STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SEMINOLE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6394

)

JOHN R. SUTTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 9, 1994, in Sanford, Florida.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A.

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848

For Respondent: Thomas C. Greene, Esquire

Post Office Box 695

Sanford, Florida 32772-0695 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent, a non-instructional employee of the Petitioner, should be terminated from employment for possession of marijuana at his residence.

PRELIMINARY STATEMENT

In a letter dated September 17, 1993, Superintendent Paul J. Hagerty informed Respondent, John Sutton, that his employment as maintenance helper would be recommended for termination as a result of his arrest on August 10, 1993. Respondent made a timely request for formal hearing on the termination and the case was referred to the Division of Administrative Hearings.

The hearing was set on a date recommended by the parties.

At the hearing, the School Board presented the deposition testimony of Respondent Sutton (received in evidence as Petitioner's exhibit 1). Relevant portions of the collective bargaining agreement were received as Petitioner's exhibit 2, without objection. John Reichert, the School Board's ombudsman and

equal opportunity employment coordinator, testified on behalf of the School Board.

John Sutton testified on his own behalf and presented the additional testimony of Dave Williamson and Linda Dawson. Respondent's exhibits 1-3 were received in evidence without objection. Respondent's exhibit 4, arrest forms and disposition sheets, was taken under advisement, and is now received in evidence over an objection based on relevance. Although marginally relevant, the exhibit has been considered.

After hearing, the transcript was filed, and each party submitted proposed findings of fact. Those findings are addressed in the attached appendix.

FINDINGS OF FACT

1. John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper.

   
   

2. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around.

   
   

3. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9)

   
   

4. Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges.

   
   

5. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed.

   
   

6. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest.

   
   

7. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay,

   pending the outcome of this proceeding on the superintendent's recommendation to the School Board.

   
   

8. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part:

   
   

   REGULAR EMPLOYEES

   Section 4.

   * * *

   B. An employee who has been hired for four

   (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause.

   * * *

   
   

   DISCIPLINE AND TERMINATION

   Section 5.

   A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include

   repri mands), suspended or terminated except for just cause.

   * * *

   1. An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present:

      1. Violation of School Board Policy

      2. Violation of work rules

      3. Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor

      4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in.

      5. Endangering the health, safety or welfare of any student or employee of the District

      6. The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction

      7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers

      8. Excessive tardiness

      9. Damage to School Board property

      10. Improper use of sick leave

      11. Failure to perform assigned duties

      12. Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added)

   
   

   Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items.

   
   

9. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense.

   
   

10. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement.

    
    

11. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Section 120.57(1), F.S.

    
    

13. It is uncontroverted that Sutton cultivated some marijuana plants and possessed marijuana. The issue is whether, in this case, this constitutes "just cause" for termination.

    
    

14. "Just cause" is not defined in the collective bargaining agreement. The School Board's argument that it is not limited to the twelve enumerated offenses in paragraph C., Section 5, is buttressed by the peculiar language in that section that the employee may be disciplined for those twelve reasons, "providing just cause is present." That is, both the specific violation and just cause are required for discipline under that section. "Just cause" for discipline of a non-instructional employee is not defined in any statute or rule. For instructional staff under contract, it is defined at subsection 231.36(1)(a), F.S., to include, but not be limited to "misconduct in office, incompetency, gross insubordination, wilfully neglect of duty, or conviction of a crime involving moral turpitude." See, also, similar provisions for

    suspension or dismissal of administrative, supervisory or instructional staff on continuing contract, in subsection 231.36(4)(c), F.S.

    
    

15. The legislature has provided clear guidance for school districts regarding instructional and non-instructional employees who are hired to fill positions requiring direct contact with students. Subsection 231.02(2)(a), F.S., requires fingerprinting upon employment and a criminal history background check. Employees found to have been convicted of a crime involving moral turpitude are not eligible for employment in a position requiring direct contact with students. Lack of good moral character is defined as having been convicted of a crime involving moral turpitude. Subsection 231.02(2)(b), F.S.

    
    

16. To the extent that these provisions may be used as guidance in discipline of employees such as Sutton, they are still inapplicable. His position does not require "direct contact" with students, but only incidental contact. He has not been convicted of a crime of moral turpitude, or of any crime. If the Board wishes to articulate policy which sets different standards of conduct for its [custodial employees], it is not precluded for doing so as long as there is a record foundation in support of that policy. Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). That record foundation is not found here.

    
    

17. The purpose of an employee discipline process or a drug free workplace policy, or even a "zero tolerance" for drug violations, is not to capture the unwary, but rather to prevent the proscribed activity by putting the public at large, and the employees specifically, on notice of the consequences. Due process requires no less. The School Board's policy here is not so circumscribed. If it does have a zero tolerance policy, notice has not been provided. It is not described in the collective bargaining agreement, or in drug free workplace rule, or even in any consistent application of such policy in prior cases. In this proceeding, the School board failed to prove the policy it seeks to apply against Sutton, and he should be reinstated with appropriate back pay. See, Rosario v. Burke, 605 So.2d 523 (Fla. 2d DCA 1992).

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay.

DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994.

MARY CLARK

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 11th day of May 1994.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings

1. Rejected as unnecessary.

2. Adopted in Paragraph 1.

3 & 4. Adopted in Paragraph 8.

5 & 6. Adopted in Paragraph 4.

7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct.

8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings

Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above.

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848

Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695

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

Tallahassee, Florida 32399-0400

Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771

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: 93-006394

Orders for Case No: 93-006394