STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, ) FLORIDA (WILLIAM McFATTER, )

SUPERINTEDENT), )

)

Petitioner, )

)

vs. ) CASE NO. 82-027

)

LEWIS S. WALTON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pompano Beach, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 14, 1982. By order entered March 17, 1982, this cause was consolidated for hearing with Ralph D. Turlington, as Commissioner of Education v. Lewis Simpson Walton, No. 82-128. The parties were represented by counsel:

For Petitioner: Charles T. Whitelock, Esquire

1244 Southeast Third Avenue Fort Lauderdale, Florida 33316

For Respondent: Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

By petition for dismissal from Broward County School System dated December 9, 1981, petitioner alleged that respondent, holder of an annual contract of employment as a classroom teacher at Pompano Beach High School, is guilty of "immorality in that on or about June 13, 1981, [he] had in [his] possession approximately eight (8) marijuana plants (live and planted), five (5) marijuana plants (dead and dried), and several dried marijuana leaves, which conduct violates Florida Statutes 231.36(6), 231.09(2) and State Board of Education Administrative Rules 6B-4.09, 6B-4.07(4[)], and 6B-5.10(4)."

These allegations were denied and the matter was referred for hearing to the Division of Administrative Hearings. On March 16, 1982, when the final hearing was originally scheduled to take place, respondent filed a motion for summary dismissal of administrative complaint on the grounds that the court order sealing the record of the prosecution that arose out of the events of June 13, 1981, operated to bar the complaint. The motion was denied, but a continuance was granted to allow respondent to urge this view in the courts.

Thereafter counsel for petitioner filed a "MOTION FOR REHEARING/MOTION FOR RECONSIDERATION/MOTION TO UNSEAL RECORD" in County Court for Hendry County seeking to set aside the record sealing order entered by that court in Case No.

M81-303H on March 12, 1982, but the court declined to unseal the records, by order entered May 19, 1982; and no appeal was taken.

Respondent sought to enjoin the final hearing on account of the sealing order in proceedings instituted in the Circuit Court for the Seventeenth Circuit but that court found venue to be improper and never reached the merits of the claim. Respondent appealed the change of venue order, lost the appeal, and presented his claim to a county judge in Leon County who sat as a judge of the Circuit Court for the Second Circuit, in the absence of a circuit judge, and entered an order denying injunctive relief. Lewis S. Walton v. Department of Education, etc. et al., Case No. 82-2351 (Fla. 2d Cir.; Sept. 14, 1982).

After the final hearing, time was twice extended for the filing of respondent's proposed recommended order.

ISSUES

Among the issues in this case are: Whether a court order sealing records of a criminal prosecution bars action by a school board against its employee on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as an employee of petitioner had been reduced? Whether petitioner can discipline an employee for "immorality" occurring before employment began?

Whether petitioner can discipline an employee for "immorality" now that Section 231.36, Florida Statutes (1981) has been amended to delete "immorality" as such as grounds for dismissal or suspension?

FINDINGS OF FACT

1. After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood.

   
   

   THE ARREST

   
   

2. The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants.

   
   

3. The only other bedroom in the apartment seemed to be unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981.

   
   

4. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among

   some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers.

   
   

   EFFECTIVENESS

   
   

5. In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began.

   
   

6. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981.

   
   

   PROPOSED FINDINGS CONSIDERED

   
   

7. Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner has the burden to show, by a preponderance of the evidence, that respondent committed the acts alleged in the petition for dismissal and that dismissal is justified as a result. Although respondent's teacher's certificate is not at stake in these proceedings, his public employment is; and petitioner's burden of proof is commensurate with the gravity of the matter. See Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

   
   

   CHRISTIAN VIRTUE

   
   

9. By citing Rule 6B-4.07, Florida Administrative Code, which provides that teachers "should honor contracts," and Section 231.09(2), Florida Statutes (1981), which lists among the duties of instructional personnel that they:

   
   

   [l]abor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue,

   
   

   petitioner seems to take the position that respondent somehow breached his contract of employment by conduct that occurred before he entered into the contract. Petitioner has cited no authority for this unlikely proposition; and Section 231.09, Florida Statutes (1981) has been amended to delete the language of former Section 231.09(2), Florida Statutes (1981), quoted above, effective July 1, 1982. Ch. 82-242, 8, 28, 32, Laws of Florida (1982).

   IMMORALITY AS SUCH BEFORE EMPLOYMENT NO GROUNDS FOR DISMISSAL

   
   

10. At the time the petition for dismissal was filed, Section 231.36(6), Florida Statutes (1981) provided that a school teacher could "be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office,. . .gross insubordination. . .[or] willful neglect of duty. . ." Section 231.36(6), Florida Statutes (1981). Of these statutory grounds, only "immorality" has been pleaded. Immorality for purposes of the statute was defined and explicated by Rule 6B-4.09, Florida Administrative Code.

    
    

11. After respondent began working for petitioner in the fall of 1981, the statute governing suspensions and dismissals of teachers was amended, effective July 1, 1982, and "immorality" as such was no longer listed among the grounds for action against a teacher on annual contract. Ch. 82-242, 15 and 33, Laws of Florida (1982). The existing statute does, however authorize suspension or dismissal of a teacher on annual contract for "just cause." Section 231.36(1)(a) and (6)(a), Florida Statutes (1982 Supp.). Assuming arguendo that there is still a statutory predicate for the petition filed against respondent, see, e.g., Department of Professional Regulation v. Humberto Munoz, Case No. 82-

    513 (DOAH Recommended Order, December 3, 1982), and putting to one side the issue whether "just cause" was pleaded, petitioner is still without authority to discharge respondent, whether under existing law or under the prior statute, for immorality as such occurring before his employment began. The cases holding that a license may not be revoked on account of acts occurring before licensure require such a conclusion. Also Laney v. Holbrook, 8 So.2d 465 (Fla. 1942) (reh. den.).

    
    

    THE SEALING ORDER

    
    

12. Respondent has consistently contended that petitioner cannot take disciplinary action against him on account of the events or circumstances of June 13, 1981, without violating the court order sealing all records of his arrest and criminal prosecution for those same events and circumstances. This order provided, in part:

    
    

    The Clerk of Court, Hendry County, Florida; the Clewiston Police Department, Clewiston, Florida; and the Florida Department of Law Enforcement, Tallahassee, Florida, are directed to seal all records relating to this cause in their possession. No information shall be utilized by any agency or disseminated to any agency or person except as authorized by Chapter 943, Florida Statutes.

    Each of the agencies herein involved shall notify and forward copies of this Order to all agencies or persons to whom they have disseminated records information relating to this case. (emphasis supplied)

    
    

    In proving allegations of the administrative complaint, petitioner relied on the testimony of two of the arresting officers to establish the circumstances of the arrest.

13. Officer Meskin admitted, on cross-examination (T. 68-70), that he had refreshed his recollection of what occurred on June 13, 1981, by reading, among other things, an unsigned typewritten draft (typed by a police clerk) of a police report which, although drafted by the witness himself, became or was the basis for a "record" within the meaning of the expunction statute. Section 943.045(7), Florida Statutes (1981). Similarly, Officer Deese testified that he reviewed "his" copy of a typewritten report, prepared by a police typist on a police form and made part of police records in June of 1981 (T. 85-90), before he testified against respondent in the present proceedings.

    
    

14. But for the arresting officers' testimony as to what was present in respondent's apartment when they entered and as to what transpired after their entry, petitioner would not have established the essential allegations of the petition. Once these officers entered his apartment, respondent was under arrest, since he was not free to leave. See Orozco v. Texas, 394 U.S. 324 (1960). The arrest reports must necessarily have covered everything that the arresting officers observed when they entered the apartment and thought significant.

    
    

15. Judge Parsons' sealing order was entered pursuant to Rule 3.692, Florida Rules of Criminal procedure, and Section 943.045, Florida Statutes (1981), which authorize criminal history record expunction or sealing in certain limited circumstances. The statute provides, in the event of sealing or expunction:

    
    

    1. The effect of expunction or sealing of criminal history records under this section or other provisions of law. . .shall be as follows:

       1. When all criminal history records, including the records maintained by the Department of Law Enforcement and the courts, have been expunged, the subject of such records shall be restored, in the full and unreserved contemplation of the law, to the status occupied before the arrest, indictment, information, or judicial proceedings covered by the expunged record.

       2. When all criminal history records, except for records retained under seal by the courts or the Department of Law Enforcement, have

          been expunged, the subject of such records may lawfully deny or fail to acknowledge the events covered by the expunged or sealed

          records, except in the following circumstances:

          1. When the person who is the subject of the record is a candidate for employment with a criminal justice agency;

          2. When the person who is the subject of the record is a defendant in a criminal prosecution;

          3. When the person who is the subject of the record subsequently petitions for relief under this section; or

          4. When the person who is the subject of the record is a candidate for admission to the Florida Bar.

          The courts or the Department of Law Enforcement may refer to and disseminate information contained in sealed records in any of these circumstances. Subject to the exceptions stated herein, no person as to whom an expunction or sealing has been accomplished shall be held thereafter under any provision of law of this state to be guilty of perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge expunged or sealed criminal history records.

          
          

    2. An order or request to expunge or seal a criminal history record shall be deemed an order or request to seek the expunction or sealing of such record by all other agencies and persons known to have received it. Section 943.058, Florida Statutes (1981). (emphasis supplied)

       
       

       Under this statute, an individual never licensed to teach in Florida could gain licensure and employment as a teacher for the first time without disclosing a criminal prosecution or the underlying events even if asked under oath. He has the legal right to "deny. . .the events." Section 943.058(6)(b), Florida Statutes (1981). The legislature has entrusted the judiciary with the authority and discretion to choose which criminal defendants shall have this special chance for rehabilitation.

       
       

16. Not only did the County Court of Hendry County make an initial determination that society's interests would best be served by removing all traces of respondent's encounter with the criminal law, the court also declined to unseal the records at petitioner's request when apprised specifically of petitioner's efforts to take action against respondent. In their MOTION FOR RE- HEARING/MOTION FOR RECONSIDERATION/MOTION TO UNSEAL RECORD, petitioner and the Education Practices Commission pleaded

    
    

    1. The Court, in its [Sealing] Order of March 12, 1982, made a specific finding ". . .that the record of arrest and

       prosecution in this cause no longer serves a useful purpose. . ."

       
       

    2. Petitioner avers that said finding is inaccurate, inasmuch as the State of Florida, [and the] Broward County School Board are in need of the criminal arrest and prosecution records, including the seized evidence, relative to [those proceedings]. . .

    
    

    The court's decision to keep the records sealed was not appealed and must, therefore, be fully complied with.

    
    

17. Among the papers sealed by court order are the arrest reports used by the arresting officers to refresh their recollection before testifying to the circumstances surrounding respondent's arrest at the final hearing in this case.

    There are important differences between using documents for this purpose and simply offering them in evidence, see Garrett v. Morris Kirschman & Co., 336 So.2d 566 (Fla. 1976) (reh. den.), but the hearing officer is now persuaded that proving an arrest and the surrounding circumstances in this fashion is inconsistent with Judge Parson's order and recommends that petitioner take no action of any kind based on the arresting officers' testimony.

    
    

    OTHER EVIDENCE ALONE INSUFFICIENT

    
    

18. In addition to reconstructing the arrest after consulting the records, the police officers testified that they observed a plant, from off the apartment grounds, through respondent's window the day before they effected the arrest. They thought the plant was marijuana and secured a search warrant on that basis, which reflects a judicial determination that probable cause existed to believe that the plant was marijuana. Less evidence is needed to show probable cause than is needed to meet the preponderance of the evidence standard. In these proceedings no plant nor any scientific testimony was offered as evidence.

Until the plant was seized, field tests could not be performed. Until a chemist or other qualified scientist analyzed the plant, its identity could not be conclusively established. Testimony based on a glimpse from a distance through a window, even by highly trained policemen, does not suffice to meet petitioner's burden of proof here. See Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the petition for dismissal filed against respondent.

DONE AND ENTERED this 25th day of January, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1983.

COPIES FURNISHED:

Charles T. Whitelock, Esquire 1244 Southeast Third Street Ft. Lauderdale, Florida 33316

Richard H. Frank, Esquire Mark F. Kelly

Law Offices of Frank & Kelly, P.A.

341 Plant Avenue Tampa, Florida 33606

William T. McFatter Superintendent of Schools The School Board of Broward

County, Florida

1320 Southwest Fourth Street Fort Lauderdale, Florida 33312

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE DISTRICT SCHOOL BOARD OF BROWARD COUNTY FLORIDA

SCHOOL BOARD OF BROWARD COUNTY, FLORIDA (WILLIAM T. McFATTER,

Superintendent),

Petitioner,

vs. DOCKET NO. 82-027

LEWIS S. WALTON,

Respondent.

/

FINAL ORDER

THIS CAUSE coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA at its regular meeting on May 5, 1983, upon the Hearing Officer's Recommended Order consisting of Findings of Fact, Conclusions of Law and Recommendation recommending that the Petition is dismissed.

IT IS THEREUPON ORDERED by THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA

after a review of the complete record and hearing oral argument of counsel:

1. That THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA denies the Motion to Strike the Petitioner's Exceptions to the Recommended Order.

   
   

2. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA accepts the Findings of Fact as contained in the Recommended Order of the Hearing Officer.

   
   

3. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA rejects the Conclusions of Law as contained in the Recommended Order of the Hearing Officer.

4. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA accepts the Exceptions to the Recommended Order concerning the Conclusions of Law as filed on behalf of the Petitioner. These include but are not limited to the following:

   
   

   1. That, as a matter of law, Florida Statutes, s943.058 (198) does not preclude the testimonial recollection of an event, but only the introduction of the sealed records. The statutory process seals only the records, and not a witness' memory;

      
      

   2. A party's introduction and use of sealed records is permissible pursuant to Florida Statutes, 943.058(3)(1981); however, the use thereof constitutes a waiver of that statutory right;

      
      

   3. Florida Statutes, requires a teacher to provide a proper role model through precept and example.

      
      

5. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA rejects the Hearing Officer's Recommendation contained in the Recommended Order and hereby dismisses the Respondent, LEWIS S. WALTON, from employment as a member of the instructional staff of The School Board of Broward County, Florida effective December 17, 1982.

DONE and ORDERED this 16th day of June, 1983.

Marie H. Harrington, Chairperson The School Board of Broward County, Florida

June 16th, 1983

COPIES FURNISHED:

Robert F. McKee Charles Whitelock David Holder

Docket for Case No: 82-000027

Orders for Case No: 82-000027