STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4826

)

HERMAN BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on January 17, 1997 in Bartow, Florida.

APPEARANCES

For Petitioner: Donald Wilson, Esquire

LANE, TROHN, CLARKE, BERTRAND, VREELAND and JACOBSEN, P.A.

Post Office Box 1578

150 East Davidson Street Bartow, Florida 33831-1578

For Respondent: Mark Herdman, Esquire

HERDMAN & SAKELLARIDES, P.A.

34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684-2157

STATEMENT OF THE ISSUE(S)

Did Respondent Herman Brown violate the policies of Petitioner Polk County School Board (Board) and thereby justify his dismissal from employment with the Board?

PRELIMINARY STATEMENT

By letter dated July 25, 1996, John A. Stewart, Superintendent of the Polk County Schools, advised Respondent Herman Brown that he was being suspended without pay effective

August 5, 1996, and that Respondent would remain on suspension without pay pending an internal investigation by the Superintendent’s office concerning Respondent’s arrest by the Polk County Sheriff’s Office for allegedly soliciting prostitution. By letter dated August 15, 1996 Superintendent Stewart advised Respondent that he was continuing Respondent’s suspension without pay and would recommend termination of Respondent’s employment to the Board at the Board’s regular session on August 27, 1996. By letter dated August 28, 1996, Superintendent Stewart advised Respondent that the Board at its regular session on August 27, 1996, approved Superintendent Stewart’s recommendation to terminate Respondent’s employment with the Board, and that the effective date of the termination would be August 5, 1996. By letter dated August 30, 1996, the Respondent, through counsel, requested an administrative hearing pursuant to Chapter 120, Florida Statutes. By letter dated October 4, 1996, the matter was referred to the Division for the assignment of an Administrative Law Judge and the conduct of a hearing.

At the hearing, the Petitioner presented the testimony of William Londerere, Kelly Somers, and Mary Gaertig. Petitioner’s exhibits one through thirteen were received as evidence.

Respondent testified on his own behalf and presented the testimony of Nora Mae Taylor, Peter Glynn, Janice Snell, Annie Ruth Wright, and Peggy Esrle. Respondent’s exhibits one through three were received as evidence.

A transcript of this proceeding was filed with the Division on February 5, 1997. The parties requested additional time to file their proposed findings of fact and conclusions of law which was granted with the understanding that any time frame imposed under Rule 28-5.402, Florida Administrative Code for the entry of a Recommended Order was waived in accordance with Rule 60Q- 2.021(2), Florida Administrative Code. The parties timely filed their proposed findings of fact and conclusions of law within the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. The Board is the county agency responsible for operating the public schools within the Polk County School District as established in Chapter 228, Florida Statutes.

2. Respondent has been employed in the Polk County School System since 1993. At all times pertinent to this proceeding, Respondent was employed as a paraprofessional at the Polk County Boot Camp for troubled teenage students. Paraprofessionals assigned to these positions are given a salary supplement to attract and retain employees who will be proper role models for these students.

3. At all times pertinent to this proceeding, Respondent’s employment was pursuant to an annual contract which provided that Respondent could only be terminated for just cause.

4. On July 24, 1996, Detectives Kelly Somers and Mary Gaertig of the Polk County Sheriff’s Office were working with an

   undercover unit in the Medulla area of Lakeland, Florida, a small neighborhood consisting of approximately three blocks, which is predominantly black. Detectives Somers and Gaertig are both female and white, and were attempting to make undercover purchases of illegal drugs.

5. Respondent is a black person who, at all times pertinent to this proceeding, lived in the Medulla neighborhood and had lived in the Medulla neighborhood most of his life.

6. On July 24, 1996, while walking on Lily Road in Medulla, Respondent noticed Detectives Somers and Gaertig in a car that had passed him several times. Assuming the two detectives were attempting to attract his attention, Respondent engaged them in conversation.

7. During the course of this conversation, Detective Gaertig told Respondent that they were looking for an “older” black male who had “ripped her off” by selling her a “false substance” as crack cocaine. Detective Gaertig described this black male to Respondent, but Respondent was unable to identify this person.

8. Also, during this conversation, the detectives brought up the matter of “partying” and told Respondent if he wanted to party with them that it would cost him $50.00 apiece for each of them. Respondent told the detectives to make the block and he would meet them. Instead, Respondent went home and had no further contact with the detectives that day. Respondent did not have any money or crack cocaine with which to pay for any “partying.”

9. The next day, July 25, 1996, Respondent was on the way to sell some scrap gold to purchase desserts for an upcoming church picnic that day when he saw Detective Somers. Detective Somers asked Respondent where he had gone the previous day when he was supposed to meet them, and he told her he had gone home.

10. Detective Somers showed Respondent some money and inquired of Respondent as to where she could by some crack cocaine. Respondent told Detective Somers that he knew where she could buy some crack cocaine, and asked her for a ride to the gold store. For security reasons, Detective Somers did not allow Respondent in the car, but told him she was going after her friend (Detective Gaertig) and they would be back.

11. After Detective Somers left, a friend of Respondent’s told him that Detective Somers was an undercover officer. At this point, Respondent asked a friend for a ride to the gold store, but before they could leave, the detectives pulled up by the car and asked Respondent if he wanted a ride. Respondent told them no, and at this time his friend, realizing that the women were undercover officers, told Respondent to get out of his car.

12. Respondent was arrested and charged on July 25, 1996, with two counts of soliciting prostitution, but was later released on July 25, 1996. Subsequently, the case was terminated and dismissed by the State Attorney.

13. The alleged circumstances surrounding Respondent’s arrest were reported in the Lakeland Ledger on July 28, 1996.

14. The evidence is clear that the Respondent did not at any time on July 24 or 25, 1996, produce any money or illegal drugs, specifically crack cocaine, to pay for sex with Detectives Somers and Gaertig.

15. It is equally clear that Respondent did not at any time on July 24 or 25, 1996, ask Detectives Somers and Gaertig to have sex with him or offer to pay them in any fashion to have sex with him, notwithstanding the testimony of Detectives Somers and Gaertig to the contrary, which I find lacks credibility.

16. There is no evidence in the record from any member of the community that Respondent’s conduct has seriously reduced Respondent’s effectiveness in his assigned position.

17. From all accounts, Respondent has performed credibly in his assigned position.

    CONCLUSIONS OF LAW

    
    

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

19. Section 6Gx53-3.005(1)(A)(1) and (2), School Board of Polk County, Policies and Procedures, provide as follows:

    1. Authority: The Superintendent has the authority to direct or arrange for the proper direction and improvement of all Employees of the district school system and to take the necessary steps to bring about continuous improvement.

       1. Discipline/Dismissal: Employees will be subject to discipline or dismissal for just cause which includes, but is not limited to, misconduct of the following nature:

          1. Immorality: A charge of Immorality is defined as conduct contrary to conscience or public morality.

          2. Misconduct in Office: A charge of Misconduct in Office is defined as conduct which seriously reduces the Employee’s effectiveness in the assigned position, or as an Employee of the Board. (Emphasis supplied)

             
             

20. The Board seeks to dismiss Respondent from employment as a paraprofessional on the basis of immorality and misconduct in office. Respondent was employed pursuant to an annual contract and can be terminated for just cause. The Board bears the burden of proving, by a preponderance of the evidence, that Respondent’s conduct comes within the Board’s definition of either immorality or misconduct in office, and therefore just cause for dismissal. The Board has failed to meet its burden of proof in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

Recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay.

RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings 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 28th day of April, 1997.

COPIES FURNISHED:

Donald H. Wilson, Jr.

LANE, TROHN, CLARKE, BERTRAND, VREELAND and JACOBSEN, P.A.

Post Office Box 1578

150 East Davidson Street Bartow, Florida 33831

Mark Herdman, Esquire HERDMAN & SAKELLARIDES, P.A.

34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684

Glenn Reynolds, Superintendent Polk County Schools

Post Office Box 391

1915 South Florida Avenue Bartow, Florida 33830-0391

Honorable Frank T. Brogan Commissioner 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 the Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-004826

Orders for Case No: 96-004826