STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1265

)

NOYLAND G. FRANCIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 24, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Lee M. Rosenberg, Esquire

School District of Palm Beach County Office of General Counsel

3318 Forest Hill Boulevard

West Palm Beach, Florida 33406 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Petitioner has cause to terminate Respondent's employment as a school custodian.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was employed as a school custodian by the Petitioner. By letter dated February 9, 1995, the Superintendent notified Respondent that cause existed to terminate his employment based on theft of school property and misconduct in office. On February 21, 1995, the School Board suspended his employment without pay pending this termination proceeding. Respondent requested a formal hearing to challenge the School Board's action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

Respondent did not appear at the formal hearing. Following the formal hearing, Respondent telephoned the office of the undersigned and stated that he had received notice of the hearing, but that he had forgotten about the hearing. The Respondent was notified of his right to submit a post-hearing submittal, notwithstanding his failure to appear at the formal hearing. At the formal hearing, Petitioner presented the testimony of Paul LaChance, a personnel administrator employed by the School Board, and that of John Bell, a police

officer employed by the School Board. Petitioner presented two exhibits, both of which were admitted into evidence.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Petitioner are adopted in material part by the Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian.

   
   

2. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property.

   
   

3. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation.

   
   

4. The School Board has the authority to terminate Respondent's employment for cause.

   
   

5. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee.

   
   

6. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding.

   
   

7. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

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

9. Pursuant to Section 230.23(5)(f), Florida Statutes, the Petitioner has the authority to suspend or terminate Respondent's employment as a school custodian. Such a suspension or termination must be based on a finding of cause.

   
   

10. That Respondent was convicted of theft of school property following a non-jury trial in a criminal proceeding does not, in and of itself, conclusively establish the underlying facts upon which that conviction was based. In Kelly

    v. Department of Health and Rehabilitative Services, 610 So.2d 1375 (Fla. 2nd DCA 1992), the court recognized that general rule as follows:

    
    

    As a general rule, a judgment of conviction, in and of itself, is not conclusive proof of the facts upon which it is based. Trucking Employees of New Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 505 (Fla. 1984); Wallace v.

    Fisher, 567 So.2d 505 (Fla. 5th DCA 1990); In Re Forfeiture of a 1981 Automobile, 432 So.2d 732 (Fla. 4th DCA 1983).

    
    

11. In addition to evidence that Respondent had been convicted of theft of school property, Petitioner presented the testimony of Officer Bell who testified as to his investigation, which included statements Respondent had made to him. It is concluded that Petitioner established by a preponderance of the evidence that it has good cause to terminate Respondent's employment as a school custodian by his possession of the stolen piece of equipment and by his inability to make a credible explanation as to how he came into that possession. These facts, at a minimum, establish a prima facie case of misconduct in office, which Respondent has failed to overcome.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates

Respondent's employment as a school custodian.

DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 21st day of June, 1995.

COPIES FURNISHED:

Lee M. Rosenberg, Esquire

Palm Beach County School Board 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406-5813

Mr. Noyland Francis

7326 Willow Spring Circle Lantana, Florida 33463

Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board

3318 Forest Hill Boulevard

West Palm Beach, Florida 33406-5813

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 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: 95-001265

Orders for Case No: 95-001265