STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINELLAS COUNTY SCHOOL BOARD,
Petitioner,
vs.
QUAN R. BROWN,
Respondent.
)
)
)
)
) Case No. 11-3380TTS
)
)
)
)
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on October 6, 2011, in Largo, Florida, before Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Laurie A. Dart, Esquire
Pinellas County Schools
301 Fourth Street, Southwest Post Office Box 2942
Largo, Florida 33779-2942
For Respondent: Quan R. Brown, pro se
2790 62nd Avenue North, Apartment B St. Petersburg, Florida 33702-6360
STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
PRELIMINARY STATEMENT
By letter dated October 19, 2010, the Pinellas County Superintendent of Schools (superintendent) notified Respondent, Quan R. Brown (Respondent or Mr. Brown) that she intended to recommend Mr. Brown's termination from employment for the reasons set forth in an attached agenda item for the upcoming meeting of the Pinellas County School Board (Petitioner or School Board) at which the recommendation would be made and acted on. The agenda item, thus, served as the administrative complaint setting forth the allegations of fact, the specific School Board policies alleged to have been violated, and the recommended discipline.
The superintendent's letter informed Mr. Brown that if the School Board adopted the recommended action, Mr. Brown would be terminated unless he timely requested an administrative hearing to contest the action, in which case the termination would not be final pending the outcome of the hearing process. Mr. Brown timely made known to the School Board that he wanted a hearing to challenge the proposed termination of his employment.
Apparently, there was some delay in his submission of a written hearing request, but the School Board is not contesting the timeliness of the request for hearing, because Mr. Brown did timely communicate his desire for a hearing, albeit, not in proper form.
As soon as Mr. Brown submitted a written request for a hearing, on July 11, 2011, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.
At the final hearing, Petitioner presented the testimony of Officer Doug Dilla with the St. Petersburg Police Department; Reta Newman, director of Pinellas County Forensic Laboratory; Valencia Walker, administrator of the School Board's Office of Professional Standards (OPS); and Respondent. Petitioner's Exhibits 1 (in part),1/ 2 (in part),2/ and 3 through 8 were admitted in evidence. Respondent testified in his own behalf, and Respondent's Exhibit 1 was admitted in evidence.
At the conclusion of Petitioner's case, Petitioner moved to amend the administrative complaint document to add a charge for a violation of School Board Policy 4140A(4), which was not one of the alleged violations in the agenda item served on
Mr. Brown, but which was addressed by the witnesses in their testimony and in the exhibits. Mr. Brown was given an opportunity to object to the late amendment of the administrative complaint to conform to the evidence, but he stated that he had no objection, and so Petitioner was granted leave to amend the administrative complaint accordingly.
The one-volume Transcript of the final hearing was filed on October 17, 2011. Petitioner timely filed its Proposed Recommended Order. As of the date of this Recommended Order, Respondent has made no post-hearing filing. Petitioner's submission has been considered, along with the testimony and documentary evidence, in the preparation of this Recommended
Order.
FINDINGS OF FACT
Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school.
On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010.
Mr. Brown self-reported the arrest and charges to
the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However,
after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process.
As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty);
A.3. (committing or conviction of a criminal act--felony);
A.21 (conduct unbecoming a board employee that brings the
district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office).
On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process.
The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla.
Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division.
At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent.
The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name.
Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan."
On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board.
In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived.
Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and
approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department.
Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine.
After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker.
According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According
to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action.
While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy.
Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number.
Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas.
Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question.
Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100.
Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine.
The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test.
The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The
original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence.
No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis.
The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test.
Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any
other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine.
Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him.
Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the
information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription.
Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has contractual jurisdiction over the parties and the subject matter of this proceeding. §§ 120.65, 120.569 and 120.57(1), Fla. Stat. (2010).3/
In this proceeding, Petitioner seeks to terminate Respondent's employment. Petitioner bears the burden of proof, and the standard of proof is by a preponderance of the evidence.
§ 120.57(1)(j); McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d
476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).
District school boards have the authority to "operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law."
§ 1001.32(2), Fla. Stat., implementing Art. IX, § 4(b), Fla. Const.
Pursuant to section 1012.27(5), Florida Statutes, the superintendent is authorized to recommend to the School Board that an employee of the School Board should be suspended or dismissed from employment. The School Board, in turn, has the authority to suspend or terminate School Board employees pursuant to section 1012.22(1)(f).
Pursuant to section 1012.40, Respondent is an "educational support employee," who may be terminated by the School Board for reasons stated in the applicable collective bargaining agreement, or in School Board rule "in cases where a collective bargaining agreement does not exist."
§ 1012.40(2)(b).
Neither party offered into evidence the collective bargaining agreement that apparently exists for educational support employees. However, the School Board's representative testified that she is familiar with the applicable collective
bargaining agreement and that Policy 4140, Discipline of Support Staff, is consistent with the terms of the applicable collective bargaining agreement. No evidence to the contrary was presented. Thus, although the better practice would have been for the School Board to offer into evidence the relevant portions of the collective bargaining agreement, the undersigned concludes that based on the unrebutted testimony, Policy 4140 sets forth reasons for termination that are in accord with the applicable collective bargaining agreement.
The School Board has discretion in defining what constitutes just cause for taking disciplinary action against employees, including suspension or termination. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217, 218 (Fla. 2d DCA 1994) (Blue, J. concurring); see also § 1012.23(1)(authorizing district school boards to adopt rules governing personnel matters, except as otherwise provided by law or the State Constitution).
The School Board has exercised its discretion by promulgating Policy 4140, which begins with the general proposition that support staff "may be dismissed for cause." Policy 4140 describes the general approach of progressive discipline, which may include such steps as written counseling/conference summary, caution, reprimand, suspension without pay, and dismissal. However, the policy makes clear
that not all steps necessarily are required in progression. Rather, the "severity of the problem or employee conduct will determine whether all steps will be followed or a recommendation will be made for suspension without pay or dismissal."
Policy 4140 enumerates specific offenses that are grounds for discipline, and for each offense, a penalty range is codified.
The administrative complaint charged Respondent with violations of the following offenses enumerated in Policy 4140, for which the indicated penalty or penalty range is provided:
Offense No. | Description | Penalty Range |
A.2.a. | Illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty | Reprimand- Dismissal |
A.2.b. | Illegal sale of drugs whether on or off duty | Dismissal |
A.2.c. | Possession, use, or being under the influence of illegal drugs while off duty | Reprimand- Dismissal |
A.3. | Committing or conviction* of a criminal act-- felony | Suspension- Dismissal |
A.21. | Conduct unbecoming a Board employee that brings the District into disrepute or that disrupts the orderly processes of the District | Caution- Dismissal |
A.22. Misconduct or misconduct Caution- in office Dismissal
As noted in the Preliminary Statement, without objection by Respondent, Petitioner was granted leave to amend its charging document after the close of testimony, to add a charge that had been discussed by several witnesses, including Respondent. By this amendment, Respondent was also charged with committing offense A.4., described as follows: "Committing or conviction* of a criminal act--misdemeanor" with a designated penalty range of reprimand to dismissal.
The asterisk following the word "conviction" in the description of both offenses A.3. (felony) and A.4. (misdemeanor) is explained after a corresponding asterisk at the end of the list of offenses in Policy 4140, as follows:
*Conviction shall mean a finding of guilt, a plea of guilty, a plea of nolo contendere (no contest), or entering a Pre-Trial Intervention or diversion program, whether or not there is a formal adjudication of guilt.
The School Board proved by a preponderance of the evidence that Respondent committed offense A.2.a., by possessing illegal drugs while off duty. The greater weight of the credible evidence established that Mr. Brown responded to a phone call request to purchase cocaine and that Mr. Brown went to the location at which he was told to meet the purchaser with two small baggies of cocaine in his possession.
In addition to violating A.2.a. by possessing cocaine, Respondent's guilty plea stands as an admission that he is guilty of two counts of possession of drugs without a prescription. While Respondent claims that the charges were "fabricated" as a compromise to reduced offenses from the original charges, Respondent's testimony disclaiming any guilt for possessing illegal drugs was not credible.
The School Board proved by a preponderance of the evidence that Respondent committed offense A.2.b., by the illegal sale of drugs while off duty. The greater weight of the credible evidence established that Mr. Brown offered to sell, and did sell, the two small baggies of cocaine for $100. Without realizing it, he made the bad choice of selling the drugs to an undercover agent, because the purchase was arranged and the introduction made by someone who had purchased drugs from Mr. Brown before.
The School Board proved by a preponderance of the evidence that Respondent committed offense A.2.c., by possessing illegal drugs while off duty. This offense is a variant of offense A.2.a., and the same rationale set forth in paragraphs
42 and 43 above, applies to this offense as well.
The School Board proved by a preponderance of the evidence that Respondent committed offense A.3., by committing two criminal acts that are felonies, even though Respondent was
not convicted of any felony. As explained at the end of Policy 4140 in section E. and as explained to Mr. Brown at the final hearing, "[t]he standards of proof in criminal and administrative proceedings differ. Acquittal in a criminal case shall not preclude the prosecution of a disciplinary action pursuant to Board policy." When judged by a preponderance of the evidence standard, the greater weight of the more credible evidence established that Respondent committed the acts of possession of cocaine and sale of cocaine, which are criminal acts classified as felonies.
The School Board proved by a preponderance of the evidence that Respondent committed offense A.4., by being convicted of a criminal act that was a misdemeanor. Respondent pled guilty and was adjudicated guilty based on his plea to two misdemeanor counts of possessing drugs without a prescription. Each count is an offense that calls for discipline within the penalty range of reprimand to dismissal.
The School Board did not meet its burden of proving offense A.21., described as conduct unbecoming an employee and which brings the District into disrepute or disrupts the orderly processes of the District. While the first part of this offense was established, no evidence was presented to address how
Mr. Brown's conduct away from school and off duty brings the District into disrepute. There was no evidence of any publicity
of Mr. Brown's arrest or charges that linked him to the District. Similarly, no evidence was presented to suggest how Mr. Brown's conduct disrupted the orderly processes of the District.
For similar reasons, the School Board did not meet its burden of proving misconduct in office, part of offense A.22. Absent evidence as to how the School Board interprets and applies this phrase in its Policy 4140, the definition of "misconduct in office" in Florida Administrative Code Rule
6B-4.009(3) is instructive, because that rule defines the phrase for purposes of establishing "just cause" to discipline instructional staff under section 1012.33(1)(a). The rule defines "misconduct in office" as a violation of the Code of Ethics of the Education Profession as adopted in Florida Administrative Code Rule 6B-1.001 (Code of Ethics) and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Florida Administrative Code Rule
6B-1.006 (Principles of Professional Conduct), which is so serious as to impair the individual's effectiveness in the school system. The School Board did not present evidence under this definition, nor were violations of the either the Code of Ethics or the Principles of Professional Conduct charged.
Respondent's off-duty conduct away from school grounds and not involving any student does not constitute misconduct in
office, as those words are used in their normal meaning. Smith v. Sch. Bd. of Leon Cnty., 405 So. 2d 183, 184-185 (Fla. 1st DCA 1981); Brevard Cnty. Sch. Bd. v. Mullins, Case No. 96-4588 (Fla. DOAH June 27, 1997) (Respondent's off-duty conduct, during summer recess, did not constitute misconduct in office).
The School Board arguably proved that Respondent engaged in "misconduct," which is the first part of offense A.22. However, no explanation was provided by the School Board representative as to how the School Board
interprets and applies the term "misconduct" as contrasted with "misconduct in office." But it is unnecessary to debate whether Respondent's conduct, specifically prohibited by the offenses described above, might also be considered under the more general umbrella of "misconduct." This charge should be considered subsumed within the more specific charges addressed above.
The next step is to determine the appropriate penalty to recommend for the established violations. Policy 4140 describes the mitigating and aggravating circumstances to be considered "when determining the appropriate penalty within a penalty range[.]" For some offenses, such as A.2.b., there is no penalty range, but rather, a single penalty is provided, that of dismissal. For this offense, it is not necessary to consider mitigating and aggravating circumstances; the penalty of dismissal is required.
If there had not been an offense established under A.2.b., then mitigating and aggravating circumstances would be considered to determine the appropriate penalty for the other established offenses. For offenses A.2.a., A.2.c., A.3.,
and A.4., the penalty ranges are either from reprimand to dismissal or from suspension to dismissal.
Due consideration has been given to the mitigating and aggravating circumstances, including the disciplinary history of Respondent and employee evaluations. Aggravating factors include the fact that Respondent previously received a reprimand for misconduct in office in the same year in which he received a "needs improvement" evaluation, which was also the same year as Respondent's arrest. The pecuniary benefit from Respondent's misconduct is another aggravating factor to consider. The absence of student and school involvement is a mitigating factor. As the School Board representative testified, primary emphasis was given to the severity of the offenses, and this must be considered an aggravating factor.
Even if Respondent's only offenses were being convicted of two misdemeanor counts of possessing drugs without a prescription, the penalty of dismissal is justifiable. The penalty range for a single offense of being convicted of a misdemeanor is from reprimand to dismissal. Respondent has previously received a reprimand for other misconduct.
Therefore, the penalty range in the progression of disciplinary action would be from suspension to dismissal. Consideration of the other aggravating factors tips the scale toward dismissal.
Upon consideration of the multiple offenses established by the School Board, their penalties, and the mitigating and aggravating circumstances, the appropriate penalty is dismissal.
Petitioner proved by a preponderance of the competent, substantial, and more credible evidence that there is just cause for Respondent's termination.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown.
DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2011.
ENDNOTES
1/ Petitioner's proposed Exhibit 1 contained two separate reports from the St. Petersburg Police Department. The first report was the Investigative Report dated August 6, 2008, which was prepared by Officer Dilla. Officer Dilla testified at the final hearing to the facts and to his observations made on August 4, 2008, which he recorded in the five-page report completed two days later. This five-page report was admitted in evidence without objection as Petitioner's Exhibit 1. However, the second report tendered as part of Exhibit 1 was a three-page arrest report dated February 5, 2010, which was not prepared by Officer Dilla and was not authenticated or corroborated by any witness testifying at the final hearing. Thus, the second report, which had been offered as part of Exhibit 1, was not admitted in evidence, nor was it proffered, and thus, is not included as part of the record.
2/ As tendered, Petitioner's Exhibit 2 contained two separate compilations of documents regarding laboratory analyses performed by the Pinellas County Forensic Laboratory. The first compilation included four pages related to testing of suspected cocaine powder received on September 10, 2010, from a representative of the St. Petersburg Police Department whose signature looks like E. Hiznay, tested, and which was returned after testing to E. Hiznay on September 24, 2010. This 2010 testing was done by Reta Newman, the Forensic Lab director, who confirmed that the samples were delivered by Eddie Hiznay of the St. Petersburg Police Department. Ms. Newman testified to the lab tests she performed and recorded contemporaneously in handwritten notes included in the document compilation, and she also prepared the report of the results of her analysis. The four-page compilation of documents regarding the 2010 testing was admitted in evidence as Petitioner's Exhibit 2, without objection by Respondent. However, also offered as part of Petitioner's Exhibit 2 was a separate two-page compilation, relating to testing of suspected cocaine powder received on August 8, 2008, from the same representative of the
St. Petersburg Police Department, E. Hiznay, tested, and returned to E. Hiznay on August 22, 2008. Included in this compilation was the report of the results of the lab analysis, signed by Lonnie V. Jones II, forensic chemist. Mr. Jones was
not a witness at the final hearing, and Ms. Newman was unable to lay a sufficient predicate for the admission into evidence of the documents related to the 2008 testing done by Mr. Jones.
Thus, the two-page compilation relating to the 2008 testing was not admitted in evidence, nor was it proffered, and, therefore, is not included as part of the record.
3/ All statutory references are to the Florida Statutes (2010), the law in effect when the School Board initiated disciplinary action against Respondent. It is noted that some of the events giving rise to this disciplinary action occurred when the 2008 laws were in effect, but some, notably Respondent's conviction, occurred while the 2010 laws were in effect. This distinction is immaterial here, because there were no material changes during these years to the statutory and rule provisions relied on in the charges against Respondent.
COPIES FURNISHED:
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Dr. John A. Stewart, Interim Superintendent Pinellas County School Board
301 Fourth Street, Southwest Largo, Florida 33770-2942
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Laurie A. Dart, Esquire Pinellas County Schools
301 Fourth Street, Southwest Post Office Box 2942
Largo, Florida 33779-2942
Quan R. Brown
2790 62nd Avenue North, Apartment B St. Petersburg, Florida 33702-6360
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 12, 2012 | Agency Final Order | |
| Nov. 29, 2011 | Recommended Order | Petitioner had just cause to terminate Respondent, who sold cocaine to an undercover officer, then pled guilty to lesser offenses--two misdemeanor counts of possessing drugs without prescriptions. |
PALM BEACH COUNTY SCHOOL BOARD vs MICHAEL LAWSON, 11-003380TTS (2011)
BAY COUNTY SCHOOL BOARD vs MARVIN JONES, 11-003380TTS (2011)
MARY ANN TALMADGE AND DUNBAR ELECTRIC SUPPLY, INC. vs DADE COUNTY SCHOOL BOARD, 11-003380TTS (2011)
BETTY CASTOR, AS COMMISSIONER OF EDUCATION vs WILLIAM DEAN LONG, 11-003380TTS (2011)
