21-002339 Leon County School Board vs. Joseph Burgess Status: Closed Recommended Order on Tuesday, January 18, 2022.

Summary: Petitioner proved the allegations in the Administrative Complaint by a preponderance of the evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L EON C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 21 - 2339

J OSEPH B URGESS ,

Respondent .

/

R ECOMMENDED O RDER

Pursua nt to notice, a final hearing was conducted on October 7 and 8 ,

2021, and November 5, 2021, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly designated Administrative Law Judge of the Division of

Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Scott J. Seagle, Esquire

Coppins Monroe, P.A.

1319 Thomaswood Drive

Tallahassee, Florida 323 08

For Respondent: Stephen G. Webster, Esquire

Louis Jean - Baptiste Jr. , Esquire

W EBSTER B APTISTE , P LLC

1785 Thomasville Road

Tallahassee, Florida 3230 3

S TATEMENT OF T HE I SSUE S

Whether Respondent committed acts amounting to Ñmisconduct in officeÒ

and/or Ñwillful neglect of dutyÒ as alleged in the Administrative Complaint;

and, if so, what discip line should be imposed.

P RELIMINARY S TATEMENT

The Leon County School Board (the ÑSchool BoardÒ or ÑPetitionerÒ),

through Rocky Hanna, its Superintendent (Ñthe SuperintendentÒ or

ÑSuperintendent HannaÒ) , issued an Administrative Complain t on July 28,

2021, making the following alleg ations against Joseph Burgess, the principal

of Chiles High School ( Ñ Principal Burgess Ò ) :

22. For the 2020 - 2021 school year, [Principal]

Burgess executed personnel action forms

authorizing approximately twenty - two (22)

teachers to receive extra pay for hourly - as - needed

positions. Unusually, the positions were not funded

by the schoolÔs staffing plan, but rather from

Advanced Placement (ÑAPÒ) project funds. However,

because [Principal] Burgess did not submit a ÑNon -

staffing Alloca tion Notice for School - Level BudgetsÒ

form designed to trigger a review of such

expenditures, BurgessÔs use of the funds for the

positions was not noticed by the District at the

time.

23. In late June 2021, the Superintendent learned

that [Principal] Bur gess was using AP funds to pay

for the hourly - as - needed teaching positions and,

more importantly, that the hourly payroll records

[Principal] Burgess was submitting to the District

were false.

24. [Principal] Burgess used the pretext of ÑhourlyÒ

positions and unregulated AP funds to create a

number of additional/non - bargained teacher

supplements. Although appearing as ÑhourlyÒ

positions in the DistrictÔs records, and although

[Principal] Burgess routinely signed payroll records

authorizing payments to the employees for specific

allegedly worked hours, the submitted hours were

entirely fictional and unrelated to the actual hours

worked by the employees during the submitted pay

period.

25. The specific hours [Principal] Burgess

submitted to the District for payment were

fabricated in that they were the result of a

mathematical calculation, and not based upon the

actual time worked by the employees during the

pay period. Indeed, most of the teachers benefiting

from the payments did not track or record their

ho urs in any way. Rather, the teachers uniformly

believed that the payments were ÑsupplementsÒ

(i.e., a flat amount for a specific duty) and did not

know or understand that they were ÑhourlyÒ

employees at all.

26. [Principal] BurgessÔs Executive Secretary,

Melanie Richardson, confirms that payment of the

employees based upon a mathematical calculation

was BurgessÔs express direction and intention.

Richardson created an Excel Spreadsheet for the

purpose of meeting this direction. A copy of the

Spreadsheet is in the DistrictÔs possession.

27. RichardsonÔs Spreadsheet took an arbitrary

amount set by Burgess for each position, divided it

by the employeeÔs established hourly - rate, and then

divided the result over roughly eight to ten pay -

periods.

* * *

30. [Pri ncipal] Burgess knew about RichardsonÔs

Spreadsheet and knew that the employees were not

tracking their hourly time or submitting

timesheets. [Principal] Burgess knew that the

hours he was submitting for payment were false in

that they were the result of a mathematical

calculation and not based upon hours actually

worked in the pay period. Even if he did not, by

signing and authorizing the hours for payment,

[Principal] Burgess falsely represented that he had

reviewed employee timesheets for accuracy prior to

submission to the District when, in truth, no

timesheets even existed. [Principal] BurgessÔs

approval of the payroll submissions was otherwise

a willful or reckless failure of his duty to approve

employee pay as [Principal] Burgess approved such

pay wit hout undertaking any action to confirm

their accuracy.

* * *

34. [Principal] Burgess knew that the District

would not Ï and could not under the [Leon

Classroom Teachers Association] Contract Ï

approve the payment of additional/non - bargained

supplements. [Principal] Burgess knew or

suspected that any attempt to pay teachers an

additional supplement with AP monies [ 1 ] would

have been rejected by the District. [Principal]

BurgessÔs scheme to pay non - bargained

supplements through ÑhourlyÒ positions was

designe d to avoid detection by the District. District

records confirm that the scheme Ï including

falsified hourly pay applications Ï had occurred for

years and started as early as 2014.

Accordingly, Petitioner alleged that Principal Burgess committed

Ñmisconduc t in officeÒ and a Ñwillful neglect of duty.Ò The Administrative

Complaint further alleged that Ñ[j]ust cause exists to discipline [Principal

Burgess] with a two - week suspension without pay.Ò

Principal Burgess disputed the aforementioned allegations, an d the

School Board referred this matter to DOAH on July 28, 2021. The

undersigned issued a Notice on August 13, 2021, scheduling the final hearing

for October 7 and 8, 2021.

On August 18, 2021, Petitioner filed ÑPetitionerÔs First Motion for

Protective O rder and Motion in LimineÒ seeking to preclude Principal

Burgess from: (a) conducting discovery or offering testimony concerning the

quality, adequacy, thoroughness, or progress of the preliminary investigation;

1 Due to a lack of clarity regarding permissible uses for AP funds, Superintend ent Hanna did

not argue in his Proposed Recommended Order that Principal Burgess misused AP funds.

(b) deposing, questioning, or calling the Su perintendentÔs chosen counsel as a

witness; (c) conducting discovery or offering testimony about the motives of

the Superintendent; and (d) conducting discovery or offering testimony about

Principal Burgess Ôs various virtues and achievements as a citizen a nd school

administrator.

The undersigned issued an Order on September 3, 2021, stating that

[w]ith regard to the requests designated in the

above paragraphs as (a) and (c), [Principal Burgess]

has failed to demonstrate how that information is

relevant to the allegations in [Superintenden t

Hanna] Ôs Administrative Complaint. For instance,

[Principal Burgess] has not cited any case law from

a Florida jurisdiction standing for the proposition

that [Superintendent Hanna] Ôs Administrative

Complaint would be inv alidated if the preceding

investigation had been inadequate or if the

SuperintendentÔs motivation for issuing the

Administrative Complaint was improper.

See § 90.402, Fla. Stat. (2021)(providing that Ñ[a]ll

relevant evidence is admissible, except as provid ed

by law.Ò). [Principal Burgess] has also failed to

demonstrate how discovery related to those subject

matters is Ñreasonably calculated to lead to the

discovery of admissible evidence.Ò See Fla. R. Civ.

P. 1.280(b)(1).

As for deposing, questioning, or calling the

SuperintendentÔs chosen counsel as a witness,

[Principal Burgess] has failed to demonstrate why

those actions are necessary. See Iacono v. Santa

Elena Holdings, LLC , 271 So. 3d 28 (Fla. 3d DCA

2018)(explaining that deposing opposing counsel

sho uld be limited to circumstances Ñwhere the

party seeking to take the deposition has shown

that[:] (1) no other means exist to obtain the

information [other] than to depose opposing

counsel; (2) the information sought is relevant and

nonprivileged; and (3) the information is crucial to

the preparation of the case.Ò).

To the extent that [Principal Burgess] plans to offer

testimony about [Principal Burgess]Ôs various

virtues and achievements as a citizen and school

administrator, [Principal Burgess] may test ify for

no more than 20 minutes during the final hearing

scheduled for October 7 and 8, 2021, about his

background, employment history, and professional

achievements. However, evidence regarding

[Principal Burgess] Ôs purported good character or

reputation shall be excluded unless

[Superintendent Hanna] presents evidence

attacking [Principal Burgess]Ó s character.

See generally General Telephone Co. v. Wallace ,

417 So. 2d 1022, 1024 (Fla. 2d DCA 1982)(holding

that Ñ[t]he opinion elicited from Dr. Wasylik

conc erning the plaintiffÔs truth and veracity, and

the argument based on that opinion, violate two

rules of law. The first rule is that evidence of good

character or reputation is not relevant and is

inadmissible in a civil action where the reputation

of the p arty has not first been attacked by evidence

of bad character.Ò).

The final hearing was convened as scheduled but not completed on

October 8, 2021. Accordingly, the final hearing was continued to November 5,

2021 , and completed that day.

In addition to p resenting the testimony of Superintendent Hanna , the

School Board called the following witnesses: Mike Eto, Sherri Kawagoye,

Kate Strickland, Katherine Quick, Melanie Richardson, Kaydi Blackstock,

Deana McAllister, Deena Howell, and Lori Nevin. PetitionerÔ s Exhibits 1

through 32 were accepted into evidence.

Principal Burgess testified on his own behalf and called the following

witnesses: Randy Pridgeon, David Pettis, Grace Bigelow, Aaron Clark, Naomi

Coughlin, Principal Scotty Crowe, Principal Demetria Cle mons, Amy Sherry -

Marsh, Margaret Crutchfield, and Michele Prescot. RespondentÔs Exhibits 1

through 8 8 were accepted into evidence.

The six - volume final hearing Transcript was filed on December 2, 2021,

and both parties filed timely proposed recommended or ders that have been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the f ollowing Findings of Fact are made:

Facts Regarding Teacher Compensation in Leon County

1. The School Board is the constitutional entity authorized to operate,

control, and supervise the free public schools within the Leon County School

District (Ñthe Dist rictÒ) . See Art. IX, § 4(b), Fla. Const. , and § § 1001.30 and

1001.32, Fla. Stat. 2 The School Board is specifically empowered to discipline

District employees, including suspension of employment. § 1012.22(1)(a), (f),

Fla. Stat .

2. Superintendent Hanna is the Superintendent of Leon County Schools

and is responsible for directing the day - to - day work of the District Ôs

employees. He has express authority to recommend employee discipline to

the School Board. § § 1012.27(5) and 1012.33(6)(b), Fla. Stat .

3. Teach ers in the Leon County School System can be paid via three

different methods: the salary associated with their instructional duties , one

or more supplements, or hourly work unrelated to their instructional duties.

4. When performing the instructional dutie s for which they receive a

salary , teachers do not track their time via timesheets or by punching a time

2 All statutory references shall be to the 2021 version of the Florida Statutes unless indicated

otherwise.

clock. Teachers do not receive overtime pay for the instructional duties

associated with their salaries.

5. A supplement is an opportunity for teach ers to receive a flat rate or a

flat amount of money for providing an additional service. Negotiations

between the School Board and the Leon County Teachers Association (Ñthe

LCTAÒ) determine what supplements are available. From 2017 through 2020,

the cont ract between the School Board and the LCTA (Ñthe ContractÒ)

provided for supplements such as the following: band director, assistant band

director, academic coaches, newspaper sponsor, yearbook sponsor, athletic

director, cheerleading coach , and football c oach.

6. The amount of pay associated with a supplement is derived from the

base teacher salary of $30,500. For example, the band director supplement is

15 percent . As a result, that supplement pays $4, 575.00 , i.e., 15 percent of

$30,500 . If the band dire ctor work is divided between two or more teachers,

then that $4,575.00 would be divided among them. In general, a teacher can

receive no more than three supplements.

7. A t eacher cannot receive a supplement that did not result from

negotiations between th e School Board and the LCTA. In o ther words, a

principal cannot create a supplement that does not appear in the C ontract .

However, principals do have some discretion in allocating supplement funds.

For example, the academic coach supplement could be used t o compensate a

teacher for providing support to gifted students.

8. When performing work associated with a supplement, teachers do not

track their time via timesheets or by punching a time clock.

9. Section 21.02(A)2. of the Contract provides that teachers can be paid on

an hourly basis for Ñadditional non - instructional responsibilities.Ò

The Contract states that

[e]mployees may agree to be assigned non -

instructional responsibilities that extend beyond

the standard workday. The time assigned for such

respo nsibilities shall be determined by the site

administrator or the District and the employee

shall be paid for the additional assigned time at

their regular hourly rate.

10. School Board P rocedure # 6510A is entitled ÑTimesheets/Clocking - In

and Clocking - Ou tÒ and applies to Ñsubstitute teachers, extra - duty , [ 3 ] and non -

instructional employees.Ò With regard to extra - duty pay, P rocedure # 6510A

mandates that Ñ[e]ach employee must record all additional hours on a

separate timesheet including name, time - in and ti me - out, hours worked, etc.Ò

Under a section entitled ÑClocking - In and Clocking - Out , Ò 4 P rocedure # 6510A

provides that Ñ[e]mployees exempt from overtime pay under the [Fair Labor

Standards Act] are not required to clock - in/clock - out at their work site, unle ss

employed in an additional position where clocking - in and clocking - out is

necessary to record hours/time for payment.Ò Procedure # 6510A also

provides that Ñ[i]t is the timekeeping system approverÔs responsibility to

review records for accuracy, approve information entered by the employee,

and electronically submit the time and leave records by the published payroll

and leave accounting deadlines.Ò

11. This extra - duty, hourly pay comes into play if a principal has work to

be done and the budget for supple mental duties has been exhausted. In those

instances, a principal has the discretion to create an hourly position and task

a particular individual to perform work that will be compensated by general

funding.

12. As explained by Deana McAl l ister, the Distr ictÔs Assistant

Superintendent for Human Resources, Labor, and Employee Relations , extra

duty, hourly work is

3 The DistrictÔs payroll director interprets the term Ñextra dutyÒ to include instructional

employees doing hourly work.

4 The School BoardÔs payroll director testified that time sheets are utilized for tracking hours

worked even though Procedure # 6510A refers to Ñclocking - in and clocking - out.Ò She also

testified that the School BoardÔs payroll department us es the terms Ñclocking - in and out,Ò

Ñsigning - in and out,Ò Ñtime cards,Ò and Ñtime sheetsÒ interchangeably.

in addition to what your current job description is.

So, if youÔre teaching English, youÔre not going to

have an extra - duty hourly position as an English

teacher. So, you cannot be paid for work that you

are already being paid for. You cannot be paid

extra - duty monies for work that youÔre doing

during the school day, nor Ï or during your hours of

Ï of employment with the District, nor can you be

pai d extra duty for work that you are being paid via

supplement.

13. As a result, if a band director holds an after - school band rehearsal,

then he or she will not be paid on an hourly basis for that work because it is

covered by a supplement.

14. P rincipals in Leon County can create extra - duty, hourly positions and

fund them through appropriate means. However, a principal must obtain the

District Ôs approval for the position, and the District must also approve of the

funding source used to pay for the positio n.

15. Teachers doing extra - duty, hourly work are paid at their hourly rate,

and they must keep track of their time. According to Ms. McAl l ister, Ñ[t]hey

have to do the work they are assigned and they have to report their hours.

ThereÔs no way for us to pa y them if we donÔt know the number of hours

theyÔve worked, if itÔs in addition to their current salaried position.Ò

16. The time records maintained by teachers doing extra - duty, hourly

work are submitted to their schoolÔs bookkeeper or whoever is tasked with

submitting payroll to the District. However, the schoolÔs principal is

ultimately responsible for approving and/or verifying the time submitted by

teachers doing extra - duty, hourly work.

17. Scotty Crowe is currently the Principal of Gilchrist Elemen tary School,

and he has worked for the District for 30 years in various other capacities ,

such as dean, assistant principal, and assistant superintendent. Principal

Crowe described the process of paying teachers doing extra - duty, hourly work

as follows:

Q: But the teacher still has to track their time in

some way and tell the bookkeeper how many hours

they worked and what days they worked, correct?

A: It does Ï it does have a Ï the date and it does

have the hours on that Ï that sheet.

Q: Okay. They have t o Ï thatÔs the only way to pay

a teacher in an hourly as - needed position is for the

teacher to track their time and tell someone how Ï

when and how long they worked, correct?

A: ThatÔs how it is Ï thatÔs how it is treated,

recorded, and submitted.

* * *

Q: Teachers in hourly positions donÔt punch a time

card into a clock - in - and - clock - out system.

A: ThatÔs correct.

Q: But, they do and must record their time on a

time sheet.

A: ThereÔs a time sheet.

Q: O kay. And the recording of the hours on the

time s heet is the only way to know how many hours

to pay them for that pay period, correct?

A: ThatÔs Ï that provides the information and data

that the bookkeeper would, the, put into the Ï to

the Ï work for the process.

* * *

Q: LetÔs say that you had $10,00 0 that you had

budgeted or were given a budget for, an hourly as -

needed position, correct?

* * *

Q: And letÔs say that teacher turns in hours each

month, up until the $10,000 is exhausted, correct?

* * *

A: IÔm with you.

Q: TheyÔve earned the $10,000 that youÔve budgeted

by turning in the time sheets to get paid, correct?

A: Correct.

Q: If they did not turn in enough hours, letÔs say

your COVID czar Ï COVID cases have started to

decrease and not as much time is required Ï letÔs

say they only turned i n half the number of hours

that they expected, would they still get the full

$10,000 or would they only get half -- would they

only get paid for the hours they turned in?

A: From Ï from my experience, I may have

budgeted ÑXÒ amount of dollars Ï itÔs almos t like a

draw Ï you can draw down up to a certain amount

and that Ï that particular person for that

engagement Ï itÔs almost like billable hours, I

guess, is the analogy, where they can Ï thereÔs

gonna be [a] certain amount Ï itÔs gonna Ï certain

number of hours they can submit but not go over.

* * *

Q: So, they have to submit the hours.

A: Correct.

Q: A nd theyÔll get paid for the hours they

submitted.

A: Correct.

Q: And if they donÔt submit enough hours to claim

the full budget, they donÔt get paid t he full budget.

A: Then they wouldnÔt Ï they wouldnÔt get paid . . .

* * *

Q: So, you would agree with me that, for a teacher

to be paid Ï when the system youÔre describing for

me, the teachers filling out the time sheets and

turning them in Ï thatÔs the same, as far as you

know, District - wide, correct?

A: Yeah.

Q: Every school does that.

A: Yes.

18. Michelle Prescott has spent the last 28 years working for the District

in various capacities such as teacher, assistant principal, principal, and

Distr ict administrator. She described the process of paying teachers doing

extra - duty, hourly work as follows:

Q: But if youÔre going to pay them for hourly as -

needed work, then you need to know how many

hours they worked, correct?

A: Yes.

Q: Okay. And thatÔ s the only way you can pay them

accurately for the hours they worked.

A: Right.

* * *

A: Now, if theyÔre sick, then they donÔt take that

time.

Q: And that was going to be my question. You can

give them Ï you know, itÔs going to be an hour a day

for the next week or so, but they actually have to

show up and work that hour to get paid.

A: Correct.

Q: If they get sick and donÔt work three days, they

donÔt get paid those three days?

A: Correct.

Q: So, itÔs not a guarantee that theyÔre going to get

the f ull amount just because you planned them a

schedule out at the start?

A: Correct.

* * *

Q: And if weÔre Ï if weÔre paying teachers hourly

and theyÔre not tracking their time and arenÔt

telling anybody how long they worked, that would

not be an appropria te way to pay them, correct?

A: Correct.

Q: Okay. Let Ï let me just understand, real quick,

the Ï the role of the secretary or bookkeeper and

the principal. You are the final step in that process.

You approve the payroll and submit it to the

District for payment, correct?

A: Yes, I approve the payroll - -

* * *

Q: The Ï the bookkeeper or the secretary will do the

clerical work of gathering up all the time sheets or

time cards or whatever needs to be done and get

that entered into the system, correct?

A: Yes.

Q: And then you will approve that, what she has

entered Ï your job is to sign off --- whether itÔs a

physical sheet to sign or electronic Ï you approve it

for payment. YouÔre -- you do the approval, correct?

A: Yeah, I do the final approval.

Q: Okay. And the bookkeeper or the secretary

doesnÔt have the authority to approve time sheets

for payment. They enter the information, but they

canÔt approve it for payment.

A: No.

Q: Okay. So, letÔs go back to that term. The

timekeeping system approver Ï you would agree

that the principal, you, would be the approver, and

they would be the collector or enterer of the

information.

* * *

A: Yes, I am approv Ï I am approving it in

Skyward, but sheÔs entering it.

Q: Okay. And, I guess, I understand that you donÔt

always go back and do a little bit of research on

these things, but your signature, when you approve

those, has some meaning, right; that you have Ï

that you are Ï you are approving these and taking

responsibility for these being accurate.

A: Yes. Yes, weÔre respons Ï made it very clear,

weÔre responsible for everything, especially with

our signature.

Q: The buck stops with you.

A: (Nodding head affirmatively.)

Facts Specific to the Instant Case

19. Principal Burgess has worked for the District s ince 1999. He began his

employment with the District as a teacher at Swift Creek Middle School.

During the 2003 - 04 school year, he was named Swift Creek Middle SchoolÔs

teacher of the year. In 2005, Principal Burgess became the assistant principal

at Chile s High School and held that position for two years. He then became

the transitional principal at Springwood Elementary and the permanent

principal the next year. Over the next three years, Principal Burgess served

as the principal at Swift Creek Middle Sch ool. During the summer of 2012,

Principal Burgess became the principal of Chiles High School. 5

20. Melanie Richardson was an executive secretary at Chiles High School

from February of 1998 through April 19, 2021, and was responsible for

collecting payrol l information, such as hours worked, and entering that

information into the schoolÔs payroll system. Unless he i s absent, Principal

Burgess i s the only Chiles High School employee authorized to approve th at

payroll information. Therefore, Principal Burgess is the site administrator

and timekeeping system approver for Chiles High School.

21. Beginning with the 2014 - 15 school year, Principal Burgess and

Ms. Richardson implemented a system in which teachers performed extra -

duty, hourly work without tracking th eir time. 6 For example,

Principal Burgess would tell Ms. Richardson that a particular teacher would

be earning a fixed amount of money for doing work unrelated to any

supplement negotiated between the LCTA and the Board . Ms. Richardson

would then divide th at fixed amount by that teacherÔs hourly rate and thus

determine how many hours it would take for that teacher to earn the fixed

amount identified by Principal Burgess. Ms. Richardson would then take that

gross number of hours and divide it a s evenly as po ssible over the months of

the school year. The resulting monthly hourly totals would be entered into

Chiles High SchoolÔs payroll system and reported to the District as the

amount of time that teacher spent performing the extra - duty, hourly work.

As a resu lt, a teacher performing extra - duty, hourly work would earn a

predetermined amount each month regardless of how much time they

5 Superintendent Hanna described Principal BurgessÔs work performance as being

Ñwonderf ul.Ò He testified that Chiles High School is a challenging school with a challenging

group of parents. With the exception of the allegations at issue in the instant case,

Superintendent Hanna testified that Principal Burgess has done a Ñgood job.Ò

Superin tendent Hanna also testified that he has known Principal Burgess to be an honest

and ethical man.

6 This process did not apply to all of the teachers at Chiles High School who performed extra -

duty, hourly work.

actually spent performing that extra - duty, hourly work , and Ms. Richardson

was unaware of whether the hours she reported to the D istrict were an

accurate reflection of how much time that teacher actually spent performing

that extra - duty, hourly work . Many of t he teachers performing the extra -

duty, hourly work thought they were being paid via a supplement.

22. At the beginning of e ach school year, Ms. Richardson would prepare a

spreadsheet detailing the information described above , and she offered the

following testimony pertaining to whether Mr. Burgess was aware of what

she was doing:

Q: The spreadsheet weÔve been looking at is f or the

2020 - 21 school year, correct?

A: Yes.

Q: But that is not the first time you used a

mathematical calculation to derive the number of

hours to report for employees.

A: No, I always used a mathematical calculation.

Q: Can you tell me when you first started to report

hours based upon the mathematical calculation?

A: The first time I was told that I was gonna put

this person in an hourly position for so much time,

for so much money.

Q: And who was that who told you that the first

time?

A: Mr. Burge ss.

Q: You had not used this method, this way of

calculating hours for employees, for any other

principal in the past?

A: No.

* * *

Q: The mathematical calculation weÔre talking

about Ï did you enter the hours into the payroll

system based on this math ematical calculation?

A: Y es.

Q: Did you do that because that is the way you

decided to do it or because thatÔs what you were

directed to do?

A: It was de Ï we Ð administration and I Ï we

discussed the best way to do it because teachers

had different hour ly rates. And, to make it even, I

was Ï I told Mr. Burgess, after he gave me the

amounts, I would divide it by their hourly rate and

then divide it evenly through the year.

Q: And what was his response to you doing that?

A: Good. Fine.

Q: So, he - -

A : Make it happen. Do it.

* * *

Q: Was Mr. Burgess aware of the Exhibit 3

spreadsheet?

A: I Ï I had showed them to him; so, yes.

Q: Okay. So, not only was he aware, he had seen it?

A: Yes.

Q: Did he know what it was?

A: I explained what it was and h e, to my

knowledge, knew what I was doing, knew what it

was.

* * *

Q: Did you discuss with him how this spreadsheet

worked?

A: Yes.

Q: Did you discuss with Mr. Burgess how the hours

that you were calculating were being derived?

A: Corr Ï yes.

Q: Did he express to you that he had any confusion

about what you were doing or how you were

calculating these hours?

A: No.

Q: And based on your discussions with him, you

told him Ï did you tell him that this is what you

would enter into the system for the em ployees?

A: Yes.

Q: Would you have employed the mathematical

system for determining hours for employees

without Mr. BurgessÔ direction and approval to do

that?

A: No.

23. For the 2020 - 21 school year, Principal Burgess executed forms

authorizing 22 te achers to work in hourly - as - needed positions at Chiles High

School. 7 The teache r s filling those positions did not know that they

7 Superintendent Hanna testified that the p ayments to teachers performing extra - duty,

hourly work during the 2020 - 21 school year , without keeping time records, totaled between

$100,000 and $150,000.

were hourly employees. Instead, they believed that they were receiving

suppl e ments. 8

24. In addition to making it impossib le to know if teachers performing

extra - duty, hourly work were being compensated for the actual number of

hours they worked , t he system implemented by Principal Burgess and

Ms. Richardson had other shortcomings. For example, Mike Eto is the

athletic direct or at Chiles High School. In addition to his teaching salary and

supplements, Mr. Eto has performed extra - duty, hourly work , such as being

on - call to respond to after - hour emergencies at the school. However, he was

erroneously paid for his extra - duty, hour ly work while he was on extended

medical leave from January 25, 2021, through April 1, 2021. Another

example occurred in 2019 when Principal Burgess had approved Edra Taylor

receiving $5,000 for extra - duty, hourly work. After the school year started,

M s . T aylor asked that the remainder of that $5,000 by paid to her by

November 15, 2019, in one lump sum rather than in monthly amounts over

8 Principal Burgess was using AP money to fund these extra - duty, hourly positions that he

treated a s supplements. The Administrative Complaint alleged that practice was improper,

but that allegation was ultimately dropped due to a lack of clarity as to how AP funds could

be used. Superintendent Hanna offered the following testimony regarding Principal

B urgessÔ s use of AP funds:

So, we have Ï and Ï and we have, as a practice, as a School

District, used those AP Ï Advanced Placement dollars to hire

additional instructional personnel in addition to training for

Advanced Placement teachers, for workshops fo r Advanced

Placement teachers, for those types of things to advance the Ï

to help support and enhance the Advanced Placement

program. Mr. Burgess was using those Advanced Placement

dollars to support these supplements, including Ï the football

coach [Ós] $1 0,000 supplement was coming out of Advanced

Placement funds. Now, is there a specific policy that speaks to

whatÔs allowable Ï allowed and not allowed with Advanced

Placement dollars? Maybe; maybe not. Did Mr. Burgess or

should Mr. Burgess, as a high schoo l principal, have known

that it was not appropriate to use those funds to pay his

football coach and the Chiles Cares lady and all those other

people with the funds? He absolutely should have known.

the rest of the school year. By approving that request, Mr. Burgess

authorized an advance for hourly work that had yet to be performed.

25. Principal Burgess gave the following testimony when questioned about

the shortcomings discussed above:

Q: The teachers Ï if they didnÔt know they were

hourly employees, they thought they were getting

supplements because theyÔre not hourly employees,

they donÔt know they are, theyÔre not tracking their

time, how are you ever supposed to pay them

accurately? Now, what this does, of course, is just

pays them the full amount, no matter what they do

or donÔt do. How did you hope or expect it would

work so that they could [be] paid accurately? What

did you expect to happen for these teachers to be

paid accurately for their work?

A: What do you mean ÑaccuratelyÒ? Can you please

explain?

Q: Sure. That means they get paid for the actual

numb er of hours that they work, up to the

maximum that you set.

A: Well, first of all, the teachers did get paid for the

hours that they worked. And they had a maximum

budget, which they knew because, if you go past

that, you break the budget. I, as the site

administrator, have to keep a budget.

Q: They didnÔt track their time, sir. How do you

know how many hours they worked?

A: I donÔt.

Q: And thatÔs exactly the point: You donÔt know Ï

nobody knows, right?

A: No, sir.

Q: All right. So, how can you pay t hem accurately?

Let me go back to my question: How did you expect

Ï when you gave this Ï these maximum numbers

for these employees, how did you expect that they

would be paid accurately? What was the process

that was supposed to happen, in your mind, to

m ake sure that these employees were paid

accurately; meaning, pay for the actual number of

hours they worked?

A: In my mind, they were paid for the work that

they did. That was how it worked.

Q: Ah. So, they get paid for the job getting

complete, regardle ss of how many hours they

actually spent doing it.

A: ThatÔs how teachers have been doing it for years.

They work more hours than what we pay them.

Q: So, that sounds very much like a supplement,

right; that youÔre going to get paid a flat amount.

You do nÔt have [to] track your hours. You get this

amount, $10,000 or whatever else it is. You donÔt

have to turn in your time, but just get the job done.

That was your expectation.

A: My expectation was that they got the work done.

26. Employees in the Dist rictÔs payroll department had questions about

Chiles High SchoolÔs extra - duty pay for May of 2021 . In response to their

request for backup documentation, they received the spreadsheet that

Ms. Richardson had created to keep track of the extra - duty, hourly pay for

the 2020 - 21 school year. 9 The payroll department brought this situation to

Superintendent Hanna Ôs attention during the first week of June 2021 , and he

met with Ms. Richardson to gain an understanding of how teachers at Chiles

9 Ms. Richardson has been working in the School BoardÔs H uman R esource O ffice since

April 19, 2021.

High School were bein g compensat ed for extra - duty, hourly pay. 10

Ms. Richardson described how teachers were being paid for doing extra - duty

hourly work as if they were being paid for a supplement. 11

Ultimate Findings

27. Principal Burgess had no ill intent when he and Ms. Ri chardson

established a system in which certain teachers were paid for extra - duty,

hourly work without recording their time. There is no evidence that he used

that system for an improper purpose , such as to favor certain teachers over

others.

28. With the exception of when Mr. Eto was paid for performing extra -

duty, hourly work while he was on medical leave, there was no evidence that

the work at issue was not being done. The problem was that the teachers

performing extra - duty, hourly work were not keeping track of their time.

Ms. McAllister testified that if the teachers at issue had been Ñtrue hourly

employees and this had been set up as hourly positions and they were not flat

amounts and time had been tracked and we paid them appropriately, it

would have been fine.Ò

10 Superintendent Hanna acknowledged that there was a lack oversight by the District. He

testified that new safeguards have been put in place: ÑNow the principals have to go to their

immediate supervisor to get permission to put someone hourly as - needed, to explain exactly

what that person is going to do, explain exactly how many hours theyÔre going to be working,

ex Ð explain exactly what you need from that position so it will stop all of this nonsense.Ò

11 Wi th regard to consequences resulting from the discovery of how teachers were paid for

extra - duty, hourly work at Chiles High School, Superintendent Hanna testified that auditors

Ñare gonna chew us up on this.Ò He also described fairness among the schools un der his

purview: Ñbasically, [Principal Burgess] has the $250,000 supplement budget thatÔs approved

that has been bargained - for an d signed off by the union. And he was using an additional

hundred thousand dollars plus to create other Ï other supplements th at he felt like he

needed to create that were not bargained - for and that are Ï and that other schools in our

District may not be able to Ï to support. So, it comes down to equity and a lot of other things

Ï issues because I Ï there are no other high school s that are going to pay their football coach

an additional $10,000. The y donÔt have Ï they donÔt have that money. And then I Ï then I

have a problem. Well, why does this coach get an additional $10,000; why didnÔt that coach

get $10,000. Then Ï and then I can go to Lincoln Ï Lincoln has even more AP mone y that Ï

than Chiles. Well, [if] heÔs gonna do it; then, IÔll pay my coach an additional $40,000 a year.

And thatÔs not the way our system is set up.

29. The totality of the evidence indicates that Principal Burgess thought

that nothing improper was happening so long as the work at issue was being

done. However, the instant case is an example of how the ends do not always

justify the mean s.

30. Principal Burgess had a system enabling him to dole out unauthorized

supplements without any oversight from the District. As explained by

Superintendent Hanna, that took Ñall of the collective bargaining weÔve done

with the union and how we compen sate people completely out and itÔs at the

sole discretion of the principal.Ò While there was no evidence that the system

established by Principal Burgess and Ms. Richardson resulted in any

widespread abuses, Principal Burgess created an environment in whi ch

widespread abuses could have occurred. Teachers could have been paid for

work they did not perform, and an unscrupulous principal could have used

these unauthorized supplements to play favorites among his or her

subordinates.

31. If the consequences d iscussed above were not readily apparent to

Principal Burgess, then the simple fact that he was knowingly approving the

submission of fabricated time records to the District should have given him

pause.

32. While Principal Burgess had no ill intent, hi s approval of fabricated

time records amounts to: (a) a failure on his part to maintain honesty in all

professional dealings; (b) the falsification of District financial documents;

(c) a failure on his part to deal truthfully and sincerely with people; and (d) a

reckless failure to fulfill his duty as Chile High SchoolÔs timekeeping system

approver.

C ONCLUSIONS OF L AW

33. DOAH h as jurisdiction over the subject matter and parties in this

case, pursuant to section s 1012.33(6) , 120.569 , and 120.57(1), Florid a

Statutes.

34. The School Board seeks to suspend Principal Burgess for two weeks

without pay. As a result, the School Board h as the burden of proving the

allegations set forth in the Administrative Complaint by a preponderance of

the evidence, as opposed to the more stringent standard of clear and

convincing evidence applicable to the loss of a license or certification.

C ropsey v. Sch. Bd. of Manatee C n ty. , 19 So. 3d 351 (Fla. 2d DCA 2009), rev.

denied , 29 So. 3d 1118 (Fla. 2010); Cisne ros v. Sch. Bd. of Miami - Dade C n ty. ,

990 So. 2d 1179 (Fla. 3d DCA 2008).

35 . The preponderance of the evidence standard requires proof by Ñthe

greater weight of the evidence,Ò BlackÔs Law Dictionary 1201 (7th ed. 199 9 ),

or evidence that Ñmore likely than notÒ tends to prove a certain proposition.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

36. The Administrative Complaint seeks to discipline Principal Burgess

based on Ñmisconduct in officeÒ and Ñwillful neglect of duty.Ò § 1012.33(6)(b),

Fla. Stat. (2020)(providi ng that Ñ[a]ny member of the district administrative

or supervisory staff, including any principal . . . , may be suspended or

dismissed at any time during the term of the contract; however, the charges

against him or her must be based on immorality, misco nduct in office,

incompetency, gross insubordination, willful neglect of duty, drunkenness, or

being convicted or found guilty of, or entering a plea of guilty, regardless of

adjudication of guilt, [to] any crime involving moral turpitude, as these terms

a re defined by rule of the State Board of Education.Ò).

37. With regard to the School Board Ôs misconduct allegation, Florida

Administrative Code Rule 6A - 5.056 (2) defines Ñmisconduct in office,Ò in

pertinent part, as: (a) Ñ[a] violation of the Principles of Professional Conduct

for the Education Profession in Florida as adopted in Rule 6A - 10.081, F.A.C.;Ò

(b) a violation of rules adopted by the School Board; and (c) Ñ[b]ehavior that

reduces the teacherÔs ability or his or her colleaguesÔ ability to effectivel y

perform duties.Ò

38. Florida Administrative Code Rule 6A - 10.081 sets forth the ÑPrinciples

of Professional Conduct for the Education Profession in Florida.Ò Subsection

(2)(c) identifies the obligations a Florida educator owes to the education

profession and mandates, in pertinent part, that an educator Ñ[s]hall

maintain honesty in all professional dealingsÒ and Ñ[s]hall not submit

fraudulent information on any document in connection with professional

activities.Ò

39. The School Board has an ÑAnti - Fraud Ò policy stating that Ñ[f]raud and

fraudulent activity are strictly prohibited.Ò The policy defines Ñfraud,Ò in

pertinent party, as falsifying Ñclaims for paymentÒ or Ñany other District

financial document.Ò

40. The School Board also has a Code of Ethics which lists ÑhonestyÒ as a

fundamental principle upon which the Code of Ethics is predicated. The Code

of Ethics defines ÑhonestyÒ as Ñ[d]ealing truthfully with people, being sincere,

not deceiving them nor stealing from them, not cheating or lying. Anoth er

provision within the Code of Ethics requires each School Board employee Ñ[t]o

be efficient and effective in the performance of job duties.Ò

41. The S chool Board has proven by a preponderance of the evidence that

Principal Burgess committed Ñmisconduct i n officeÒ as defined above. The

preponderance of the evidence demonstrates that Principal Burgess was

aware of the system that Ms. Richardson devised to accomplish his goal of

paying particular employees a predetermined amount for extra - duty, hourly

work. As a result, Principal Burgess knew that the hours that were being

reported to the District for the extra - duty , hourly work in question did not

reflect the actual amount of time spent doing that work.

42. Furthermore, as the timekeeping system approver fo r Chiles High

School , it was Principal BurgessÔs responsibility under Procedure # 6510A Ñto

review records for accuracy, approve information entered by the employee,

and electronically submit the time and leave records by the published payroll

and leave ac counting deadlines.Ò However, Principal Burgess approved

payroll information that he knew was inaccurate.

43. Accordingly, Principal Burgess: (a) failed to Ñmaintain honesty in all

professional dealingsÒ as required by rule 6A - 10.081; (b) falsified a Dist rict

financial document contrary to the School BoardÔs Anti - Fraud Policy; and

(c) did not deal truthfully with people as required by the School BoardÔs Code

of Ethics.

44. As for the S chool Board Ôs willful neglect of duty allegation, rule 6A -

5.056(5) defi nes Ñwillful neglect of dutyÒ as an Ñintentional or reckless failure

to carry out required duties.Ò As discussed above, Principal Burgess is the

timekeeping system approver for Chiles High School, and he was responsible

for reviewing records for accuracy. Because the preponderance of the evidence

demonstrates that Principal Burgess knew that the time records in question

did not reflect the hours actually worked, the School Board proved that

Principal Burgess violated rule 6A - 5.056(5).

45. Principal Burgess raises three arguments in his p roposed

r ecommended o rder: (a) he did not violate a clear policy; (b) the School Board

did not prove that Principal Burgess received training on any relevant policy ;

and that (c) Principal Burgess w as not on notice of any rel evant policy.

46. Those arguments are unavailing. Procedure # 6510A is not a model of

clarity given its references to clocking - in and clocking - out. However, it is

clear enough to put a reader on notice that an employee performing extra -

duty, hourly work sh ould be keeping track of his or her time. Moreover, in

light of the fact that timesheets were being submitted for the extra - duty,

hourly work at issue in this proceeding, it is nonsensical for one to argue that

he or she was unaware that those timesheets n eeded to reflect the hours that

were actually worked.

47. As for Principal BurgessÔs argument that he was unaware of

Procedure # 6510A or any other relevant authorities governing District

employees, it is well - established that such defenses are meritless.

See generally American Home Assur. Co. v. Plaza Materials Corp., 908 So. 2d

360, 375 (Fla. 2005) (Cantero, concurring in part and dissenting in

part)(ÑMany cases have recognized the maxim as old as the law, itself, that

ignorance of the law is no excuse.Ò) (citations omitted) . Moreover, arguing

that the District failed to put one on notice of a governing procedure or policy

is in the nature of an affirmative defense. However, Principal Burgess has

not satisfied his burden of proof on that point. See Ellingh am v. DepÔt of

Child. & Fam. Servs. , 896 So. 2d 926, 927 (Fla. 1 st DCA 2005)(stating that

Ñ[t]he party seeking to assert the affirmative defense has the burden of proof

as to that defense.Ò). He has not argued that Procedure # 6510A and any

other relevant authorities were unknown to District employees or kept from

them in some manner.

48. As for the appropriate penalty, section 1012.33(6)(a) provides that a

principal can be suspended or dismissed due to Ñmisconduct in officeÒ and/or

Ñwillful neglect of duty .Ò The School Board has proposed suspending Principal

Burgess for two weeks without pay. As noted above, Principal Burgess

otherwise has an outstanding record as a District employee. Also, Principal

Burgess had no ill will when he and Ms. Richardson create d the system at

issue in the instant case. Nonetheless , a two - week suspension without pay is

reasonable under the circumstances.

R ECOMMENDATION

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

R ECOMMENDED that the Leon County School Board enter a f inal o rder

suspending Joseph Burgess for two weeks without pay.

D ONE A ND E NTERED this 1 8 th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

Division of Administrative Hearings

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of January , 2022 .

C OPIES F URNISHED :

Scott J. Seagle, Esquire Stephen G. Webster, Esquire

Coppins Monroe, P.A. W EBSTER B APTISTE , P LLC

1319 Thom aswood Drive 1785 Thomasville Road

Tallahassee, Florida 323 08 Tallahassee, Florida 3230 3

Rocky Hanna, Superintendent Anastasios Kamoutsas, General Counsel

Leon County School Board Department of Education

2757 West Pensacola Street Turlington Building, Suite 1244

Tallahassee, Florida 32304 325 W est Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Education Louis Jean - Baptiste Jr., Esquire

Department of Education W EBSTER B APTISTE , P LLC

Turlington Building , Suite 1514 1785 Thomasville Road

325 W est Gaines Street Tallahassee, Florida 3230 3

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exception s 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.