S. V., )
Respondent. )
Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on March 20, 1996, in Lake Butler, Florida.
For Petitioner: Robert J. Sniffen, Esquire
Ronald G. Meyer, Esquire Meyers and Brooks
For Respondent: Stephen N. Bernstein, Esquire
The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
By letter dated November 10, 1994, to the Director of the Division of Administrative Hearings, counsel for Petitioner Union County School District requested that a duly designated Hearing Officer review, through either a formal or an informal
hearing, the proposed action of Petitioner to expel R.S.V. from further school attendance.
By letter dated November 22, 1994, counsel for Respondent documented his November 10, 1994 request to Petitioner for a formal hearing pursuant to Section 120.57(1), Florida Statutes.
Several continuances granted upon request of the parties and one appeal by Petitioner's counsel to the First District Court Of Appeal of the State of Florida resulted in the delay of the final hearing in this cause until March 20, 1996.
At the final hearing, Petitioner presented the testimony of four witnesses and six other exhibits. Respondent's counsel presented testimony of three witnesses. A transcript of the final hearing was filed with the Division of Administrative Hearings on April 15, 1996.
Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.
Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994.
Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched.
Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent.
Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent.
On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self-
incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began.
In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room.
Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room.
Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident.
As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint."
Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area."
Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend.
Respondent's statement reads as follows:
On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot.
People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it.
Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis.
On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year.
At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident.
By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37.
Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question.
The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Section 230.33, Florida Statutes, details the duties and responsibilities of the position of school superintendent.
In general, Section 230.33(8)(c), Florida Statutes, provides that the superintendent shall propose rules regarding student discipline, inclusive of modification of student suspensions and expulsions recommended to the district school board.
Section 230.33(8)(c), Florida Statutes, also directs the superintendent to provide written notice to the pupil and pupil's guardian of his recommendation "setting forth the charges against the pupil" on which the recommended suspension or expulsion is based. It is questionable as a procedural point whether Superintendent Dukes provided adequate notice to Respondent's guardian in view of the absence of specific factual allegations in the notice provided Respondent's parents.
Section 232.26, Florida Statutes, sets forth the authority to be exercised by a school principal. Pursuant to provisions of Section 232.26, Florida Statutes, Leech was authorized to suspend Respondent in accordance with rules of the state board of education or district school board.
Union County School Board Rule 5.37 provides that a student "shall not possess" marijuana or controlled substances of any kind. The rule also provides that a first offense of possession will result in a suspension of "up to ten (10) days" with a "possible recommendation for expulsion."
The only credible evidence presented at the final hearing to establish Respondent's illicit possession of a substance alleged to be marijuana is his written admission. As established by that written statement, Respondent was in a restricted area and touched the remains of a cigarette, after it had been smoked by others. He then put the cigarette out and later retrieved it as he left the school campus in order to destroy it. No direct evidence was presented of either a scientific nature, or anecdotal by other students who actually smoked the cigarette, tending to establish the likelihood that the substance was cannabis.
It is established that Respondent's written admission of possession was made at the direction of his father. But, he and his father had been apprised by Leech that a 10 days suspension for presence in an improper area was the only likely penalty. Additionally, Townsend, who knew he had no basis for a criminal prosecution, had pressed for Respondent's admission to
the point of misrepresentation of the likelihood of criminal prosecution to both Respondent and his parents.
Due process in student disciplinary proceedings requires adequate notice, an opportunity to be heard, and substantial evidence to support the penalty. Student Alpha ID NO. GUJA v. School Bd, 616 So. 2d 1011 (Fla. App. 5 Dist. 1993).
Administrative proceedings in these matters must be "essentially fair." Gordan v. Savage, 383 So. 2d 646 (Fla. App.
5 Dist. 1993). In consideration of fairness, there are two wrongful acts to which Respondent admits. One is presence in a restricted area, the parking lot, in violation of school rules. The proof of this violation is well established by the sum of the evidence.
The quality of the evidence regarding Respondent's possession of a controlled substance, is less persuasive. At best, the evidence establishes Respondent's guilt of the offense of suspected possession of a marijuana cigarette. Other than his own admission that the cigarette was cannabis, there was no evidence presented that Respondent had the knowledge to make such a determination or that his written statement reflected anything other than a repetition of what the other students may have represented the cigarette's content to be when they were all in the school parking lot.
Fairness also requires that the manner in which Respondent's admission was obtained, be considered. Leech had assured both father and son that suspension for 10 days for being in the wrong place was the penalty to be expected. Such a penalty is permissible under Union County School Board Rule 5.37 and is, under the circumstances presented here, a fair result.
Consequently, the manner by which Respondent's admission was obtained, as well as the absence of persuasive proof that Respondent had any knowledge or basis upon which to reasonably presume that the content of the cigarette was an illicit substance, argue for mitigation of the expulsion penalty imposed in this case.
The elapsed time between institution of the school board's intended decision to the present date, coupled with Respondent's completion of his senior year at another high school, moots consideration of permitting Respondent to attend and graduate from Union County High School. Other action, however, may still be granted Respondent by the Union County School Board to assure the essential fairness of these proceedings.
