21-000067 Miami-Dade County School Board vs. Jose Fleites Status: Closed Recommended Order on Monday, November 22, 2021.

Summary: Petitioner provided, by a preponderance of the evidence, that Respondent engaged in the conduct charged in the administrative complaint and in doing so, violated school board policies. Recommend suspension without pay and termination.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 21 - 0067

J OSE F LEITES ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was conducted in this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes (20 21 ), 1 by Cathy M. Sellers, an

Administrative Law Judge ("ALJ") of the Division of Administrative Hearings

("DOAH") , on May 20, 2021, by Zoom C onferenc e.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Flor ida 33132

For Respondent: Teri Gut t man Valdes, Esquire

1501 Venera Avenue, Suite 300

Miami, Florida 33146

1 All references to chapter 120 are to the 2021 version. All other statutory references are to

the 2019 and 2020 versions of Florida Statutes, which were in effect at the time of the

alleged conduct giving rise to this proceeding. As a practical matter, none of the substantive

statutory provisions applicable to this proceeding were amended in the 20 20 legislative

session, so the 2019 and 2020 versions are the same.

S TATEMENT O F T HE I SSUE

The issue in this case is whether just and good ca use exis ts to terminate

Respondent from his employment as an educational support employee with

Miami - Dade County Public Schools .

P RELIMINARY S TATEMENT

On December 10, 2020, Petitioner, Miami - Dade County School Board, took

agency action to suspend Respond ent, Jose Fleites, without pay, and to

terminate his employment as an electrician with Miami - Dade County Public

Schools (hereafter, the "District" ). Respondent timely requested an

administrative hearing, and the matter was referred to DOAH on January 6,

20 21, for assignment of an ALJ to conduct the final hearing.

The final hearing was scheduled to be conducted by Zoom conference on

March 2, 2021. Pursuant to the Order Requiring Filing of Notice of Specific

Charges issued on January 22, 2021, Petitioner fi led its Notice of Specific

Charges, which constituted its administrative complaint in this proceeding,

on February 1, 2021. Thereafter, pursuant to the parties ' motion s filed on

February 19 , and April 16, 2021, the final hearing was continued to April 27

a nd May 20, 2021.

On April 23, 2021, Petitioner filed a Motion to Admit Business Records

Via Written Certification. Respondent's Response in Opposition to

Petitioner's Motion to Admit Business Records Via Written Certification was

filed on April 30, 2021. On May 4, 2021, the undersigned issued the Order

Denying Motion to Admit Business Records Via Written Certification.

On April 26, 2021, Petitioner filed an Amended Motion to Amend Notice of

Specific Charges, accompanied by the Amended Notice of Specific Charges.

On April 30, 2021, Respondent filed Respondent's Response in Opposition to

Petitioner's Amended Motion to Amend Notice of Specific Charges. On May 4,

2021, the undersigned issue d the Order Granting Motion to Amend

Administrative Complaint, accepti ng the Amended Notice of Specific Charges

(hereafter , "Amended Administrative Complaint") filed on April 26, 2021, as

the operative administrative complaint in this proceeding.

The final hearing was held on May 20, 2021. Petitioner presented the

testimon y of Avram Pol i nsky, Timothy Jones, James Tuning, Carlos Diaz,

Melissa Vi n centi, and Darryl Lyles. Petitioners Exhibits 1 through 4, 6, 6A,

and 6B were admitted into evidence without objection, and Petitioner's

Exhibits 5 and 7 were admitted into evidence over objection. Petitioner's

Exhibit 6C was tendered but not admitted into evidence. Respondent testified

on his own behalf and presented the testimony of Michael Thomas.

Respondent's Exhibit 1, consisting of a composite of documents, was admitted

into evi dence without objection.

The one - volume Transcript of the Final Hearing was filed at DOAH on

August 4, 2021, and the parties were given until August 16, 2021, to file their

proposed recommended orders. Pursuant to Respondent's agreed motions, the

deadlin e for filing proposed recommended orders was extended to August 31,

2021, then to September 13, 2021.

The parties timely filed their proposed recommended orders on

September 13, 2021. Both proposed recommended orders have been duly

considered in preparin g this Recommended Order.

F INDINGS O F F ACT

A. The Parties

1. At all times material to this proceeding, Petitioner was a duly -

constituted school board charged with the duty to operate, control, and

supervise free public schools within Miami - Dade County , pursuant to article

IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida

Statutes.

2. At all times material to this proceeding, Respondent was employed by

the District as an electrician at Maintenance Service Center 4 (hereafter,

"MSC 4") in Miami - Dade County, Florida. As such, Respondent was subject to

applicable Florida Statutes, applicable State Board of Education rules ,

Petitioner's policies and procedures, and the Dade County Schools

Maintenance Employees Committee ("DCSMEC") Contr act. 2

B . Charges in the Amended Administrative Complaint

3. The Amended Administrative Complaint alleges that between May and

July 2019, Respondent misrepresented his working time on daily status

forms and forged the signatures of worksite administrators o n daily status

forms.

4. The Amended Administrative Complaint charges Respondent with

having violated Florida Administrative Code R ules 6A - 5.056(2) and 6A -

10.081 and School Board P olicies 4210, 4210.01, and 8700 .

5. The Amended Administrative Complaint all eges that the conduct in

which Respondent is alleged to have engaged , and the violations with which

he has been charged , constitutes just cause to suspend Respondent without

pay and terminate him from his employment position with the District .

2 The version of the DCSMEC Contract in effect between July 1, 2018, and June 30, 2021,

was in effect at the time of the alleged conduct giving rise to this proceeding, and, therefore,

a pplies to this proceeding.

C . Evidence Adduced at the Final Hearing

Background

6 . Respondent was hired by the District as an electrician in February

2007. He worked at Maintenance Service Center 3 until September 2008,

when he was reassigned to MSC4.

7. MSC4 is one of four District maintenanc e service centers that the

District operates. MSC4 is several acres in area and contains trucks, storage

facilities, a fue ling station , and dumpsters.

8 . The geographic service area for which MSC4 is responsible stretches

from Southwest 168th Street, in Mi ami, southward to the Miami - Dade

County/Monroe County line.

9 . District employees assigned to MSC4 perform work at District facilities

within the MSC4 service area.

10 . Respondent's work hours at MSC4 were from 6:00 a.m. to 2:30 p.m. He

worked at MSC4 fr om September 2008 until December 2020, when he was

suspended without pay and Petitioner took agency action to terminate his

employment with the District .

11 . Respondent's home is located approximately 21 miles north of the

northern boundary, and over 30 m iles north of the southern boundary, of the

MSC4 service area.

12 . During his employment at MSC4, Respondent engaged in the typical

tasks performed by electricians who work for the District . Specifically, he

handled work orders sent to MSC4 from District school facilities , entailing a

wide range of electrical issues that arose , including loss of power, lighting

issues, air conditioning, kitchen equipment, electrical wiring, damaged

motors, and other tasks.

13 . Electricians are Ð and, at the time of Respond ent's alleged conduct

giving rise to this proceeding, were Ð assigned work by a foreman at MSC4.

Work orders for specific jobs at specific facilities would be given by the

foreman to the electrician, who would travel to the facility and perform the

requested work. An electrician could be given several work orders on a given

day, and if the work assigned through a work order was not completed that

day, the electrician would return the following day to complete the work. If

the electrician finishe d all of the w ork assigned through a work order , he or

she was to contact the foreman, who would dispatch the electrician to another

location to complete another work order.

14 . Electricians kept track of their work each day on a Daily Status Form

("DSF"), which (as th e name indicates) was required to be completed by the

electrician and submitted to the foreman on a daily basis. On each DSF, the

electrician would provide a brief description of the work performed ; enter the

amount of time spent on a particular job ; state whether the job was

completed ; and obtain the signature of the principal or authorized

representative , who , by signing the DSF, verifie d that the work described on

the DSF for that facility was, in fact, performed .

15 . At the time of the alleged conduct giving rise to this proceeding,

Respondent's supervisors were Michael Thomas and a person referred to in

the record as "Mr. Hetzer ." 3 At that time , and at the time of the final hearing

in this proceeding , Timothy Jones was the director of MSC4 , so was the

supervisor for Thomas, Hetzer, and Respondent .

16 . At the time of Respondent's alleged conduct giving rise to this

proceeding, he was assigned a District work vehicle having Vehicle Number

202209.

Telogis Vehicle Tracking Software Installed in District V ehicles

1 7 . In 2016, the District purchased new Ford trucks for MSC4. The

vehicles came equipped with global positioning system ("GPS") hardware and

Telogis software, a Verizon Connect software product. Via cellular signal, the

Telogis software tracks , a mong other things, the location and speed of

3 The record does not refer to Mr. Hetzer's first name. Hetzer died in January 2020, so was

unavailable to testify at the final hearing.

equipped District vehicle s . The software enables the District to efficiently

manage its fleet of vehicles.

18 . Respondent, along with the other MSC4 employees and the members

of the DCSMEC union, was informed b y Jones that the District vehicles used

by employees at MSC4 were equipped with the Telogis software.

19 . The work vehicle assigned to Respondent, Vehicle Number 202209 ,

was equipped with the Telogis software. The evidence establishes that

Respondent knew his vehicle was equipped with the Telogis software.

20 . The data for each District vehicle is gathered by the Telogis software

and electronically stored by Verizon C onnect in a records storage and

maintenance platform called Fleet. Verizon Connect c ustomer s have access to

th e data stored in the Fleet platform for purposes of monitoring the location

and performance of their vehicles , and they can print out reports of their

vehicle data that is stored in the Fleet platform.

21 . The competent, substantial, an d persuasive evidence establishes that

the Telogis software functions accurately in recording the vehicle location ,

speed , and other monitored features . No competent or persuasive evidence

was provided showing that the Telogis software was generally unreli able or

that it had a significant error rate. 4

Respondent's Alleged Conduct Giving Rise to this Proceeding

22 . On or about July 12, 2019, Hetzer , who was Respondent's immediate

supervisor at the time, and Jones found Respondent sleeping in his work

vehicl e .

23 . This incident caused Jones to investigate Respondent's work - related

records for the preceding few months, because, as Jones put it, "I just wanted

to see what Mr. Fleites had been up to." Jones testified, credibly, that had he

found other employees sleeping on duty, he also would have accessed the

Telogis software reports for their vehicles.

4 See paragraph 66, below.

24 . As part of the investigation, Jones or Hetzer accessed , and printed out,

the Telogis software reports for Respondent's work vehicle for the period from

Ma y 1 to July 1 2 , 2019 . 5 , 6

25 . Also a s part of the investigation, Jones reviewed Respondent's DSFs

for the period from May 1 to July 1 2 , 2019 .

26 . Jones compared the Telogis software reports for Respondent's vehicle

with the DSFs that Respondent had compl eted for the period from May 1 to

July 1 2 , 2019.

27 . Based on the information provided by the Telogis software for

Respondent's District vehicle , Jones determined that on numerous days

during the period between May 1 and July 1 2 , 2019 , Respondent either was

not at the specific location he had recorded on the DSF for that day , or he was

not present at a specific location for the amount of time he had stated for that

day.

28 . Specifically, on May 1, 2019, Respondent's DSF stated that he was at

Redondo Elem entary School ("Redondo") for eight full hours ; h owever, the

Telogis report indicated that he was not at Redondo at all that day. Rather,

the Telogis report showed that he drove to his home, as indicated by "JF" in

5 Jones testified that either he or Hetzer printed out the Tel ogis software reports for

Respondent's work vehicle. He could not specifically recall whether he personally printed out

the reports, but he testified , credibly, that he was trained in how to read and analyze the

vehicle data in the reports , and he was auth orized to print such reports.

6 The Telogis reports admitted into the record fall within the business records exception to

hearsay rule codified in section 90.803(6), Florida Statutes. Petitioner presented the

testimony of Avram Polinsky, a records custod ian employed by Verizon Connect, who is

directly involved in the preparation and storage of the Telogis records and in making them

available in report - form for customer use. Polinsky authenticated the Telogis records and his

testimony established that the records were made at or near the time the data comprising

the records was compiled by the Telogis software system; that these records were kept in the

ordinary course of Verizon Connect's business; and that it was a regular practice of Verizon

Connect to k eep such records and make them available for use by customers. Accordingly,

the Telogis records constitute business records pursuant to section 90.803(6). See Jackson v.

State , 877 So. 2d 816, 817 (Fla. 4th DCA 2004) (computer printouts generated at the req uest

of a party in connection with litigation fall within the business records exception). Moreover,

the Telogis reports are directly relevant to the charges against Respondent, and, therefore,

are admissible in this de novo proceeding.

the report, which, as found above, was approximately 21 miles north of the

northern boundary of the MSC4 service area, and spent close to an hour

there. He also drove to unidentified locations in Miami - Dade County, to the

District 's Redland vehicle fueling station , to the MSC4 facility, and then back

to the fueling station.

29 . Respondent's DSF for May 2, 2019, stated that he worked eight hours

at the South Dade Skills Center ("SDSC"). However, the Telogis report shows

that he was only at SDSC for approximately 17 minutes. Had Respondent

c ompleted the work ordered at SDSC in that amount of time, as discussed

above, he was supposed to contact his foreman to receive another work

assignment for that day Ð which he did not do. The Telogis report also shows

that Respondent drove to his home, to un identified locations in Miami - Dade

County, to the Redland fueling station, and to the MSC4 facility.

30 . Respondent 's DSF for May 3, 2019, stated that he spent eight hours at

Miami Heights Elementary School. However, according to the Telogis report

for t hat day, he did not go to the school, but instead, went home and also

drove to the Redland fueling station and the MSC4 facility.

31 . Respondent's DSF for May 7, 2019, stated that he was at the Air Base

K - 8 Center for eight hours; however, the Telogis re port for that day shows

that he was not at that facility at any time on that date. The Telogis report

shows that he went home, went to various unknown locations in Miami - Dade

County, went to the Redland fueling station multiple times, and went to the

MSC4 facility.

32 . Respondent's DSF for May 8, 2019, stated that he was at the Peskoe

K - 8 Elementary S chool for eight hours; however, the Telogis report for that

day shows that he was not at that facility at any time on that date , but,

instead, went home, wen t to unknown locations in Miami - Dade County, went

to the Redland fueling station multiple times, and went to the MSC4 facility.

33 . Respondent's DSF for May 9, 2019, states that he worked eight hours

at the MSC4 facility. However, the Telogis report for that day showed that, in

addition to being present at the MSC4 facility for two short periods of time,

he drove 68 miles that day, to several unknown locations in Miami - Dade

County, and to the Redland fueling station five times .

34 . Respondent's DSF for M ay 13, 2019, states that he worked eight hours

at Redland Elementary School; however, the Telogis report for that day

shows that he was only present at that location for slightly over seven

minutes. The Telogis report shows that he made several stops at th e Redland

fueling station, three stops at the MSC4 facility, and three stops at unknown

locations in Miami - Dade County.

35 . Respondent's DSF for June 3, 2019, states that he worked eight hours

at Miami Heights Elementary School. However, the Telogis repo rt for that

day shows that he did not go to that school at all on that date, but, instead,

went home, drove to the Redlands fueling station several times, and drove to

unknown locations in Miami - Dade County.

36 . Respondent's DSF for June 4, 2019, states that he worked eight hours

at Redondo . However, the Telogis report for that day indicates that he did not

go to the school at all on that date, and that instead, he drove home, made

four stops at the Redland fueling station, and made two stops at unknown

l ocations in Miami - Dade County.

37 . Respondent's DSF for June 5, 2019, s tates that he worked eight hours

at South Miami Heights Elementary School. The Telogis report for that day

shows that Respondent did not go to this school at all on this date, but

ins tead went to Redondo, drove home, made four stops at the Redland fueling

station, and made two stops at the MSC4 facility.

38 . Respondent's DSF for June 6, 2019, states that he worked eight hours

at Gulfstream Elementary School; however, the Telogis repor t for that day

shows that he did not go to that school at all on that date, but instead drove

home; went to various locations in Miami - Dade County, including a busway

station; made five stops at the Redland fueling station; and made multiple

stops at the M SC4 facility.

39 . Respondent's DSF for June 10, 2019, states that he worked eight

hours at South Dade Middle School. However, the Telogis report for that day

shows that he did not go to that school, but instead made two very brief stops

at two other schoo ls, and made stops at the Redland fueling station and the

MSC4 facility.

40 . Respondent's DSF for June 11, 2019, states that he worked eight

hours at South Dade Middle School. However, the Telogis report for that day

shows that he was only present at th at school for slightly over 41 minutes.

The Telogis report shows that he went to three unknown locations in Miami -

Dade County, made five stops at the Redland fueling station, and multiple

stops at the MSC4 facility.

41 . Respondent's DSF for June 13, 2019, states that he worked eight

hours at Laura Saunders Elementary School. However, the Telogis report for

that day shows that he was at the school for slightly over 42 minutes, and

that he made stops at unknown locations in Miami - Dade County, at the

Redland fueling station, and at the MSC4 facility.

42 . Respondent's DSF for June 17, 2019, states that Respondent worked

eight hours at Homestead Elementary School. However, the Telogis report for

that day shows that he did not go to that school on that date, an d instead

stopped at McArthur South High School Ð for which no work had been

requested Ð for slightly over 26 minutes. He also made stops at an unknown

location in Miami - Dade County and two stops at the Redland fueling station.

43 . Respondent's DSF for June 1 8 , 2019, states that Respondent worked

eight hours at Redondo . However, the Telogis report for that day shows that

he did not go to that school on that date, and instead briefly stopped at South

Miami Heights Elementary and Herbert A. Ammons Middle School, although

no work had been requested f or either school. He also drove home , made five

stops at the Redland fueling station , and made two stops at the MSC4

facility .

44 . Respondent's DSF for June 19 , 2019, states that Respondent worked

eight hours at Miami Heights Elementary School . However, the Telogis

report for that day shows that he did not go to that school , or to any other

school, on that date . He made three stops at unknown locations in Miami -

Dade County and two stops at the Redland fueling station.

45 . Respondent's DSF for June 24, 2019, states that he worked eight

hours at the Medical Academy for Science and Technology. However, the

Telogis report for that day shows that he was on site at this school for slightly

over 21 minutes . The Telogis report also shows that he made a brief stop at

Redland Elementary School, despite no work order being issued for that

school that day; and that he made stops at three unknown locations in

Miami - Dade County, three stops at the Redland fueling station, and stops a t

the MSC4 facility.

46 . Respondent's DSF for June 25, 2019 , states that he worked eight

hours at Whigham Elementary School ; h owever, the Telogis report for that

day shows that he did not go to that school on that date. The Telogis report

shows that Resp ondent stopped at Redland Elementary School for slightly

over 28 minutes, notwithstanding that no work had been requested for that

school on that day. The Telogis reports also shows that he made five stops at

the Redland fueling station and two stops at un known locations in Miami -

Dade County.

47 . Respondent's DSF for June 2 6 , 2019, states that he worked eight

hours at Air Base Elementary School; however, the Telogis report for that

day shows that he did not go to that school on that date. The Telogis repo rt

also shows that he made two stops at unknown locations in Miami - Dade

County .

48 . Respondent's DSF for June 2 8 , 2019, states that he worked eight

hours at Air Base Elementary School; however, the Telogis report for that

day shows that he only was prese nt on site at that location for approximately

53 minutes . The Telogis report shows that Respondent drove home, stopped

at three unknown locations in Miami - Dade County , and made four stops at

the Redland fueling station .

49 . Respondent's DSF for July 8 , 2 019, states that he worked 6.5 hours at

Caribbean K - 8 Center ; however, the Telogis report for that day shows that he

did not go to that school on that date. The Telogis report shows that

Respondent drove home, made three stops at unknown locations in Miami -

Dade County, and three stops at the Redland fueling station.

50 . Respondent's DSF for July 9 , 2019, states that he worked eight hours

at R.R. Morton Elementary School; however, the Telogis report for that day

shows that he was at that location for sligh tly over one hour and 36 minutes,

and that he briefly stopped at Redland Elementary School, notwithstanding

that no work had been requested for that school on that day. The Telogis

report also shows that he made four stops at the Redland fueling station an d

four stops at unknown locations in Miami - Dade County.

51 . Respondent's DSF for July 1 0 , 2019 , states that he worked eight hours

at Campbell K - 8 Center ; however, the Telogis report for that day shows that

he was at this location for slightly over 39 min utes . The Telogis report shows

that Respondent drove home, made three stops at the Redland fueling station

and two stops at unknown locations in Miami - Dade County.

52 . Respondent's DSF for July 1 1 , 2019, states that he worked eight hours

at Caribbean K - 8 Center. H owever, the Telogis report for that day shows that

he was only present at that location for one hour and 36 minutes . The Telogis

report shows that Respondent made two brief stops at Miami Heights

Elementary School, notwithstanding that no work ha d been requested for

that school on that day , and that Respondent made two stops at unknown

locations in Miami - Dade County.

53 . Respondent's DSF for July 12, 2019 , states that he worked eight hours

at Redland Elementary School ; however, the Telogis repor t for that day

shows that he was present at that location for a total of three hours and 21

minutes . The Telogis report shows that Respondent stopped at the Caribbean

K - 8 Center , notwithstanding that no work had been requested for that school

on that day. The Telogis report also shows that he made four stops at the

Redland fueling station , three stops at unknown locations in Miami - Dade

County , and one stop at the MSC4 facility .

54 . As discussed above, when maintenance work is performed at a District

facili ty, the employee must fill out the DSF, describing the work and stating

the number of hours of work performed at the facility , and t he employee must

obtain the signature of the school's principal or authorized designee . The

purpose of obtaining that signat ure was to verify that the work addressed on

the DSF was performed. Here, t he persuasive evidence establishes that

Respondent falsified or forged signatures on some of the DSFs he submitted.

55 . Specifically, Respondent's DSF for May 8, 2019, contains the employee

number of James Tuning, a foreman at MSC4 , and a signature purported to

be Tuning's . Tuning testified , credibly, that the employee number on the form

was his, but was not written in his handwriting, and the signature on th e

DSF was not his . He further testified that, under any circumstances, he

would not have been authorized to sign DSFs for work performed at the

facilities serviced by employees at MSC4.

56 . Respondent's DSF s for June 17, 26, and 28, 2019, contain the

employee number of Melis sa Vi n cent i , the principal's secretary at Air Base

Elementary School , and a signature purported to be Vincent i 's . Vi n cent i

testified, credibly, that the DSFs did contain her employee number, but that

the number was not written in her handwriting, and the s ignature on the

DSFs was not hers . The evidence establishes that she did not give permission

for Respondent, or anyone else, to sign the DSF for her.

57 . Respondent's DSF for July 8, 2019, contains the employee number of

Darryl Lyles, the head custodian at Caribbean K - 8 Center , and a signature

purported to be Lyles's . Lyles testified, credibly, that the employee number

on the DSF was his, but the signature was not his. The evidence establishes

that he did not give permission for Respondent, or anyone else , to sign the

DSF for him.

Respondent's Prior Disciplinary History

58 . Respondent previously has been disciplined by Petitioner .

59 . Specifically, in 2010, Respondent was suspended from his employment

with the District for eight days without pay for havin g left work early, which

constitute d payroll fraud.

60 . In addition to being suspen ded without pay, Respondent entered into a

settlement agreement with Petitioner under which he agreed to reimburse

the District for 20 work hours.

Respondent's Defenses

6 1 . Michael Thomas, a retired supervisor who worked at MSC4 in 2019,

testified that when the Telogis software was installed in District vehicles, he

repeatedly assured the District employees at MSC4 who were using the

Telogis - equipped vehicles that the data generated by the software system

would " never be used against them in a derogatory or disciplinary manner."

62 . Thomas testified that he was authorized by his supervisor, Timothy

Jones, to tell the employees that the data gathered by Telogis for their

ve hicles would not be used for disciplinary purposes.

63 . However, Jones directly contradicted Thomas's testimony on this

point. Jones testified that he did not direct anyone , including Thomas, to tell

employees that the Telogis data would not be used for d isciplinary purposes .

Rather, he told his foremen that he was not using the data for disciplinary

purposes at that time .

64 . On questioning, Thomas acknowledged that he never had given

written assurances to employees that the Telogis data would not be use d to

support disciplinary action.

65 . Furthermore, i n any event, there is nothing in the DCSME Contract Ð

which establishes the terms and conditions of employment for those to whom

the contract applies , including Respondent Ð that provides that the Telogis

dat a would not be used as a basis of, or to support , disciplinary action against

District employees who violate School Board policies. 7

66 . Thomas also testified that the Telogis system had a 20 percent

inaccuracy rate. However, on questioning, Thomas acknowl edged that this

assertion was "anecdotal," and that he did not have any data to support this

assertion. He also acknowledged that he was aware of only one vehicle , out of

the 21 vehicles dispatched from MSC4 , that ever had any Telogis software

accuracy iss ues . He further testified that that particular vehicle was not

assigned to Respondent , and that to his knowledge , the Telogis software

installed on Respondent's vehicle did not have any accuracy issues.

67 . Respondent testified that on July 12, 2019, the d ay that Jones and

Hetzer found Respondent in his vehicle at the MSC4 facility, he was not

sleeping, but was instead waiting for rain to pass so he could pick up

materials and return to the school to complete the work.

68 . However, as found above, this tes timony was directly contradicted by

Jones, who testified that on that day, he, along with Hetzer, found

Respondent sleeping in his vehicle. Thus, Respondent's testimony on this

point was not credible.

69 . Respondent also testified that Tuning, Vincente, an d Lyles gave him

their employee numbers and gave him permission to sign the DSFs on their

behalf.

70 . Respondent's testimony was directly contradicted by the testimony of

Tuning, Vincenti, and Lyles, all of whom testified that they had not given

Responden t their employee numbers; had not signed the DSFs; and had not

authorized Respondent to do so on their behalf. Thus, Respondent's testimony

on this point was not credible.

71 . Respondent also testified that on the days he had driven home during

the work da y, he had done so in order to take medication for pain he

7 To that point, a ny verbal representations made to employees regarding the use of the

Telogis software would not, and did not, supersede the DCSME Contract.

experienced due to medical issues. 8 He testified that he had been given

permission to do so by a former supervisor , William Barroso, and that he did

not know if his subsequent supervisors were aware that Barroso had given

him such permission.

72 . In any event, Jones testified that permission to return home for

personal reasons, such as to take medication, during work hours could only

have been granted by a current supervisor. During the operative tim e period

of May 1 through July 12, 2019, Bar r oso was not Respondent's supervisor .

Therefore, in order for Respondent to have been excused from his job duties

during his work hours, he would have needed to obtain permission from his

supervisor at the time. There was no evidence presented showing that

Respondent had obtained such permission, and the most plausible inference

from Respondent's own testimony is that he did not obtain such permission.

73. Respondent also asserts that in using the Telogis record s for his

District vehicle in support of its proposed disciplinary action at issue in this

proceeding, Petitioner has singled out Respondent and treated him

disparately as compared to other employees, who have not been subjected to

discipline on the basis of Telogis records for their District vehicles.

74. However, this assertion is undercut by the credible testimony of Carlos

Diaz, Director of Professional Standards for the District, who stated that

Telogis records have, in fact, been used to impose disci pline on other District

employees.

IV. Findings of Ultimate Fact

75 . As noted above, Petitioner has charged Respondent with misconduct in

office under rule 6A - 5.056(2) for having violated specified provisions of

rule 6A - 10.081, Principles of Professional Conduct for the Education

Profession; School Board Policy 4210 , Standards of Ethical Conduct; School

8 Respondent testified that he kept his pain medication at home, rather than with him at

work, so that he would not be tempted to take more than the prescribed amount.

Board Policy 4 210.01, Code of Ethics ; and School Board Policy 8700, Anti -

Fraud . 9

76 . Whether an offense constitutes a violation of applicable statutes, rules,

and policies is a question of ultimate fact to be determined by the trier of fact

in the context of each violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla.

1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is

a factu al question); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA

1995)(whether the conduct, as found, constitutes a violation of statutes, rules,

or policies is a question of ultimate fact); Holmes v. Turlington , 480 So. 2d

150, 153 (Fla. 1st DCA 1985 )(whether there was a deviation from a standard

of conduct is not a conclusion of law, but is instead an ultimate fact) .

77 . The competent, substantial, credible, and persuasive evidence

presented in this proceeding establishes that on multiple occasions,

Respondent s ubmitted, to his supervisors, DSFs on which he had

intentionally misrepresented the description of the work that he ostensibly

had performed and the number of hours he had worked.

78 . As further discussed below, Respondent's conduct in this regard

violated School Board P olicies 4210, 4210.01, and 8700.

79 . T he competent, substantial, credible, and persuasive evidence also

establishes that on several occasions, Respondent falsified or forged

signatures of persons , without their permission, on DSFs that he submitted

to his supervisors for the purpose of representing that he had performed the

work described on the DSF and/or had worked the number of hours

represented on the DSF.

9 As further discussed below, it is determined that rules 6A - 5.056 and 6A - 10.081 do not apply

to Respondent, who is not a Florida educator and has no interaction with students in the

District .

80 . As further discussed below, Respondent's conduct in th is regard

violated School Board policies 4210, 4210 .01 , and 8700.

C ONCLUSIONS OF L AW

81 . DOAH has jurisdiction over the parties to, and subject matter of, this

proceeding, pursuant to sections 120.569 and 120.57(1).

82 . Because this case is a proceeding in which Petitioner seeks to

terminate Respondent's employment with the District , and does not involve

the loss of a license or certification, Petitioner has the burden of proving the

factual basis for termination by a preponderance of the evidence. Cisne ros v.

Sch. Bd. of Miami - Dade Cty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008);

McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

83 . Petitioner is authorized to suspend Respondent and terminate his

employment pursuant to section 10 12.22(1)(f) , Florida Statutes .

84 . Respondent is an "educational support employee" as defined in section

1012.40(1)(a), which states:

ÑEducational support employeeÒ means any person

employed by a district school system who is

employed as a teacher assista nt, 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.

85 . Section 1012.40(1)(c) states:

In the event a district school superintendent seeks

termination of an employee, the district schoo l

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 b y district school board rule

in the event there is no collective bargaining

agreement.

86 . Section 1012.40(2) authorizes the termination of educational support

employees for reasons stated in the applicable collective bargaining

agreement.

87 . Section 447 .209, Florida Statutes, regarding public employer's rights,

states:

It is the right of the public employer to determine

unilaterally the purpose of each of its constituent

agencies, set standards of services to be offered to

the public, and exercise contr ol and discretion over

its organization and operations. It is also the right

of the public employer to direct its employees, take

disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or for

other legitimate reas ons. However, the exercise of

such rights shall not preclude employees or their

representatives from raising grievances, should

decisions on the above matters have the practical

consequence of violating the terms and conditions

of any collective bargaining agreement in force or

any civil or career service regulation.

88 . The DCSME Contract is the applicable collective bargaining

agreement. Article IV, titled "Employer Rights," authorizes Petitioner to

discipline or discharge employees to which the DCSME Co ntract applies for

just and good cause.

89 . The DCSME Contract, article XI, titled "Disciplinary Action,"

section 1., authorizes Petitioner to impose disciplinary sanctions for

violations of applicable rules and policies.

90. Article XI, s ection 1 , also recognizes the principle of progressive

discipline. This section states, in pertinent part:

The Board and the Union recognize the principle of

progressive discipline. The parties agree that

disciplinary action may be consistent with the

concept of progres sive discipline when the Board

deems it appropriate, and that the degree of

discipline shall be reasonably related to the

seriousness of the offense and the employeeÔs

record.

9 1 . Article XI, s ection 3 , of the DCSME Contract establishes the right , and

ap plicable procedures , for an employee who is subject to disciplinary action

for violating applicable rules and policies to appeal the disciplinary action .

Section 3 states that "[a]ll such proceedings shall be conducted in accordance

with School Board Polic y 0133." Pursuant to this provision and School Board

Policy 0133, Respondent has availed himself of his right to challenge

Petitioner's proposed suspension and termination of his employment in this

proceeding conducted under sections 120.569 and 120.57(1).

Rule 6A - 5.056 Criteria for Suspension and Dismissal

9 2 . As stated above, the Amended Administrative Complaint charges

Respondent with having violated provisions of rule 6A - 5.056(2) .

9 3 . Rule 6A - 5.056 states, in its prefatory provision: "['] Just cause ['] means

cause that is legally sufficient. Each of the charges upon which just cause for

a dismissal action against specified school personnel may be pursued are set

forth in S ections 1012.33 and 1012.335, F.S . " Fla. Admin. Code R . 6A - 5.056

(emphasis added).

9 4 . By its plain terms, section 1012.33 applies only to instructional staff,

supervisors, and school principals. As such, i t does not apply to educational

support employees, such as Respondent.

9 5 . Additionally, by its plain terms, section 1012.315 appl ie s only to

persons who would be required to have an educator certificate or who

otherwise would be in direct contact with students. Because Respondent is an

electrician, and, therefore, is employed in a position that neither requires an

educator certifica te nor entails direct contact with students, section 1012.315

does not apply to Respondent's employment position.

9 6 . Accordingly, it is concluded that rule 6A - 5.056(2) does not apply in this

proceeding to determine whether there is just cause to suspend and

terminate Respondent from his employment as an electrician with the

District .

9 7 . For the same reason, rule 6A - 10.081, which is incorporated into

rule 6A - 5.056(2) and, by its plain terms, applies to "Florida educators" Ð

which does not include Respondent , an electrician Ð does not apply in this

proceeding to determine whether there is just cause to suspend and

terminate Respondent from his employment as an electrician with the

District.

School Board Policy 42 10

9 8 . The Amended Administrative Complaint char ges Respondent with

having violated School Board Policy 4210, titled "Standards of Ethical

Conduct." This policy states, in pertinent part 10 :

All employees are representatives of the District

and shall conduct themselves, both in their

employment and in th e community, in a manner

that will reflect credit upon themselves and the

school system.

A support staff member shall:

* * *

I. n ot use institutional privileges for personal gain

or advantage . . . ;

* * *

10 Respo ndent also was charged with violating paragraph H of this policy. That paragraph

applies to situations involving "educational matters" and direct or indirect "public

expression." Here, the evidence did not establish that Respondent's actions in falsifying

information on DSFs regarding electrical work he ostensibly performed involved either

"educational matters" or "public expression."

L. m aintain honesty in all de alings;

* * *

Q. n ot submit fraudulent information on any

documents in connection with employment[.]

9 9 . As discussed above, the competent, substantial, and persuasive

evidence establishes that on many occasions in the period between May 1 and

J uly 12, 20 1 9, Respondent submitted, to his supervisors, DSFs which

intentionally misrepresented the description of the work that he ostensibly

had performed and the number of hours he had worked . As discussed above,

t he competent, substantial, and persuasi ve evidence also establishes that on

several occasions, Respondent falsified or forged signatures of persons on

DSFs that he submitted to his supervisors for the purpose of representing

that he had performed the work described on the DSF and /or had worked the

number of hours represented on the DSF.

100 . In doing so, Respondent used his institutional privileges as a District

employee for his personal gain, in violation of School Board Policy 4210,

paragraph I.

10 1 . In doing so, Respondent also did not main tain honesty in all dealings,

in violation of School Board Policy 4210, paragraph L.

10 2 . In doing so, Respondent submitted fraudulent information on

documents in connection with his employment, in violation of School Board

Policy 4210, paragraph Q .

10 3 . For these reasons, it is concluded that Respondent violated School

Board Policy 4210.

School Board Policy 4210.01

10 4 . The Amended Administrative Complaint also charges Respondent

with having violated School Board Policy 4210.01, titled "Code of Ethics." B y

its plain terms, this policy applies to "all members of the School Board,

administrators, teachers, and all other employees of the District . " Sch. Bd.

Policy 4210.01 (emphasis added).

10 5 . This policy states, in pertinent part:

Fundamental Principles:

The fundamental principles upon which this Code

of Ethics is predicated are as follows:

* * *

D. Honesty Ï Dealing truthfully with people, being

sincere, not deceiving them or stealing from them,

not cheating nor lying;

E. Integrity Ï Standing up for their beliefs about

what is right and what is wrong and resisting

social pressure to do wrong;

* * *

I. Responsibility Ï Thinking before acting and being

accountable for their actions, paying attention to

others, and responding to their n eeds.

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the . . .

honest performance of professional duties core

guiding principles;

B. To obey local, State, and national laws, codes,

and regulations;

* * *

E. To tak e responsibility and be accountable for

his/her actions;

F. To avoid conflicts of interest . . . ;

* * *

H. To be efficient and effective in the performance

of job duties.

10 6 . As discussed above, the competent, substantial, and persuasive

evi dence establishes that during the period from May 1 to July 12, 2019,

Respondent submitted, to his supervisors, DSFs which intentionally

misrepresented the description of the work that he ostensibly had performed

and the number of hours that he had worked. As discussed above, the

competent, substantial, and persuasive evidence also establishes that on

several occasions, Respondent falsified or forged signatures of persons on

DSFs that he submitted to his supervisors for the purpose of representing

that he h ad performed the work described on the DSF and/or had worked the

number of hours represented on the DSF. In doing so, Respondent violated

School Board Policy 4210 .01 .

10 7 . Specifically, Respondent did not adhere to the fundamental ethical

principles of hon esty, integrity, and responsibility established in School

Board Policy 4201.01. His conduct, which constituted dishonesty in the

performance of his professional duties, violated Petitioner's policies;

constituted a conflict of interest between him and Peti tioner , as his employer;

and did not entail efficient and effective performance of his job duties.

10 8 . For these reasons, it is concluded that Respondent violated School

Board Policy 4210.01.

School Board Policy 8700

10 9 . The Amended Administrative Comp laint also charges Respondent

with having violated School Board Policy 8700, titled "Anti - Fraud." This

policy states, in pertinent part:

The District will not tolerate fraudulent, illegal, or

otherwise unethical activities and employees must

report them. T hese activities could result in

criminal prosecution and disciplinary action may

also be taken.

A. Scope

This policy applies to any fraud, or suspected fraud,

involving elected officials, employees, consultants,

vendors, contractors, outside agencies and

employees of such agencies, and any other parties

with a business relationship with the District.

B. Policy

Fraud and fraudulent activity is strictly prohibited.

C. Definition

Fraud is defined as the intentional, false

representation or concealment of a material fact in

order to personally benefit or induce another to act

to his/her detriment, and includes:

1. f alsifying, unauthorized altering, or forging

District documents, including but not limited to:

a. claims of payments or reimbursements, which

include, but are not limited to, submitting false

claims for travel or overtime;

* * *

c. electronic or printed files, photographic records

or audio records that are maintained by the

District, or accounts belonging to the District [.]

1 10 . As d iscussed above, the competent, substantial, and persuasive

evidence establishes that during the period from May 1 to July 12, 20 1 9,

Respondent submitted, to his supervisors, DSFs which intentionally

misrepresented the description of the work that he ostens ibly had performed

and the number of hours he had worked. As discussed above, the competent,

substantial, and persuasive evidence also establishes that on several

occasions, Respondent falsified or forged signatures of persons on DSFs that

he submitted to his supervisors for the purpose of representing that he had

performed the work described on the DSF and/or had worked the number of

hours represented on the DSF. In doing so, Respondent violated School Board

Policy 8700.

11 1 . Specifically, his conduct, wh ich entailed the intentional false

representation of material facts on his DSFs in connection with his

employment and for his personal benefit, was fraudulent and unethical .

11 2 . For these reasons, it is concluded that Respondent violated School

Board Pol icy 8700.

Progressive Discipline

113. As discussed above, Respondent previously has been disciplined for

having left work early, which constituted payroll fraud.

114. Here, the evidence establishes that Respondent, by misrepresenting

the description of wo rk that he ostensibly had performed and the number of

hours he had worked , engaged in conduct similar to that for which he

previously was disciplined, in that both matters giving rise to discipline

involved him not performing his assigned work duties and/o r misrepresenting

the number of hours that he worked.

115. Respondent's conduct, which has been established by the

preponderance of the competent substantial evidence in this proceeding,

constitutes fraud under School Board Policy 8700, and calls into que stion his

honesty and integrity.

11 6 . Given the seriousness of the School Board policy violations that

Respondent committed by engaging in the conduct that is the subject of this

proceeding, and given that he previously has been subjected to discipline by

Petitioner for a serious , similar offense , it is concluded that, pursuant to the

DCSME C Contract progressive discipline provision, the appropriate

disciplinary sanction is to suspend Respondent without pay and terminate

his employment with the District.

Conclusion

11 7 . In sum, it is concluded that Respondent violated School Board

policies 4210, 4210.01, and 8700.

11 8 . Pursuant to these policies, and consistent with article s IV and XI of

the DCSME Contract , just and good cause exists to suspend Responden t

without pay and terminate his employment as an electrician with the

District .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Miami - Dade County School Board, enter a

Final Order suspendi ng Respondent without pay and terminating his

employment.

D ONE A ND E NTERED this 22nd day of November , 2021 , in Tallahassee,

Leon County, Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2021 .

C OPIES F URNISHED :

Anastasios Kamoutsas, General Counsel Teri Guttman Valdes, Esquire

Department of Education Teri Guttman Valdes LLC

Turlington Building , Suite 1244 1501 Venera Avenue , Suite 300

325 West Gaines Street M iami, Florida 33146

Tallahassee, Florida 32399 - 0400

Christopher J. La Piano, Esquire

Alberto M. Carvalho, Superintendent Miami - Dade County School Board

Miami - Dade County School Board 1450 Northeast 2nd Avenue , Suite 430

1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132

Miami, Florida 33132

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.