STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4012

)

WILLIAM WELLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on November 22, 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: J. Robert McCormack, Esquire

Wiggins & McCormack

3040 Gulf-to-Bay Boulevard, Suite 100

Clearwater, Florida 34619 STATEMENT OF THE ISSUE

Whether or not Respondent improperly converted School Board property to his own use warranting disciplinary action.

PRELIMINARY STATEMENT

By letter dated July 13, 1993, Petitioner, the School Board of Pinellas County, Florida, requested the assignment of a Hearing Officer to conduct a final hearing involving a dispute concerning the suspension of Respondent, William Wells, a non-instructional employee. This request was triggered by a letter dated July 8, 1993, from Respondent's counsel alleging, in pertinent part, that Respondent was wrongfully accused of theft of School Board property and was thereafter coerced into signing a stipulation regarding an allegation of theft under the threat of criminal prosecution. Respondent therefore requested a formal hearing challenging the proposed three-day suspension without pay.

Following responses from the parties, on September 15, 1993, the matter was noticed for hearing for November 22, 1993, and was heard as scheduled.

At the hearing, Petitioner introduced the testimony of Arnold D. Harris, a Night Foreman II; Roosevelt Hall, a head plant operator assigned to Palm Harbor Elementary School; Peter W. Wells and George Wells Jr., Respondent's nephews and James Barker, Petitioner's administrator assigned to the Office of Professional Standards. Petitioner introduced four exhibits which were received in evidence at the hearing. Respondent's counsel filed a motion to dismiss which was taken under advisement following the conclusion of Petitioner's case. Respondent's motion to dismiss is denied as it is determined that Petitioner introduced a prima facie case.

Respondent presented the testimony of Sally L. Hoefling, a teacher employed at Palm Harbor Elementary School; Don Stock, a self-employed landscaping, lawn services operator and received herein as an expert in landscaping and lawn services; Rose Kane, a fourth grade teacher assigned to Palm Harbor Elementary School; and instructors Tina R. Stanbaugh and Louise Walsingham, also teachers at Palm Harbor Elementary School. Respondent also presented the testimony of his father, George Wells, Sr., and he (Respondent) testified on his own behalf. Petitioner presented two rebuttal witnesses, Brenda Leasure, principal at Palm Harbor Elementary School and Robert Franz, a police officer and investigator employed by Petitioner. Respondent introduced six exhibits which were received in evidence.

The parties filed proposed recommended orders which were considered. Proposed findings of fact which are not adopted herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant findings of fact.

FINDINGS OF FACT

1. Respondent, William Wells, is an employee of Petitioner, Pinellas County School Board, and has been employed as a plant operator since February 1989. During May 1993, Respondent was assigned to Palm Harbor Elementary School.

   
   

2. Respondent's immediate supervisor was Arnold Harris. Harris' immediate supervisor was Roosevelt Hall.

   
   

3. On or about May 12, 1993, Respondent asked his supervisor, Harris, a night foreman, if he could take some mulch for use at his residence. Harris told Respondent that he saw no problem and gave his approval.

   
   

4. The mulch, some of which Respondent took, was donated and delivered to Palm Harbor by Boen's Tree Trimming Service.

   
   

5. Mulch similar to that which Respondent was given permission to take from Petitioner was available to the public at no charge at a location approximately two miles from the school.

   
   

6. On Saturday, May 15, 1993, Respondent accompanied by his nephews, Peter and George, whose ages are 11 and 12 years old, respectively, took approximately two "gurneys" of mulch. A gurney is represented to be a five-gallon container. Hall observed Respondent removing the mulch from the school on that day but he was unaware that Harris had given Respondent permission to take the mulch.

7. On May 16, 1993, Hall claims to have seen Respondent exiting the school's parking lot for the second time, however his vision was obscured. Hall did not clearly see the driver of the vehicle although he believed it to be Respondent. Respondent admits that he took mulch from the school on May 15, 1993. However, he denies that he returned to the school on the following day to take more mulch.

   
   

8. Also on that same day, May 16, 1993, Rose Kane, while on campus, observed a young boy and a man loading mulch into a vehicle, however she was unfamiliar with the individuals loading the mulch into the truck and testified that it was not Respondent. It is more likely than not, that Respondent did not take mulch from the school on May 16. This is especially so in view of the fact that Respondent freely admitted taking the mulch on May 15.

   
   

9. On Monday, May 17, 1993, Respondent "acted as if it was business as usual" when Hall saw him. Respondent made no mention of the mulch nor was the matter discussed.

   
   

10. Hall reported Respondent as having taken mulch from the school which triggered an investigation by Petitioner. During the investigation, Petitioner requested that Respondent take a polygraph exam to clear him of the charges. Respondent agreed to do so and to pay for the cost of having the test administered. The initial polygraph results were inconclusive and Respondent, again at his own expense, took a subsequent polygraph test. These results indicated that Respondent evidenced no deception when he answered questions put by the polygrapher.

    
    

11. On June 22, 1993, Investigator Franz, Office of Professional Standards with Petitioner, delivered to Respondent a stipulation of agreement between Petitioner and Respondent with the result that the Respondent accepted a three- day suspension without pay. Although Respondent executed the stipulation, he has challenged same and requested a hearing contesting the Petitioner's recommendation that he be suspended for three days without pay.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The Petitioner has the burden of proof in this non-instructional employee dismissal hearing and the standard is proof by a preponderance of the evidence. See, Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990); accord, Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990).

    
    

14. Petitioner has the authority to suspend and/or dismiss its employees, including non-instructional employees, pursuant to Section 230.23(5)(f), Florida Statutes (1991).

    
    

15. Petitioner has the authority to determine policies and programs deemed necessary by it for the efficient operation of the school system pursuant to Section 230.22(1), Florida Statutes.

16. The School Board has adopted a policy regarding work performance and discharge of support service personnel which is codified in Section 6GX52-7.12, Policy Manual of Pinellas County School Board, January 1991 edition. It provides, inter alia, that theft of School Board property is a basis for disciplinary action including suspension without pay.

    
    

17. Petitioner failed to establish, by a preponderance of the evidence, that Respondent committed theft of School Board property as alleged. Here, the evidence shows that Respondent was given permission to take mulch from the school. This is the position he maintained throughout the investigation and during the hearing. He has been forthright throughout the investigation even to the point of taking a polygraph exam at his own expense. It is unlikely that Respondent would jeopardize his job or subject his nephews to possible criminal charges over mulch which was available for free within a short distance from the school.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order rescinding its proposed suspension of Respondent, without pay, and expunge all derogratory references about this incident from his personnel file.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of January 1994.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4012

Rulings on Petitioner's proposed findings of fact:

Paragraph 4, rejected, contrary to the greater weight of evidence, Paragraphs 3, 4, and 8, Recommended Order.

Paragraph 7, rejected, unnecessary.

Paragraphs 8 and 9, rejected, contrary to the greater weight of evidence, Paragraphs 7 and 8, Recommended Order.

Paragraph 10, rejected, irrelevant and unnecessary.

Paragraph 11, last sentence adopted as modified, Paragraph 6, Recommended Order. The remainder of Paragraph 11 is rejected as being irrelevant and not probative of the issues posed.

Paragraph 12, rejected, irrelevant and unnecessary.

Paragraph 14, adopted as modified, Paragraphs 10 and 11, Recommended Order.

Paragraphs 16 and 17, adopted and incorporated in the Preliminary Statement as being background information.

Rulings on Respondent's proposed findings of fact:

Paragraph 5, adopted as modified, Paragraph 5, Recommended Order.

Paragraph 8, rejected as being a recitation of testimony and not proposed findings of fact.

Paragraph 17, adopted as modified, Paragraph 10, Recommended Order.

COPIES FURNISHED:

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

Largo, Florida 34649-2942

J. Robert McCormack, Esquire Wiggins & McCormack

3040 Gulf-to-Bay Boulevard, Suite 100

Clearwater, Florida 34619

J. Howard Hinesley, Ed.D., Superintendent, Pinellas County

School Board

Post Office Box 2942 Largo, Florida 34649-2942

Douglas L. "Tim" Jamerson Commissioner of Education The Capitol

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 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: 93-004012

Orders for Case No: 93-004012