STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-0617

)

STEPHANIE ORR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 8, 1998, by video teleconference with the parties appearing at West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: V. Tanner-Otts, Esquire

Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Lee M. Rosenberg, Esquire Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Mamie Washington Kendall, Esquire

141 South Main Street, Suite 211 Belle Glade, Florida 33430

STATEMENT OF THE ISSUE

Whether the Respondent should be suspended and dismissed

from her employment with the school district.

PRELIMINARY STATEMENT

This case began on November 24, 1997, when the Superintendent of Schools for the Petitioner, Palm Beach County School Board, notified the Respondent, Stephanie Orr, that she had recommended Respondent be suspended without pay and dismissed from her employment with the School Board. Such recommendation was approved by the School Board at a meeting held

January 21, 1998. Respondent was charged with misconduct as it is alleged she falsified the security check form submitted with her employment application. The Petitioner maintains that such falsification constitutes just cause for termination of employment.

Respondent timely requested an administrative hearing to contest the allegations. Thereafter, the School Board entered an administrative complaint setting forth the specific allegations against the Respondent. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on

February 9, 1998.

At the hearing, the Petitioner presented testimony from James Kelly, the Chief of School Police for the School District; and Mona Jensen, an EEO Coordinator and School District Representative. Petitioner's Exhibits 1, 2, 3, 4, 5, 7, 8 (pages

19, 22, 23, 24, and 25), and 11 were admitted into evidence.

Respondent testified in her own behalf and presented testimony from Allie Howard Biggs, Transportation Coordinator II, employed by the School District.

The transcript of the proceeding was filed on July 2, 1998.

The parties requested twenty days leave to file their proposed recommended orders which was granted. The proposed orders which were both timely filed have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is charged by Florida law with the operation, control, and supervision of all School District employees.

2. Respondent has been employed by the Petitioner since 1993 as a full-time school bus driver. Accordingly Respondent is classified as non-instructional school personnel.

3. On February 1, 1991, Respondent completed an employment application with the Petitioner. Such application included a security check form. This form required Respondent to answer three specific questions regarding her criminal history.

4. Such questions were:

   
   

   1. Have you ever received a penalty from a judge or a law enforcement agency or do you currently have charges pending as the result of an arrest?

      
      

   2. Has a penalty or conviction ever been withheld, delayed or turned over to another agency or has probation been required as the result of your being arrested?

      
      

   3. Have you ever applied for and received an expungment of an arrest?

      
      

      If your answer to question 1, 2, or 3 is yes, complete the following. If more space is needed, attach an additional sheet.

5. As to each question posed, Respondent answered by checking the box "No." For the area to be completed if any answer were "Yes," Respondent wrote "N/A."

6. Subsequent to the submittal of the application noted above, Respondent was employed part-time by the School Board.

7. On January 4, 1993, Respondent completed a second application for employment with the School Board and again submitted a Security Check form.

8. This second form contained the following questions:

   
   

   1. Have you ever been convicted or received a penalty (imprisonment, probation, fines, court costs, etc.) from a judge or a law enforcement agency for a crime other than minor traffic infractions?

      
      

   2. Has a penalty or conviction ever been withheld (adjudication withheld) or delayed or has probation been required as the result of your being arrested?

      
      

   3. Do you currently have charges pending as the result of an arrest?

      
      

   4. Have you ever received an expungement (charges erased) of an arrest or a pardon of a conviction? (Any sealed record should be included.)

      
      

      If you responded YES to any of the above questions, give details below. If more space is needed, attach an additional sheet.

      
      

9. On the Security Check form executed in 1993, Respondent checked "Yes" and "No" for the first question; "No" to questions 2, 3, and 4; and inserted "N/A" to the portion to be completed if any answer were "YES."

10. Shortly after completing the application, Respondent

    began her full-time work with the School District.

    
    

11. On or about September 30, 1997, Chief Kelly's office received a request for investigation regarding the alleged current arrest of a school employee, Respondent.

12. While conducting this investigation, it was verified that Respondent had a current arrest but that she also had had a previous arrest for aggravated battery.

13. According to court records, the accuracy of which Respondent does not dispute, Respondent was arrested in 1988 for aggravated battery, pled guilty to the lesser offense of battery, and was adjudicated guilty.

14. As a result of the plea, Respondent was placed on probation for six (6) months, was directed to pay probation costs, and was ordered to make restitution for the victim's medical bills.

15. The investigation was completed and the foregoing findings were presented to the Respondent who was offered, by way of a disciplinary conference, an opportunity to respond to the allegations. Respondent was asked to share any mitigating or exculpatory evidence with regard to the alleged falsification of the Security Check forms.

16. Such disciplinary conference occurred on November 10, 1997. Respondent did not deny the prior history nor offer any information to enlighten school officials as to why she had

    failed to disclose the criminal matter from 1988.

    
    

17. At hearing Respondent maintained that a Public Defender had advised her at the time of the plea that the incident would not affect her employment.

    
    

18. Respondent admitted that she recalled being on probation for the incident from 1988.

19. Respondent did not request assistance nor seek advice regarding the forms for employment.

20. Respondent completed high school and did not, prior to completing the Security Check form and submitting it to the Petitioner for employment purposes, indicate that she did not understand the questions posed or the information sought from Respondent.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

22. In this case the Petitioner bears the burden of proof to support a termination of Respondent's employment with the School District. It has met that burden.

23. Petitioner established, and it is not disputed by Respondent, that the Respondent has a criminal record. Additionally, Respondent's record is the type that is to be disclosed on the Security Check forms applicable to this matter.

    Petitioner did not correctly and truthfully complete the employment application and its Security Check form because she omitted true information regarding her 1988 arrest and conviction.

24. The Security Check forms, in unambiguous language, requested information from Respondent which she did not supply. Respondent's use of the "N/A" to indicate "not applicable" (as she testified) supports the conclusion that Respondent understood the form.

25. Moreover, Respondent understood and remembered that probation was required as a result of her past criminal act. The Security Check form clearly referenced "probation" as a type of penalty to be considered and, therefore, disclosed. Respondent has offered no credible explanation for why she falsely completed these forms.

26. The Petitioner's policy 3.12 entitled "Criminal Background Checks," provides, in pertinent part:

    2. A prospective or current employee may be disqualified or terminated from employment if the prospective or current employee fails to provide accurate information on the application regarding a prior arrest for which a penalty or conviction was received, regardless of adjudication or if probation was required, or if records were sealed or expunged.

27. Based upon the foregoing, it is concluded that falsification of an employment application may be just cause for termination. Accordingly, as the Petitioner has established that

the Respondent submitted not one but two false Security Check forms and thereby materially misrepresented her criminal history, it is concluded the Petitioner has established just cause for termination of the Respondent's employment with the School District.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida enter a Final Order sustaining the suspension and dismissal of the Respondent from her employment with the School District.

DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 28th day of August, 1998.

COPIES FURNISHED:

Dr. Joan Kowal Superintendent

School District of Palm Beach County 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406

Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Virginia Tanner-Otts, Esquire

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Lee Rosenberg, Esquire

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Mamie Washington Kendall, Esquire

141 South Main Street, Suite 211 Belle Glade, Florida 33430

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: 98-000617

Orders for Case No: 98-000617