident s, who reported to the detective that

they did not know Respondent and that they had not authorized

Respondent or " Tiffany " to file tax returns on their behalf.

11 . Respondent admitted to the detective that she knew what

she was doing was wrong and illegal .

1 2 . At the hearing, Respondent provided only vague,

general, and somewhat contradictory testimony regarding the

circumstances giving rise to the criminal charge to which she

pled no contest. On the one hand, she claimed that although she

was charged, sh e " didn ' t have nothing to do with what went on[.] "

S he later admitted that she was wrong, but took the position that

she already had been punished for her wrongdoing and deserved a

second chance. The only specific fact Respondent disputed

regarding her r ole in the debit card scheme was whether she was

the one who actually filed the tax returns . Respondent did not

deny that she took part in the scheme to defraud vulnerable

people out of their tax refunds for her own financial gain .

Respondent did not den y that she used her own mother ' s personal

information for Respondent ' s financial gain . Overall,

Respondent ' s testimony lacked credibility and did not effectively

refute the detective ' s more credible testimony.

13. Respondent ' s court appearance at which he r plea was

made was on February 21, 2013, at 11:00 a.m. That day was a work

day for Respondent, and the hours she was supposed to work were

7:00 a.m. to 9:45 a.m. , and 10:15 a.m. to 1:30 p.m.

14. Respondent acknowledged that she left the cafeteria

sometim e between 10:00 a.m. and 10:30 a.m. for her court

appearance and did not return to work that day . However,

Respondent filled out her semi - monthly payroll sheet form to

reflect that she was present and working from 7:00 a.m. to

9:45 a.m. and from 10:15 a.m . to 1:30 p.m. , on February 21, 2013.

Respondent signed the payroll sheet that she filled out to

falsely reflect that she was working and should be paid for time

that she was not actually at work.

15. Petitioner ' s food services department informed its

emp loyees that it considers the accurate completion of time

records on the payroll sheet to be very important. A June 2012

written policy was circulated to food service employees to

emphasize that each employee must take care to ensure that the

time records are accurate, including " [a]ctual start and [a]ctual

end times , " verified by the employee ' s signature. As emphasis, a

text box on the written policy contained the message that

" [p]utting false or incorrect information on your timesheet is

Time Card Fraud and is grounds for disciplinary action up to and

including recommendation for termination. "

16. Respondent acknowledged that she is aware that

Petitioner expects employee time records to be accurate and

truthful , and that falsification of a time sheet is considered

time card fraud. Respondent also acknowledged that it was her

signature on the payroll sheet that was filled out inaccurately

for February 21, 2013. Respondent testified that she did " not

remember " putting down the wrong hours or signing the p ayroll

sheet, but the fact remains that the record was submitted with

her signature verifying that she worked hours that she admittedly

did not work on February 21, 2013. The result of Respondent ' s

signed submission was that she was paid for hours that sh e knows

she did not work.

17. The credible evidence established that Respondent

filled out her time records on the payroll sheet form to reflect

that she worked a full day on February 21, 2013, which she knew

was not true. Respondent signed the payroll s heet form , vouching

for the false information that she knew would be used to pay her

for hours she did not work.

18. Respondent did not dispute Petitioner ' s authority to

terminate her for just cause, nor did Respondent dispute most of

the facts alleged a s the basis for establishing just cause.

Instead, Respondent ' s position was that despite her wrongdoing,

she should be given a second chance, having worked for Petitioner

for 15 years. Essentially, then, Respondent ' s defense was an

argument for mitigatio n of the penalty to be imposed.

19. In furtherance of her position, Respondent presented

testimony from two character witnesses , but t he witnesses knew

little to nothing about the nature of the criminal charge to

which Respondent pled no contest. Neither witness offered any

information about Respondent for the time period at issue in this

case. One witness was a neighborhood acquaintance who has only

known Respondent for three months. The other witness was a

former cafeteria supervisor who was terminated by Petitioner five

years ago. The former supervisor testified that during the time

she and Respondent worked together, Respondent was a hard worker

who had her difficult moments , but who complied with and followed

instructions " most of the time . " When R espondent asked her

former supervisor whether she believed that everyone deserves a

second chance, the witness responded as follows: " I believe

everyone should have a second chance. Some people need more than

two chances, and [Respondent] might be that p erson. There ' s been

times that maybe she hadn ' t followed the rules entirely, but who

does? "

20 . Petitioner advocated against leniency based on the

unrefuted evidence that a cafeteria worker , such as Respondent ,

has access to personal and financial inform ation about students

and their families. Accounts are established for students to

draw on for their cafeteria purchases. Student account funds are

deposited, withdrawn, and accounted for by food service workers .

Family names , phone numbers , and addresse s are included with the

student account record s . In addition, many account records

reflect personal financial information of the student ' s family,

including information on applications submitted to qualify

s tudents for free or reduced - cost lunches and inf ormation from

governmental programs that provide aid to students, such as the

state - federal program to provide temporary assistance for needy

families (TANF). 2/

2 1 . It is reasonable for Petitioner to be concerned with

the risk that would be presented by allowing Respondent to

continue in her position where she has access to individual

financial information of students and their families. It is not

unreasonable for Petitioner to be unwilling to take that risk,

given Respondent ' s very recent involvement in a scheme to defraud

vulnerable people, including her own mother, for Respondent ' s

financial gain .

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 & 1 20.57(1), Fla. Stat.

2 3 . In this proceeding, Petitioner seeks to terminate

Respondent ' s employment. There is no dispute that Petitioner has

the authority to discipline Respondent, up to and including

termination, for " just cause. " Petitioner bears the b urden of

proving by a preponderance of the evidence that just cause exists

to terminate Respondent ' s employment for the reasons charged in

the Complaint , and that termination is an appropriate penalty.

McNeill v. Pinellas Cnty . Sch . Bd . , 678 So. 2d 476, 4 77 (Fla. 2d

DCA 1996); Dileo v. Sch . Bd . of Dade Cnty . , 569 So. 2d 883 (Fla.

3d DCA 1990).

2 4 . Petitioner ' s Policy 6.11, a rule promulgated by

Petitioner , sets forth a non - exclusive list of acts that

constitute " just cause , " providing in pertinent part as follows :

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited to,

immorality, misconduct in office,

incompetence, gross insubordination, wil lful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

statute, violation of the Code of Ethics and

the Principles of Professional Conduct of the

Education Profession in Florida.

2 5 . The Complaint charges Respondent under Policy 6.11 with

a violation of Petitioner ' s promulgated policies, based on

Respondent ' s conviction within the meaning of Policy 6.16.

Policy 6.16, Petitioner ' s employment standards rule, prohibits

the employment of an individual who has been convicted of a

felony for ten years after the conviction. This rule specifies

that " conviction " shall include " a plea of nolo contendere (n o

contest) " for which the disposition is " adjudication

withheld[.] " The evidence establishes that Respondent does not

satisfy Petitioner ' s employment standards rule.

2 6 . P etitioner also has met its burden of proving that

Respondent violated the statute under which she was charged by

engaging in a scheme to defraud. The unrefuted testimony was

that Respondent admitted to her wrongdoing when she was caught

with debit cards issued as tax refunds in the names of

unsuspecting retirement community residents. Respondent agreed

to participate in the scheme to defraud and to accept money for

her participation. Respondent assisted in the fraudulent scheme

by using her own mother ' s personal information for a tax return

that would generate a tax refund, of which Respondent was to earn

half. Respondent admitted these facts to the detective who

arrested her and did not refute them at hearing .

2 7 . Petitioner met its burden of proving that Respondent

is guilty of " misconduct in office " as defined in rule

6A - 5.056( 2)(c) to include a " violation of the adopted school

board rules. " Petitioner has demonstrated that Respondent

violated a Florida statute and Petitioner ' s promulgated policies

by participating in a scheme to defraud and by being convicted of

a third - degree felony contrary to Petitioner ' s employment

standards. Each of these acts violates Policy 6.11 and provides

just cause for terminating Respondent ' s employment.

2 8 . The Complaint also charges Petitioner with violating

one of the Principles of Professional Conduct for the Education

Profession in Florida, codified in rule 6A - 10.081 (formerly

6B - 1.006). In particular, Respondent is charged with violating

the principle prohibiting submission of " fraudulent information

on any document in connection with profes sional activities. "

Fla. Admin. Code R. 6A - 10.081(5)(h). Petitioner met its burden

of proving that Petitioner violated this rule by falsifying her

time records on the payroll sheet form that she signed so that

she would be paid for hours she did not work .

2 9 . A violation of one of the principles of professional

conduct codified in rule 6A - 10.081 constitutes just cause for

termina tion, pursuant to Petitioner ' s P olicy 6.11 quoted above.

In addition, a violation of one of the principles of professional

con duct codified in rule 6A - 10.081 constitutes " misconduct in

office " as defined in rule 6A - 5.056(2)(b).

30 . Petitioner has met its burden of proving just cause to

terminate Respondent ' s employment.

3 2 . Petitioner has also met its burden of proving that

term ination is the appropriate penalty for Respondent ' s statutory

and rule violations. Respondent pointed to her 15 years working

for Petitioner and urged that she be given a second chance. By

the testimony of Respondent ' s own witness, she has already been

g iven second chances. More importantly, however, Petitioner

established cause to be concerned with Respondent ' s continued

employment because of the access she would have in her position

to the sort of personal and financial information that was at the

hear t of her recent wrongdoing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

a final order terminating the employment of Respondent, Nikki M.

Brydson.

DONE AND ENT ERED this 5th day of December , 2013 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 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 5th day of December , 2013 .

ENDNOTE S

1/ Unless otherwise provided, statutory citations herein are to

the F lorida Statutes (2013). With regard to the criminal charge

against Respondent, the 2011 statute is cited because that is the

law that was in effect at the time of the alleged conduct giving

rise to the criminal charge.

2/ The TANF program is considere d a state program, defined by

federal law and funded with federal dollars, to provide cash

assistance to needy families. See gen erally § 414.045, Fla.

Stat.

COPIES FURNISHED:

Pam Stewart

Commissioner of Education

Department of Education

Turlington Buil ding, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Rick W. Mills, Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205 - 9069

Erin G. Jackson, Esquire

Thompson, Sizemore,

Gonzalez and Hearing, P.A.

Post Office Box 639

Tampa, Florida 3360 1 - 0639

Nikki Brydson

320 12th Street West

Palmetto, Florida 3 4221 - 3962

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.