STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 18-5044

SHARON CONEY,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings ("DOAH") for final hearing by video teleconference on October 30, 2018, at sites in Tallahassee and Key West, Florida.

APPEARANCES

For Petitioner: Gaelan P. Jones, Esquire

Monroe County School Board

81990 Overseas Highway, 3rd Floor Islamorada, Florida 33036

For Respondent: Sharon Coney, pro se

10 Northwest 6th Avenue Homestead, Florida 33030

STATEMENT OF THE ISSUE

Whether the Monroe County School Board ("School Board") may terminate Respondent's employment as a non-instructional food service worker and bus aide based on the results of a five-year level 2 background rescreening, which reflects that Respondent

was adjudicated guilty in 1989 of grand theft, a third-degree

felony.

PRELIMINARY STATEMENT

By correspondence dated August 22, 2018, the School Board notified Respondent of its intent to suspend and terminate her employment as a food service worker and bus aide because of her criminal history reflected on a five-year level 2 background rescreening. Respondent timely requested an administrative hearing to challenge the School Board's termination. On September 19, 2018, the matter was referred to DOAH to assign an administrative law judge to conduct the final hearing. The referral included the School Board's Administrative Complaint against Respondent, dated September 19, 2018.

On October 2, 2018, the undersigned issued an Order setting this matter for final hearing on October 30, 2018. The final hearing was held as scheduled with both parties present. At the hearing, the School Board presented the testimony of Amy Flaherty. The School Board's Exhibits 1 through 3 were received in evidence. Respondent testified on her own behalf. Respondent did not offer any exhibits into evidence.

On November 27, 2018, the one-volume final hearing Transcript was filed at DOAH. The School Board timely filed a proposed recommended order, which was considered in the

preparation of this Recommended Order. Respondent did not file a proposed recommended order.

Unless otherwise indicated, all statutory references are to the 2018 version of the Florida Statutes.

FINDINGS OF FACT

1. The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Monroe County, Florida.

2. Respondent is a 53-year-old female who was initially hired by the School Board in 2013. At the time of her initial hiring, Respondent was subjected to a criminal background screening. However, the findings of the initial criminal background screening were not presented at hearing.

3. In any event, Respondent was not disqualified based on the initial criminal background screening. Since 2013, Respondent has worked for the School Board as a non-instructional food service worker and bus aide.

4. By all accounts, Respondent has been an exemplary employee throughout her employment with the School Board. Her attendance has been excellent, and on at least one particular occasion, she was named employee of the month at Monroe County High School.

   
   

5. However, on July 31, 2018, because Respondent had direct access to children, she underwent a mandatory five-year criminal background rescreening.

6. On August 1, 2018, the School Board sent correspondence to Respondent informing her that her criminal background rescreening had revealed prior arrests. This same correspondence requested that Respondent provide final dispositions of the arrests by August 9, 2018.

7. Respondent provided the School Board with a final court disposition. Of relevance to the instant proceeding is a disposition which reflects that in 1989, Respondent was adjudicated guilty of grand theft, a third-degree felony.

8. On August 22, 2018, the School Board sent Respondent a letter signed by the superintendent, informing her of the School Board's intent to suspend and terminate her employment because of the 1989 felony grand theft conviction.

9. Respondent has not sought an exemption from disqualification pursuant to section 435.07, Florida Statutes.

10. In paragraph 8 of its proposed recommended order, the School Board acknowledges that: "While Respondent had not applied for such an exemption at the time of the Final Hearing, it is noted that Respondent may have qualified for such an exemption at the discretion of the School Board." (emphasis added).

    
    

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

12. The School Board bears the burden of proving, by a preponderance of the evidence, the justification for its proposed action to terminate Respondent's employment. Cisneros v. Sch.

    Bd. of Miami-Dade Cnty., 990 So. 2d 1179, 1183 (Fla. 3d DCA

    
    

    2008).

    
    

13. As a full-time food service worker and bus aide, Respondent was, at all times material to this matter, a non- instructional "educational support employee" as defined by section 1012.40(1)(a), Florida Statutes.

14. Section 1012.465 governs criminal background screening of non-instructional employees, such as Respondent. Section 1012.465 provides as follows:

    1. Except as provided in s. 1012.467 or

       s. 1012.468, noninstructional school district employees or contractual personnel who are permitted access on school grounds when students are present, who have direct contact with students or who have access to or control of school funds must meet level 2 screening requirements as described in

       s. 1012.32. Contractual personnel shall include any vendor, individual, or entity under contract with a school or the school board.

       
       

    2. Every 5 years following employment or entry into a contract in a capacity described

       
       

       in subsection (1), each person who is so employed or under contract with the school district must meet level 2 screening requirements as described in s. 1012.32, at which time the school district shall request the Department of Law Enforcement to forward the fingerprints to the Federal Bureau of Investigation for the level 2 screening. If, for any reason following employment or entry into a contract in a capacity described in subsection (1), the fingerprints of a person who is so employed or under contract with the school district are not retained by the Department of Law Enforcement under

       s. 1012.32(3)(a) and (b), the person must file a complete set of fingerprints with the district school superintendent of the employing or contracting school district. Upon submission of fingerprints for this purpose, the school district shall request the Department of Law Enforcement to forward the fingerprints to the Federal Bureau of Investigation for the level 2 screening, and the fingerprints shall be retained by the Department of Law Enforcement under

       s. 1012.32(3)(a) and (b). The cost of the state and federal criminal history check required by level 2 screening may be borne by the district school board, the contractor, or the person fingerprinted. Under penalty of perjury, each person who is employed or under contract in a capacity described in subsection (1) must agree to inform his or her employer or the party with whom he or she is under contract within 48 hours if convicted of any disqualifying offense while he or she is employed or under contract in that capacity.

       
       

    3. If it is found that a person who is employed or under contract in a capacity described in subsection (1) does not meet the level 2 requirements, the person shall be immediately suspended from working in that capacity and shall remain suspended until final resolution of any appeals.

       
       

15. In the instant case, it is clear that Respondent did not meet the level 2 background screening requirements because of the 1989 felony grand theft conviction which was discovered on her 2018 rescreening. Accordingly, Respondent is ineligible for employment, and the School Board proved, by a preponderance of the evidence, that Respondent's termination is justified under section 1012.465(3).

16. The School Board also seeks to rely on School Board Policy 4121.01, which requires all employees be subjected to a criminal background check prior to initial employment in order to determine suitability for employment. The policy also requires that employees be re-fingerprinted every five years thereafter.

17. However, the policy does not provide for any proposed disciplinary action in the event the results of a five-year re- fingerprinting reveal a criminal conviction. Respondent complied with the policy when she was re-fingerprinted five years after her initial employment. Accordingly, the School Board failed to prove that Respondent's termination is justified pursuant to Policy 4121.01.1/

18. Finally, the School Board relies on section 435.04 as grounds for Respondent's termination. Level 2 screening requirements are specified in section 435.04. Section 435.04(2) provides, in pertinent part:

    
    

    (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction:

    
    

    * * *

    
    

    (cc) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.

    
    

19. Section 435.07(1)(a) provides, in pertinent part, that:

    
    

    The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

    
    

    1. Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony.

    
    

20. In the instant case, the School Board proved, by a preponderance of the evidence, that Respondent's termination is justified pursuant to section 434.04. Respondent's termination is justified because she was convicted in 1989 of grand theft, a third-degree felony.

21. Nevertheless, in its proposed recommended order, the School Board acknowledges that Respondent may have been entitled

    
    

    to an exemption from disqualification from the head of the agency. However, as of the final hearing, Respondent had not applied for an exemption from disqualification of employment.

22. In the event Respondent applies for an exemption from disqualification pursuant to section 435.07 before the entry of the School Board's Final Order, the School Board should reconsider its proposed termination of Respondent. Moreover, in the event Respondent applies for an exemption from disqualification pursuant to section 435.07, and the head of the agency denies the application, Respondent should be given a clear point of entry to initiate a separate administrative proceeding in which to challenge the School Board's action. However, these issues are beyond the scope of this case.

23. In sum, the School Board's termination of Respondent based on the evidence presented at the hearing is justified.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Monroe County School Board, enter a final order upholding Respondent's termination.

DONE AND ENTERED this 19th day of December, 2018, in Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 19th day of December, 2018.

ENDNOTE

1/ School Board Policy 4121.01 was not received in evidence as an exhibit at the hearing. However, the policy is quoted verbatim in the Administrative Complaint, and the undersigned has taken official recognition of the policy.

Policy 4121.01, entitled CRIMINAL BACKGROUND AND EMPLOYMENT, provides as follows:

The safety of its students is of paramount importance to the District. Consistent with this concern for student safety, and in compliance with Florida law, the District requires that, prior to initial employment, all candidates for all positions shall be subject to a criminal background check to determine suitability for employment. The application for employment shall inform the applicants that they are subject to criminal background checks. All current employees must be re-fingerprinted every five (5) years, and must self-report arrests for serious offenses as listed in AP 4121.01

The information contained in the reports received concerning an employee's criminal background check shall be confidential.

COPIES FURNISHED:

Gaelan P. Jones, Esquire Monroe County School Board

81990 Overseas Highway, 3rd Floor Islamorada, Florida 33036 (eServed)

Sharon Coney

810 Northwest 6th Avenue Homestead, Florida 33030

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Mark T. Porter, Superintendent Monroe County School District

241 Trumbo Road

Key West, Florida 33040

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: 18-005044

Orders for Case No: 18-005044