STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 97-3562

)

CARLOS VELASQUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on November 16, 1997, at Fort Lauderdale, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock and Williams, P.A.

316 Northeast 4th Street

Fort Lauderdale, Florida 33301

For Respondent: Nina Ashenafi, Esquire

FEA/United

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUES

1. Whether Respondent was a probationary employee, and if so, whether the Division of Administrative Hearings has jurisdiction to enter a recommended order on his dismissal from

   employment with Petitioner.

2. If Respondent is entitled to an administrative hearing, whether Petitioner had just cause to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated April 29, 1997, Respondent, Carlos Velasquez (Velasquez), through the Broward Teachers Union, requested an administrative hearing concerning a letter dated April 18, 1997, from Petitioner, Broward County School Board (Board), advising him that the Security Clearance Committee had determined that he was not employable with the Board. The case was received by the Division of Administrative Hearings on August 5, 1997.

At the final hearing, Petitioner called Mark Seigle and Carlos Velasquez as its witnesses. Petitioner's Exhibits 1-13 were admitted in evidence. Respondent testified on his own behalf and called Maria DeRosa, Phyllis Schlorff, and Estella Canty as his witnesses. Respondent's Exhibits 1-3, 6 and 11 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on December 8, 1997. On December 10, 1997, Respondent filed Respondent's Motion to Reopen the Record on the Ground of Newly Discovered Information. The motion was heard by telephonic conference on January 27,

1998. The motion was denied, and the time for filing proposed recommended orders was extended to February 6, 1998. The parties timely filed their proposed recommended orders, which have been

considered by the undersigned Administrative Law Judge in rendering this recommended order.

FINDINGS OF FACT

1. In January 1993, Respondent, Carlos Velasquez (Velasquez), became employed with Petitioner, Broward County School Board (Board), as a temporary teacher's aide in the after- school care program.

2. In February 1994, Velasquez began working as a substitute teacher for the Board while continuing to work in the after-school care program. Velasquez was working toward a college degree while working for the Board.

3. In April 1996, Velasquez received a bachelor's degree from Florida Atlantic University.

4. In July 1996, Velasquez applied for a full-time teaching position with the Board.

5. On February 26, 1997, Velasquez began working for the Board as a third grade teacher at Oriole Elementary School. On that date he began working as a full-time teacher, Velasquez completed a number of employment forms, including a Security Background Check.1

6. The Security Background Check form states that the form must be turned in with the applicant's application for employment. The form requires the applicant to answer certain questions by checking boxes marked "yes" or "no." The form

   advises the applicant as follows:

   
   

   At the time of employment your fingerprints will be researched by local, state and federal law enforcement agencies. Sealed or expunged records must be revealed to the School Board of Broward County pursuant to

   F.S. 943.058. Your employment with the Broward County School District is temporary and probationary pending successful processing of your fingerprints. The following questions must be answered truthfully. A 'Yes' answer to any of the following questions does not automatically keep your from being hired. Your omission or falsification of any criminal history (misdemeanor or felony, see reverse for examples of criminal offenses) information will result in your immediate termination.

   
   

   * * *

   
   

   NOTE: Pursuant to Florida Statute 943.058 Criminal History Record Expunction or Sealing, persons to be employed in a position having direct contact with children must answer questions 4, 5, and 6. The School Board of Broward County will receive information on all records that have been sealed, expunged, or where adjudication was withheld. To omit a response or to be untruthful in your response, regardless of any information received from your attorney or the Court will be considered falsification of your application and will result in your being terminated. If you wish to seek counsel prior to completing this section, you may take this application with you.

   
   

7. The Security Background Check form also contains the following language:

   By signing this document I certify that I have carefully read and fully understand each question and that all information

   contained herein is true and accurate. My signature further certifies that there is no falsification of any information, omission of any information requested or any misrepresentation of information requested. I also understand that my fingerprints will be submitted to the Federal Bureau of Investigation for a complete criminal history background check.

   
   

   * * *

   
   

   By my signature, I certify that I know, understand, and agree that any false statement or omission of information requested will result in my immediate termination.

   
   

8. The following two questions on the Security Background Check form are at issue in this case:

   4. Have you ever had a criminal record sealed?

   * * *

   
   

   6. Have you ever had adjudication withheld in a criminal offense?

   
   

   Velasquez answered no to questions four and six on the Security Background Check form and signed the form.

9. Velasquez filled out the Security Background Check form at the Board's personnel office. He did not ask anyone how to fill out the form. At the time that he filled out the form, he did not understand the term "adjudication withheld."

10. In 1981, Velasquez was arrested for shoplifting, and the charge was dismissed. In 1991, Velasquez personally petitioned the court to seal the arrest record, which petition

    was granted. In 1991, Velasquez was charged with disorderly conduct. He pled not guilty and went to trial. The court withheld adjudication and required Velasquez to attend a six- week advocate program. At the conclusion of his trial in 1991, Velaquez did not understand that adjudication had been withheld.

    
    

11. By letter dated March 24, 1997, the Board advised Velasquez that it had received a report of criminal activity from the Department of Law Enforcement. The Board requested that Velasquez submit a full personal description of each incident. The letter further advised Velasquez that he could continue to work but that he would be suspended within ten working days if the Board had not received the requested documents.

12. Velasquez wrote to Dr. Roger Beaumont, the Director of Instructional Staffing for the Board, and advised him of the circumstances surrounding the charge for disorderly conduct.

13. Velasquez's case was presented to the Board's Security Clearance Committee, which determined on April 16, 1997, that Velasquez was not employable with the Board. Velasquez was notified of the committee's decision by letter dated April 18, 1997.

14. When Velasquez applied to the Department of Education for a teaching certificate, he did not advise the Department of

    Education that he had had adjudication withheld in a criminal proceeding. In May 1997, Velasquez wrote the Department of Education and stated:

    Recently I filled out an application for a teaching position with both Dade and Broward Counties. While filling out these applications, it was explained the thoroughness of the information requested.

    The background information necessary for employment was also explained. It is therefore the purpose of this amended information to be added to my file to possibly clarify any misunderstood information and/or misinterpretations. I was unclear of the legal terminologies, such as, withheld adjudication. It is for that reason why I would like the following information officially added to my file for teacher certification.

    
    

15. When Velasquez applied for the temporary teacher's aide position in January 1993, he completed a security check form and provided his fingerprints to the Board. The questions on the form did not include a question concerning sealed records. The form did include a question concerning adjudication being withheld in a criminal proceeding. Velasquez answered "no" to the question concerning the withholding of adjudication.

16. By memorandum dated August 29, 1995, the Board informed him that based on the results of the federal criminal history check as of January 11, 1993, he had met the criteria for employment/licensing with the Broward County School System.

17. In July 1996, Velasquez filled out an application form for employment as a full-time teacher. He also completed a Security Background Check form, which was the same form that he completed in February 1997. He answered "no" to question numbers four and six. His fingerprints were not processed in connection with the July 1996 application.

    CONCLUSIONS OF LAW

    
    

18. For the reasons explained below, the Division of Administrative Hearings does not have jurisdiction over the parties to and the subject matter of this proceeding relating to the merits of the case.

19. Section 231.02(2)(a), Florida Statutes, deals with the employment of teachers prior to the processing of the teacher's fingerprints and provides:

    Instructional and noninstructional staff who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . . Such new employees shall be on probationary status pending fingerprint processing and determination of compliance with standards of good moral character. Employees found through the fingerprinting to have been convicted of a crime involving moral turpitude shall not be

    employed in any position requiring direct contact with students. Probationary employees terminated because of their criminal record shall have the right to appeal such decisions. The cost of the fingerprinting processing may be borne by the school district or the employee.

    
    

20. The Board will hire teachers prior to the applicant's fingerprints being processed by the Federal Bureau of Investigation and the Florida Department of Law Enforcement if the employee's answers on the background form reveal that he does not have a criminal history. If Velasquez had answered "yes" to questions four or six, he would not have been allowed to begin work. The Security Background Check form clearly states that his employment is temporary and probationary pending successful processing of his fingerprints. Because Velasquez answered "no" to questions four, five, and six, the Board allowed him to start teaching on a temporary basis. Velasquez's being hired on an annual contract was contingent on the information from the fingerprint processing matching the answers to the questions on the Security Background Check form. When Velasquez received his notice from the Board that he was not employable with the Board, Velasquez was a probationary employee.

21. Velasquez was not terminated because of his criminal record, but because he falsified answers on the security check form. The Board was not required to terminate Velasquez based

    on just cause as set forth in Section 231.36, Florida Statutes.

    
    

22. The Division of Administrative Hearings does not have jurisdiction over proceedings dealing with the termination of a probationary employee which does not deal with termination because of the employee's criminal record.

23. The Board did establish by a preponderance of the evidence that if Velasquez had been entitled to an administrative hearing on his termination that it had just cause to terminate his employment.

24. Section 943.059(4)(a)6, Florida Statutes, deals with the effect of sealing a criminal history record and provides:

    1. The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrest covered by the sealed record, except when the subject of the record:

       
       

       * * *

       
       

       6. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local governmental agency which licenses child care facilities.

       
       

25. In 1991, Velasquez had the records sealed concerning his arrest for shoplifting. Based on Section 943.059(4)(a)6, Florida Statutes, Velasquez could neither deny nor fail to

    acknowledge that he had the arrest record sealed when he was seeking employment with a district school board. Velasquez argues that he did not think that he had a criminal record because the shoplifting case had been dismissed; thus, he did not believe that he had to reveal that he had the shoplifting records sealed. Section 943.059(4)(a)6, Florida Statutes, is not limited to those situations in which the charges were actually prosecuted but includes arrests and incidents of alleged criminal activity. Velasquez was required to answer yes to the question of whether he ever had a criminal record sealed. Additionally, the Security Background Check form advises applicants that the Board will receive information on all records that have been sealed and that an untruthful answer will be considered falsification. The form goes so far as to advise the applicant that he may take the form with him if he needs to seek counsel prior to completing the form.

26. Velasquez should have answered "yes" to question number 4. Having the records of the arrest and dismissal sealed, denotes that Velasquez must have considered them to be a criminal record in 1991. Otherwise, there would have been no need to have the records sealed. Velasquez falsified the answer to question number 4.

27. Velasquez did have adjudication withheld in the disorderly conduct charge and was required to attend an advocate

    program for six weeks. Velasquez claims that he thought that he had been found not guilty and that he was unaware that adjudication had been withheld. He did not recall the term "adjudication withheld" being used by the court and did not know what the term meant. The Board has not established by the greater weight of the evidence that Velasquez was aware that adjudication had been withheld.

28. Section 231.36, Florida Statutes, provides that dismissal of a teacher with an annual contract must be based on just cause, which is defined as including but not limited to misconduct in office.

29. Rule 6B-4.009, Florida Administrative Code, defines misconduct to include a violation of the Principles of Professional Conduct for the Education Profession in Florida as set forth in Rule 6B-1.006, Florida Administrative Code, which violation is so serious as to impair the effectiveness of the teacher in the school system.

30. Rule 6B-1.006, Florida Administrative Code, provides:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or other penalties as provided by law.

    
    

    * * *

    
    

    1. Obligations to the profession of education requires that the individual:

       
       

       * * *

       
       

       1. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.

    
    

31. Falsification of an application for employment is a serious offense and would affect the effectiveness of a teacher

    in the school system.

    
    

32. Velasquez argues that it was not an application form that he filled out incorrectly but a security clearance form; therefore, he was not guilty of falsification of an employment application. The Security Background Check form was part and parcel of the application for employment with the Board. The form specifically indicates that falsification of the document would result in termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Carlos Velasquez's request for an administrative hearing be dismissed.

DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998.

ENDNOTE

1/ The Security Background Check form executed by Velasquez

shows a date of 3/26/97. However, the greater weight of the evidence establishes that the form was actually signed on February 26, 1997. There are other documents which Velasquez signed on that date and dated 3/26/97 such as the Personnel Action form, the Designation of Beneficiaries form, Loyalty Oath form, and Form I-9. Some forms such as the Personnel Data, W-4 Form, and the Florida Department of Education Staff Experience Survey show that Velasquez originally dated the forms 3/26/97 and then wrote a two over the three, making the date 2/26/97.

COPIES FURNISHED:

Dr. Frank R. Petruzlelo Superintendent

Broward County School Board 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Charles T. Whitelock, Esquire Whitelock and Williams, P.A.

316 Northeast 4th Street

Fort Lauderdale, Florida 33301

Nina Ashenafi, Esquire FEA/United

118 North Monroe Street Tallahassee, Florida 32399-1700

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.

Docket for Case No: 97-003562

Orders for Case No: 97-003562