STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-4744

)

ROBERTO ALONSO, JR., )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 6, 1997, via video-teleconference between Tallahassee, Florida and West Palm Beach, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John D. Gronda, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey Crosland and Bramnick, P.A.

First Union Financial Center, Suite 3600

200 South Biscayne Boulevard Miami, Florida 33131

For Respondent: Thomas L. Johnson, Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

STATEMENT OF THE ISSUES

Whether Respondent, a school teacher employed by Petitioner pursuant to a professional services contract, committed the

offenses alleged by the Petitioner in its Petition for Dismissal and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher and was assigned to teach at John I. Leonard High School, one of the public schools in Palm Beach County, Florida. The Petition for Dismissal that initiated this proceeding alleged that on May 1, 1996, Respondent brought a firearm onto school property in violation of School Board Policy Number 3.26 (hereinafter, Rule 3.26 or the rule).

This policy was, at the times pertinent to this proceeding, a duly adopted School Board rule. Petitioner asserts that this is a policy of "zero tolerance" and requires the termination of Respondent's employment. Respondent timely challenged the Petition for Dismissal, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of James P. Kelly, the Respondent, Gary Zaniewski, Charles C. Edwards, Robert R. Walton, and Louis Haddad, Jr. In addition, Petitioner called Dr. Walter H. Pierce, Jr., as a rebuttal witness. Petitioner presented fifteen exhibits, each of which was accepted into evidence. Among Petitioner's exhibits was the deposition of Hugh Brady. Respondent presented the additional testimony of Jack McLaughlin and Van V. Lundy. Respondent

presented three exhibits, each of which was accepted into evidence. Among Respondent's exhibits was the depositions of Cara Elmore.

Mr. Kelly is an attorney who is employed by Petitioner as the chief of its police force. Mr. Kelly is the author of School Board Policy 3.26. Mr. Zaniweski is a parent who is active in the John I. Leonard Baseball Boosters Association. Mr. Edwards and Mr. Walton are members of Petitioner's police force. Mr.

Haddad and Dr. Pierce are employed by the Petitioner in its employee relations department. Mr. Brady was the principal of John I. Leonard school at the times pertinent to this proceeding. Mr. McLaughlin was the athletic director at John I. Leonard School at the times pertinent to this proceeding. Mr. Ludy and Ms. Elmore were representatives of the Palm Beach County Classroom Teachers Association (CTA) at the times pertinent to this proceeding.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent was first employed by Petitioner in 1992. For the school year 1995-96, Respondent was assigned as a special education teacher at John I. Leonard High School, one of the public schools in Palm Beach County. In addition to his teaching duties, Respondent was the coach of the Junior Varsity baseball team.

2. At all times pertinent to this proceeding Respondent was a member of the CTA, the union that represents instructional staff in the Palm Beach County School District.

3. Effective January 18, 1995, the Petitioner adopted School Board Policy 3.26 as a rule. This rule was drafted by James Kelly, an attorney who is employed by Petitioner as the chief of its police force. It was the intent of Chief Kelly to draft a "zero tolerance" rule, prohibiting employees and others from bringing firearms on school property. It was the intent of Chief Kelly in drafting the rule that the employment of any employee who violated that prohibition would be suspended until that employment could be terminated.

4. Rule 3.26 provides, in pertinent part, as follows:

   
   

   1. It is the intent of this Policy to clearly state that possession of firearms will not be tolerated on School District property.

   2. Definitions:

      1. "Firearm" means any weapon (including a starter gun or antique firearm) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any destructive device; or any machine gun.1

      2. "Employee" means any person hired by the School Board after completing the personnel procedures required by the School Board.

      3. "Independent Contractor" means any person or company other than a School District employee, who provides goods and/or services to the School District and enters into a contracted agreement with the School Board.

      4. "Visitor" means any business or personal invitee including, but not limited to, parents, volunteers, family members of School District employees or friends of School District Employees.

   3. Any School District employee found to have brought a firearm on School District property shall be subject to suspension and dismissal in accordance with the procedures set forth in School Board Policy 3.27.2

   4. All Contract Agreements with Independent Contractors shall provide that, if any employee of an Independent Contractor or Sub-Contractor is found to have brought a firearm on School District property, said employee will be terminated from the School Board project by the Independent Contractor or the Sub-Contractor. If the Sub-Contractor fails to terminate the employee, the Sub- Contractor's Agreement with the Independent Contractor for the School Board project shall be terminated. If the Independent contractor fails to terminate said employee or fails to terminate the Agreement with the Sub- Contractor who fails to terminate said employee, the Independent Contractor's Agreement with the School Board shall be terminated.

   5. Except to the extent allowed by law, any visitor found to have brought a firearm on School District property shall be notified that all subsequent visits to School District property will be by an appointment only, and that visits without prior appointment may result in a criminal action for trespass.

      
      

   6. This Policy does not apply to any Law Enforcement Officer . . .

      
      

5. Article II, Section M of the collective bargaining agreement between the CTA and the School Board, entitled "Discipline of Employees (Progressive Discipline)," provides, in pertinent part, as follows:

   1. Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.

      
      

   2. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.

   
   

   * * *

   
   

   1. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee maybe reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties.

      
      

   2. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and

      purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:

      
      

      1. Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which lead to the notation.

      2. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this agreement.

      3. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with Article II, Section B of this Agreement.

      4. Suspension Without Pay. A suspension

         without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section , including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article

         II, Section B of this Agreement.

      5. Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.

      
      

   3. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) include either a suspension or a dismissal, the grievance shall be initiated at STEP TWO.

   
   

6. At the times pertinent to this proceeding, Respondent had a concealed weapon's permit issued by the Florida Department of State's Division of Licensing. Respondent received instructions and materials when he obtained his concealed weapons permit in Florida that clearly advised him that a concealed weapons permit does not authorize the possession of a concealed weapon on school premises. Respondent knew or should have known that his concealed weapon's permit did not authorize him to carry a firearm on school property.

7. At all times after March 29, 1996, Respondent knew or should have known that school employees were prohibited from bringing firearms on school property. Prior to May 1, 1996, Respondent knew or should have known of the School Board's Rule

   3.26.3 Respondent knew or should have known that bringing a

   firearm on school property would violate this rule.

   
   

8. March 29, 1996, was a teacher planning day. On that day Respondent brought on school property a firearm that he had recently purchased so he could show the firearm to Officer

   Charles C. Edwards, a member of the School Board's police force. Officer Edwards told Respondent he could not have a firearm on school property.

9. As of May 1, 1996, the junior varsity baseball season was over for John I. Leonard High School, but the varsity team was in the post-season playoffs. On May 1, 1996, the varsity team was involved in a game that would eliminate the loser from the playoffs. The game was scheduled to begin at 7:00 p.m. on the campus of John I. Leonard.

10. At the request of the varsity baseball coach, Respondent agreed to scout a potential playoff opponent that was playing a game in Plantation, Florida, at 7:00 p.m.

11. When Respondent left his house on the late afternoon of May 1, 1996, he intended to make a bank deposit prior to going to John I. Leonard High School to pick up the forms that he was to fill out as he scouted the potential opponent. The bank deposit was for the Men's Baseball Association of Palm Beach County and consisted of more than $1,000 in cash and checks.

12. It was Respondent's practice to carry a firearm on his person when he had a large sum of money to be deposited. Consistent with that practice, Respondent took his firearm when he left his house on May 1, 1996, and drove to his bank's drive- in window. At all times on May 1, 1996, pertinent to this proceeding, Respondent had his firearm in a holster. When Respondent first entered his vehicle, he placed the holstered

    firearm in a fanny pack and placed the fanny pack containing the holstered firearm under the seat of his vehicle. Consistent with his practice, when Respondent got to the line for the drive-in window, he removed the gun from the pouch and placed the holstered firearm in his lap. Because he was running late and the line was moving slowly, Respondent pulled out of the line of cars without making his deposit and headed for John I. Leonard High School to pick up the forms he needed. He clipped the holstered firearm to his belt between his body and his pants at the rear of his right hip. His shirt tail covered the firearm.

    Respondent also had his cellular phone and beeper clipped to his belt. The cash was in the right front pocket of his pants.

13. Respondent arrived at John I. Leonard High School a few minutes before 6:00 p.m. on May 1, 1996. He parked his vehicle on school grounds in the parking lot near the school gymnasium and approached the gate to the ball field area. Respondent intended to go to the office of the varsity baseball coach to get the forms he needed to scout the game in Plantation. The coach's office was located inside the ball field area above the

    concession stand. Tickets to the game were sold at a table that was set up at the gate.

14. As Respondent approached the gate, Gary Zaniewski, Jack McLaughlin, and Scott Siegel were present at the ticket table. Mr. Zaniewski was, as of May 1, 1996, the father of a varsity baseball player and served as the president of the John I. Leonard High School Baseball Booster Club. Mr. McLaughlin and Mr. Siegel were school board employees.

15. As Respondent passed by the table, Mr. Zaniewski noticed that Respondent was wearing a firearm and reminded him of that fact. Mr. Zaniewski told Respondent that he did not think it was appropriate for him to have a firearm on school property. Respondent immediately turned around, went back to his vehicle, placed the holstered firearm in the pouch under the seat, and locked the car. He thereafter went to the coach's office, got the forms he needed, and went to Plantation to scout the game. The firearm was in Respondent's vehicle during the few minutes it took him to get the forms from the coach's office.

16. During the time Respondent was on school grounds, he did not remove the firearm from the holster, point it at anyone, shoot anyone or anything, threaten or harm anyone, or engage in any kind of confrontation. While there were members of the baseball team at the field warming up, those players were not in close proximity to Respondent.

17. For the calendar year 1995, there were 169 reported

    thefts from motor vehicles located on School Board property and

    
    

    23 motor vehicles stolen from School Board property. The presence of a firearm locked in a vehicle on school property presents a real and immediate danger that Rule 3.26 was enacted to prevent.

18. Respondent testified that he was in a hurry on May 1, 1996, and simply forgot that he had the firearm on his person when he approached the gate to the baseball field. Although there was testimony that a person would not forget he was carrying such a weapon, the testimony of the Respondent is found to be credible. Consequently, it is found that he forgot he had the firearm on his person when he first exited his vehicle on school property on May 1, 1996. There can be little doubt, however, that Respondent was aware that he had a firearm with him when he drove on school property.

19. The Respondent's holster did not have any device to impede unauthorized or inadvertent removal of the firearm. In contrast, the type holsters used by Petitioner's police force requires three separate actions in order for the gun to be removed from the holster. Respondent's careless possession of a firearm that was clipped to his belt in an unsafe holster presented a real and immediate danger that Rule 3.26 was enacted to prevent.

20. Rule 3.26 is a reasonable exercise of the School Board's authority.

21. Despite the events of May 1, 1996, Respondent was given a professional services contract by the School Board for the year 1996-97. On the recommendation of the Superintendent of Schools, the School Board suspended Respondent's employment effective September 19, 1996, and voted to institute these proceedings to terminate his employment.

    CONCLUSIONS OF LAW

    
    

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

23. Section 231.36, Florida Statutes, provides, in pertinent part, as follows:

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be . . . entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    
    

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charge against him or her must be based on just cause as provided in paragraph (1)(a). Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are

    not sustained, the employee shall be immediately reinstated, and his or her back pay shall be paid.

    
    

24. In the absence of the collective bargaining agreement, the Petitioner's burden would be to prove the allegations against Respondent using the preponderance of the evidence standard.

    See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So. 2d 778 (Fla. 1st DCA 1981), Allen v. School Board of Dade County,

    571 So. 2d 568 (Fla. 3d DCA 1990), and Dileo V. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). Because of the provisions in the first paragraph of Section M of Article II, the Petitioner's burden of proof is the clear and convincing evidence standard. Administrative Law Judge Mary Clark came to the same conclusion in construing the same provision in Palm Beach County School Board v. Walter Auerbach, DOAH Case No. 96-3683 (DOAH 1997). See also, School Board of Seminole County v. Morgan, 582 So. 2d 787 (Fla. 5th DCA 1991).

25. Pursuant to Section 230.22, Florida Statutes, the School Board has the authority to "determine and adopt such policies and programs as are deemed necessary by it for the efficient operation and general improvement of the district school system." The School Board clearly has the authority to prohibit the persons set forth in Rule 3.26 from possessing a firearm on school premises, whether the possession is actual or constructive.

26. Respondent violated the provisions of Rule 3.26 by bringing a firearm on to John I. Leonard High School on May 1, 1996, as alleged by Petitioner. Respondent violated the rule merely by having the firearm in his vehicle and driving the vehicle on school property. Respondent brought the firearm on school property, had the firearm on his person while on school property, and then left the firearm in his vehicle, which was on school property, while he went to the coach's office. All of these acts violate Rule 3.26. Whether Respondent forgot he was wearing the firearm when he first exited his truck and started to the coach's office is relevant in determining the appropriate penalty, but it is irrelevant to the issue of whether the violation occurred.

27. Petitioner correctly asserts that Rule 3.26 constitutes a "zero tolerance" policy in that it prohibits employees from bringing firearms on to school property.

28. The parties dispute whether Rule 3.26 requires that Respondent's employment be terminated because of this violation. Chief Kelly established that his intent in drafting the Rule was to provide for mandatory termination of employment for any employee who violated the Rule. While this may have been his intent and the intent of the School Board when it adopted the Rule, the Rule itself is not ambiguous and it is not necessary to resort to what Chief Kelly and the School Board intended in construing the Rule. See, George W. Eager and Calusa Camp Resort

    v. Florida Keys Aqueduct Authority, 580 So. 2d 771 (Fla. 3rd DCA 1991). The Rule states that employees who violate the rule "shall be subject to suspension and dismissal." The most appropriate definition of the term "shall be subject to" is shall be "liable to incur or receive" or "exposed to." See, The American Heritage Dictionary of the American Language. Based on the commonly understood meaning of the phrase "subject to," it is concluded that the Rule advises employees that they are prohibited from bringing a firearm on school property and that a violation of the rule may expose the employee to termination of employment under appropriate circumstances. The rule does not advise the employee that his or her employment will be terminated in all circumstances.

29. The collective bargaining agreement pertinent to this proceeding was executed February 7, 1996, after the adoption of Rule 3.26. For covered employees such as the Respondent, the collective bargaining agreement requires the imposition of progressive discipline except under two circumstances. Those exceptions are found in Paragraph 7 of Article II, Section M, as follows:

    7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered . . .

30. The evidence established that both exceptions to the progressive discipline provision were established in this proceeding. Respondent's possession of a firearm on school property on May 1, 1996, constituted a real and immediate danger to the District within the meaning of Paragraph 7 of Article II, Section M, of the Collective Bargaining Agreement. Prohibiting firearms on school property is a reasonable rule, and one that the Respondent knew or should have known. Respondent's bringing a firearm on school property was a flagrant and purposeful violation of this reasonable rule. By bringing this firearm on school property, Respondent exposed himself to being suspended and his employment terminated. It is concluded that the School Board is not bound by the progressive discipline provisions of the collective bargaining agreement.

31. In recommending the discipline to be imposed against Respondent, the undersigned has considered that Respondent acted hastily and with poor judgment in bringing a firearm on school property. The undersigned has also considered that Respondent was, at the time of the incident, volunteering his time to assist the varsity baseball team and that he had not been previously disciplined. The undersigned has also considered Respondent's reaction when reminded that he had the firearm on his person. Based on those considerations, it is concluded that there should be substantial discipline imposed against Respondent, but that termination of his employment is not warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that finds that Respondent violated the provisions of Rule 3.26 as alleged by Petitioner and suspends his employment for a period of one year.

DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.

ENDNOTES

1/ This is similar to the definition of "firearm" used for Chapter 790, Florida Statutes, which regulates the possession of firearms. See, Section 790.001(6), Florida Statutes.

2/ Section 790.115(2)(a), Florida Statutes, prohibits the possession of firearms on school property, but makes an exception for possession of a firearm in a vehicle pursuant to Section 790.25(5), Florida Statutes. Rule 3.26 prohibits bringing a firearm on school property, thereby eliminating the statutory exception pertaining to possession of a firearm in a vehicle.

3/ As discussed in the next paragraph, Respondent was told by Officer Edwards on March 29, 1996, that he could not have a firearm on school property. In addition, the adoption of Rule

3.26 was advertised in a local newspaper, debated at School Board meetings attended by representatives of the CTA, and placed in

policy manuals, which were readily available at John I. Leonard High School and discussed by the principal at the beginning of the school year.

COPIES FURNISHED:

John D. Gronda, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey Crosland and Bramnick, P.A.

First Union Financial Center, Suite 3600

200 South Biscayne Boulevard Miami, Florida 33131

Thomas L. Johnson, Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

Dr. Joan Kowal, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

Frank T. Brogan, Commissioner of Education Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 This is similar to the definition of "firearm" used for Chapter 790, Florida Statutes, which regulates the possession of firearms. See, Section 790.001(6), Florida Statutes.

2 Section 790.115(2)(a), Florida Statutes, prohibits the possession of

firearms on school property, but makes an exception for possession of a firearm in a vehicle pursuant to Section 790.25(5), Florida Statutes. Rule

3.26 prohibits bringing a firearm on school property, thereby eliminating the statutory exception pertaining to possession of a firearm in a vehicle.

3 As discussed in the next paragraph, Respondent was told by Officer Edwards

on March 29, 1996, that he could not have a firearm on school property. In addition, the adoption of Rule 3.26 was advertised in a local newspaper, debated at School Board meetings attended by representatives of the CTA, and placed in policy manuals, which were readily available at John I. Leonard High School and discussed by the principal at the beginning of the school year.

Docket for Case No: 96-004744

Orders for Case No: 96-004744