STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3043

)

BERNARDO M. TORRES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer of the Division of Administrative Hearings, on January 30, 1984, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

For Respondent: Hyman Borax and Dawn P.

Bonard, Qualified Representatives Post Office Box 449

Boynton Beach, Florida 33435 ISSUE

Whether respondent, employed as a custodian by the Palm Beach County School Board, should be dismissed on charges of misconduct in office and immorality arising out of his alleged possession of marijuana on the campus of Lake Worth High School.

Background

On September 23, 1983, Thomas J. Mills, Superintendent of Schools for Palm Beach County, Florida ("petitioner"), filed a Petition for Dismissal seeking the termination of Bernardo M. Torres ("respondent") from employment with the Palm Beach County School Board. The petition alleged that respondent was guilty of misconduct in office and immorality arising out of his alleged possession of marijuana on August 10, 1983, on the Lake Worth High School campus, and his resulting arrest by the Lake Worth Police Department.

Respondent requested a hearing and denied the charges. This case was then transferred to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was set for January 30, 1984.

At hearing, petitioner presented the testimony of Kurt W. Auwaerter, Edward Jerkins, David D. Cantley, Carmen Beatriz Chereza and Wilfred Paul LaChance.

Petitioner's Exhibit Nos. 1 throuth 4 and 6 were received into evidence. Respondent testified on his own behalf and introduced one exhibit. Hyman Borax and Dawn P. Bonard were accepted as his qualified representatives. Both parties agreed that Mimi Cabrera could serve as an interpreter, since respondent neither speaks nor understands English.

The transcript of hearing was filed on February 29, 1984. Both parties filed proposed findings of fact and memoranda by March 20, 1984.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

I.

1. Respondent has worked as a custodian at Lake Worth High School since January, 1980. During the 1983-84 school year, he was assigned to work the 3:00

   p.m. 11:30 p.m. shift. His duties included cleaning the top floors of the administration building, the old gymnasium, and the fieldhouse.

   
   

2. His immediate supervisor was Edward Jerkins, Head Custodian at Lake Worth High School. Sometime in April, 1983, Mr. Jerkins received information that respondent and another custodian, Sam Kelly, were allegedly using marijuana while at work. Mr. Jerkins decided to investigate.

   
   

3. On May 26, 1983, at approximately 9:45 p.m. -from the upper level of the administration building which overlooks the old gym area -Mr. Jerkins saw Sam Kelly enter the gym. Mr. Kelly was not assigned to work in this area, and it was not yet break time. Mr. Jerkins then saw respondent, who was sweeping the sidewalk outside of the old gym, enter the gym several minutes later.

   
   

4. Mr. Jerkins waited for approximately one half hour, then proceeded to the old gym. On his way to the gym, he noticed that no one else was in the area.

   
   

5. The doors to the gym were locked. He unlocked the doors with his key and entered the gym. He observed respondent and Sam Kelly sitting in the bleachers, and detected a strong odor of marijuana. Smoke was visible.

   
   

6. Mr. Jerkins accused both men of smoking marijuana. The next day, he reported the incident to David D. Cant1ey, Principal of Lake Worth High School.

   
   

7. After receiving Mr. Jerkins' report, Mr. Cantley warned both men that if they were found using marijuana on the school campus he would recommend to the Superintendent that their employment be terminated.

   
   

   II.

   
   

8. On August 10, 1983, Kurt W. Auwaerter, Detective for the Lake Worth Police Department, was assigned to road patrol duties on the midnight 8:00 a.m. shift. He patrolled the southwest section of Lake Worth which includes the Lake Worth High School campus. On this date, Detective Auwaerter made his first routine check at Lake Worth High School at approximately 12:30 a.m.

9. He dr9ve his police car to the rear of the school where the cafeteria was located. At that point he observed an unidentified man standing by a car. Since no one else was in the area and it was late at night, Detective Auwaerter became suspicious.

   
   

10. He approached the man and asked for identification. The man produced a Florida drivers license, which indicated that he was the respondent. During this exchange, respondent was standing next to the door on the driver's side of the car. The detective, while speaking to respondent, looked into respondent's car with his flashlight. In plain view on the front seat of the car was a tray which held a cigarette "rolling" paper containing a brownish-green vegetable material. The detective recognized this material as marijuana. In addition, when the detective reached into the front seat of the car, he found a small manila envelope containing more of the same substance. He then arrested respondent for possession f marijuana, and transported him to the Lake Worth Police Station.

    
    

11. The detective weighed the substance believed to be marijuana and determined that it weighed less than 20 grams. The substance was field tested and the test showed that it was, in fact, marijuana. 1/

    
    

12. On August 29, 1983, W. Paul LaChance, a schools board investigator, met with respondent and Principal Cantley. Because respondent spoke and understood little English, Carmen Chereza, an Hispanic native and substitute teacher at Lake Worth High School, was asked to interpret. Ms. Chereza translated Mr. LaChance's questions into Spanish and directed them to respondent. When he answered the questions, she repeated his answer in Spanish. If he agreed that it was correct, she translated it into English for Mr. LaChance and Principal Cantley.

    
    

13. Respondent indicated that, sometime after midnight on August 10, 1983, he left work at Lake Worth High School. He approached his vehicle in the school parking lot and saw a small bag on the ground containing what he thought was marijuana. He picked it up and hid it in his car -intending to use it later. A few minutes later, Detective Auwaerter arrested him for possession of marijuana and took him to the Lake Worth Police Department.

    
    

14. Respondent is familiar with marijuana and testified, at hearing, that he believed the substance in the bag to be marijuana.

    
    

15. If a student is caught in possession of illicit drugs on school grounds, disciplinary action is taken. This rule should apply, with equal firmness, to employees of the school system.

    
    

16. Due to the prior warning he received in May, 1983, respondent understood that if he was caught with marijuana on the school campus he would be recommended for termination.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this pro ceeding. Section 120.57(1), Florida Statutes (1983).

    
    

18. Section 230.33(7)(e) , Florida Statutes, authorizes the Superintendent of Schools to recommend the suspension or dismissal of school board employees.

    It is the right of a public employer to take disciplinary action against its employees, for proper cause. Section 447.209, Fla.Stat. (1983). The School Board of Palm Beach County has adopted rules which provide for the conducting of investigations, the determination of probable cause, and the suspension and dismissal of employees. These rules, however, contain no substantive criteria for determining whether an employee should be disciplined. See, 6Gsx50-3.27, Fla.Admin.Code.

    
    

19. The Petition for Dismissal alleges that respondent is guilty of misconduct in office and immorality. These allegations must be proven by evidence as substantial as the consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981)

    
    

20. "Misconduct in office," as commonly understood, is broad enough to encompass any intentional violation of a criminal law by an employee in connection with his employment.

    
    

21. "Immorality" involves the idea of inherent baseness or depravity. In Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 1st DCA 1981) , the court held that a realtor's possession of a controlled substance was not "moral turpitude" under the statute regulating realtors. Compare, Adams v. Professional Practice Council, 406 So.2d 1170 (Fla. 1st DCA 1981) , when the same court found a teacher's possession of marijuana to be gross immorality or an act involving moral turpitude because teachers are charged with providing leadership and are traditionally held to "highter] moral standards." Id. at 1172.

    
    

22. Possession of less than 20 grams of marijuana (cannabis), a controlled substance, is a first degree misdemeanor. Section 893.13(1)(f) , Fla.Stat. (1983) . It is not necessary for respondent to have been convicted or adjudicated guilty of possession of marijuana in order to subject him to disciplinary action for the underlying conduct. See, e.g. Walton v. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984).

    
    

23. Respondent admits that he possessed marijuana, an illicit drug, on the grounds of Lake Worth High School. Although he knew the possession of marijuana was unlawful, he chose to keep it for later use.

    
    

24. It is concluded that the evidence is insufficient to sustain the charge of immorality. The placing in a car of a small amount of marijuana found in a parking lot -- for later use -- has not been shown to be conduct which is inherently vile, base, or depraved. Respondent has neither the leadership nor statutory responsiblities of a teacher and, in fairness, should not be held to the high moral standards which apply to teachers.

    
    

25. The evidence is, however, sufficient to sustain the charge of misconduct in office. He knowingly possessed marijuana on the grounds of Lake Worth High School, his place of employment. Such action constitutes criminal conduct for which the School Board may properly suspend or terminate an employee.

    
    

26. Through prior warnings by his supervisors, respondent was aware that marijuana would not be tolerated on school grounds. Respondent knowingly violated this explicit standard of conduct imposed by his employer. His termination is, therefor, justified.

27. The parties proposed findings of fact have been considered. To the extent their proposed findings are incorporated in this order, they are adopted. Otherwise, they are rejected as unsupported by the evidence-or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be terminated from his employment for misconduct in office.

DONE and ENTERED this percent percentay of May, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of May, 1984.

ENDNOTE

1/ This test result is hearsay and hence can be used only to corroborate or explain other competent evidence. 5120.58, Fla.Stat. (1983) . It was not shown who conducted the field test. The person who conducted it did not testify at hearing.

COPIES FURNISHED:

Abbey G. Hairston, Esquire 3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

Hyman Borax and Dawn P. Bonard, Qualified Representatives

Post Office Box 449

Boynton Beach, Florida 33435

Ralph D. Turlington Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32301

Thomas J. Mills, Superintendent of Schools for Palm Beach County 3323 Belvedere Road

West Palm Beach, Florida 33402

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

THOMAS J. MILLS,

Superintendent of Schools, Petitioner,

vs. CASE NO. 83-245

BERNARDO M. TORRES,

Respondent.

/

FINAL ORDER

THIS MATTER came on to be beard by the School Board of Palm Beach County, Florida, for the purpose of entering a final order in the above-styled cause. In consideration of the recommendations of the Superintendent and the Division of Administrative Hearings (DOAH) Hearing Officer, and the attached exhibits, the School Board finds the following:

BACKGROUND

On January 30, 1984, a hearing was held by the DOAH Hearing Officer in order to take evidence concerning the Superintendent's charge that the Respondent was guilty of misconduct and immorality. The Respondent contended that he was not guilty as charged. On May 11, 1984, the Hearing Officer issued his recommended order (Attached as Exhibit "A") in which he determined that the Respondent knowingly possessed marijuana on the grounds of Lake Worth High School which was in violation of an explicit standard of conduct imposed by his employer. The Hearing Officer recommended that the Respondent be dismissed from employment because his actions constituted misconduct in office.

FINDINGS OF FACT

1. The School Board of Palm Beach County, Florida, has reviewed the entire record and finds that the Hearing Officer's findings of fact are supported by competent substantial evidence in the record and that the proceeding upon which the findings of fact are based comply with the essential requirements of the law.

2. Accordingly, the Hearing Officer's findings of fact are adopted as the School Board's findings of fact. See, 120.57(1)(b)(9), Florida Statutes.

CONCLUSIONS OF LAW

1. The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto.

   
   

2. The School Board of Palm Beach County, Florida, has reviewed the entire record and takes exception to Conclusion of Law #5.

   
   

   The Hearing Officer determined that the Respondent IS not guilty of immorality as alleged by the Superintendent. The Hearing Officer determined that because the Respondent has neither the leadership nor statutory responsibilities of a teacher, he should not be held to the high moral standards which apply to teachers.

   
   

   The Florida State Board of Education has defined immorality as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned... into public... disrespect", Florida State Board of Education Rule 6B-4.09(2). The Respondent's conduct shows a lack of honesty, judgment and integrity, and an unwillingness to abide by the laws of this state and the rule administered by

   the Superintendent and his designees. Possession of marijuana by Respondent did not correspond to the level of professional conduct which was reasonably expected.

   
   

3. In the case at bar, the Hearing Officer determined that there was competent evidence presented at the hearing to show that the Respondent knowingly possessed marijuana at the time of his arrest. In addition, the Respondent had been previously warned by his principal about using marijuana while working. Respondent's actions were continuous and in violation of an order by his superiors to refrain from using an illegal drug on the school grounds.

   
   

4. Therefore, we modify the Hearing Officer's conclusion of law #5 and find that the Respondent is additionally guilty of immorality. The Hearing Officer's findings of fact #5-7 and 10-16 support this conclusion, DeLaurier v. School Board of Dade County, 443 So.2d 1067 (Fla. 3rd DCA, 1984).

   
   

5. The Hearing Officer's conclusion of law #6 is adopted as the School Board's conclusion of law. All other conclusions of law which were immaterial or unnecessary, have been rejected. See, 120.57(1)(b)(9), Florida Statutes.

ORDERED AND ADJUDGED that the employment of the Respondent, Bernardo M. Torres, with the School Board of Palm Beach County, Florida, is hereby terminated effective September 21, 1983, and no back pay, salary, or other benefits of employment shall be granted to Respondent following his suspension without pay on September 7, 1983.

DONE AND ORDERED this 6th day of June, 1984.

CHAIRMAN

SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

(SEAL)

Filed with the Clerk of the School Board this day of , 1984.

*

Clerk

* [document on file with DOAH is undated and unsigned]

Docket for Case No: 83-003043

Orders for Case No: 83-003043