STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1609

)

LEROY BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, on August 26, 1993, in Largo, Florida.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

For Respondent: Leroy Brown, pro se

12048 135th Avenue North Largo, Florida 34640

STATEMENT OF THE ISSUES

Whether or not Respondent falsified his application for employment warranting his dismissal from employment by the School Board.

PRELIMINARY STATEMENT

By letter dated March 1, 1993, Petitioner advised Respondent that effective March 1, 1993 at the School Board meeting on March 24, 1993, he was suspended with pay pending a recommendation that the School Board sustain his suspension and dismissal on March 25, 1993 for falsifying his application for employment with Petitioner. Respondent was advised in the March 1, 1993 letter that he could contest that recommendation by requesting a formal hearing, pursuant to Chapter 120, Florida Statutes. Respondent timely requested a formal hearing; and on March 23, 1993, Petitioner forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing pursuant to Chapter 120, Florida Statutes. Following responses from the parties, on May 25, 1993, this matter was set for hearing on August 26, 1993 and was heard as scheduled.

At the hearing, Petitioner presented the testimony of its Superintendent,

1. Howard Hinesley, and James M. Barker, an Administrator in Petitioner's Office of Professional Standards. Petitioner's exhibits 1-12 were offered and received into evidence at the hearing.

   Respondent testified on his own behalf and cross-examined Petitioner's witnesses.

   
   

   Petitioner filed a Proposed Recommended Order, which was considered and is substantially adopted in this Recommended Order.

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent has been employed by Petitioner as a bus driver since 1989.

      
      

   2. When Respondent filed his application for employment with Petitioner, he failed to divulge the following arrests:

      
      

      1983 - Aggravated battery.

      1984 - Disorderly conduct and battery. 1985 - Petit larceny.

      1985 - Resisting arrest without violence. 1987 - Possession of marijuana.

      
      

   3. During early 1993, the St. Petersburg Times, a local newspaper, conducted an investigation of Petitioner's employees which included compiling arrest records of all employees. Included within that compilation and investigation were the above-referenced arrests of Respondent which were not noted (by Respondent) on his employment application.

      
      

   4. Respondent does not contest the fact that he was arrested and found guilty of all the above-referenced arrests. Based on his failure to disclose those arrests, he was dismissed on March 25, 1993 for falsifying his employment application. However, he maintains that one other employee with a similar employment record, Debbie Hillman, was reassigned by Petitioner and maintained her employment, with the result that he was treated differently than other employees.

      
      

   5. Administrator Barker conducts investigations of employee conduct and at times makes recommendations respecting the employment and continued employment of Petitioner's employees. Mr. Barker recommended that Respondent be terminated when Respondent's arrest records came to his attention. Relying on the number of arrests and the nature of one arrest and conviction, particularly the offense relating to possession of marijuana during 1987, Mr. Barker determined that Respondent would not have been hired as a bus driver. This was so based upon the potential that students would be injured while Respondent drove the school bus if he did so while under the influence of drugs.

      
      

   6. Mr. Barker was familiar with the Debbie Hillman reassignment. Specifically, employee Hillman approached one of Petitioner's supervisory employees, Dr. Crosby, and advised him of a drug problem that she had and requested treatment. Ms. Hillman was enrolled in a drug treatment program where she was subjected to random and monthly urinalysis. Ms. Hillman was allowed to transfer to another position after her completion of rehabilitation because she came forth with the information and moreover, she did not falsify arrest records

      on her employment application. Ms. Hillman's case is factually distinguishable from Respondent's case and, therefore, does not show that Respondent was treated differently or more harshly than other employees.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

      
      

   8. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

      
      

   9. The authority of Petitioner is derived from Chapter 230, Florida Statutes.

      
      

   10. Petitioner has implemented a disciplinary policy which is codified in Rule 6GX-52.7.12, which rule references "falsification of documents". Rule 6GX-

52.7.12 of the School Board's rules authorizes the Petitioner to dismiss an employee who, like Respondent, falsifies his application for employment. This is particularly true where, as here, Respondent failed to divulge several arrests on his application for employment. Based upon the number of arrests and one type of arrest that he experienced in 1987, a drug offense, it is likely that Petitioner would not have hired Respondent as a bus driver.

RECOMMENDATION

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

Petitioner enter a Final Order sustaining its dismissal of Respondent as a bus driver with the Pinellas County School Board.

DONE AND ENTERED this 2nd day of November, 1993, in Tallahassee, Florida.

COPIES FURNISHED:

Keith B. Martin, Esq. Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993.

Leroy Brown

12048 135th Avenue North Largo, Florida 34640

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. J. Howard Hinesley Superintendent

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-001609

Orders for Case No: 93-001609