STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 86-0178

)

BOBBY ANDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Miami, Florida on June 23, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For the Petitioner: Frank R. Harder, Esquire

Suite 100, Twin Oaks Bldg. 2780 Galloway Road

Miami, Florida 33165

For the Respondent: Dan J. Bradley, Esquire

DuFresne and Bradley 2950 Southwest 27th Ave.

Coconut Grove, Florida 33133

Background and Procedural Matters

On January 8, 1986, the Dade County School Board authorized the suspension of Bobby Anderson and initiated proceedings for his dismissal. He was informed by letter dated January 9, 1986 and the Formal Notice of Charges dated on March 21, 1986.

Respondent, through his counsel, made a timely request for a formal hearing and the matter was referred to the Division of Administrative Hearings.

At the final hearing, the School Hoard presented three witnesses and a single exhibit, a packet of school board regulations. Mr. Anderson testified in his own behalf and presented one additional witness and one exhibit. Both parties' exhibits were admitted without objection.

The parties asked for, and were given fifteen days from the date the transcript was filed to submit post-hearing briefs and proposed recommended orders. The transcript was filed on August 1, 1986, and to date no post-hearing submittals have been filed.

Issue

The issue in the proceeding is whether Bobby Anderson committed the violations alleged in the School Board letter and Formal Notice of Charges and, if so, what disciplinary action should be taken.

FINDINGS OF FACT

1. The School Board of Dade County, Florida is a duly constituted school board established by Article IX of the Constitution of the State of Florida, and is charged with the duty to operate, control and supervise all free public schools within the Dade County school district pursuant to Article IX and Section 230.03 Florida Statutes. (Prehearing stipulation filed 6/12/86)

   
   

2. At all times material, the Respondent, Bobby Anderson, was employed by the School Board of Dade County as a non-instructional employee, a school resource specialist. (Prehearing stipulation filed 6/12/86, and corrected at transcript, "tr.", page 7) Mr. Anderson was continually employed by the school board from 1976 when he was hired as a school monitor at North Miami Junior High. At the time of his suspension in 1986 he was working as a school resource specialist at Carol City High School. (tr-105,106)

   
   

3. School resource specialists are non-law enforcement employees of the School Hoard's special investigative unit. They are assigned to a school on a full-time basis and supervise school monitors, patrol the halls, report violations of rules and law, and generally maintain a safe learning environment for students and a safe working environment for the staff. (tr-53, 107)

   
   

4. Sometime in November 1985, the Carol City High School Principal and the School Board special investigative unit commenced an investigation of theft of school property and drug usage at the school. (tr-16, 57,75) Daniel McPhaul, the school's audio-visual technician, admitted to the use of cocaine and marijuana at school and the theft of approximately $12,000 to $13,000 of computers, televisions and video equipment from Carol City High School. (tr- 16,18) During the investigation Daniel McPhaul mentioned the names of several teachers and non- instructional staff at the school with whom he claimed to have used drugs. Bobby Anderson was one of the individuals he mentioned. (tr-19)

   Of the approximately nine individuals investigated, all were either recommended for disciplinary action or voluntarily resigned. (tr-77)

   
   

5. Daniel McPhaul claims that he used cocaine on two occasions at Carol City High School with Bobby Anderson: the first occasion was in early 1985, and the second was approximately two months later. On both occasions Mr. Anderson allegedly brought the cocaine unsolicited to the audio-visual room near the library where Daniel McPhaul was working. On both occasions the alleged activity took place behind the locked door of that room, with no other persons present. (tr-20-28,47)

   
   

6. Bobby Anderson and Daniel McPhaul were friends only in the sense that they saw each other frequently at school and talked about sports. They never socialized together outside the work environment. (tr-36,37,119,120) Daniel McPhaul admits that he is a frequent cocaine and marijuana user. He was in a drug rehabilitation program prior to employment at Carol City High School and has been back in a program since the investigation exposed his problems. He has been charged with grand theft but no criminal charges are pending as to the drugs. (tr-25, 29,31,33,50)

7. In the approximate ten years of Bobby Anderson's employment with the Dade County School Board, Daniel McPhaul's allegation is the first complaint of any kind the School Board has received regarding this employee. (tr-65) Mr. Anderson unequivocally denies the allegations. He has never been arrested and has not been contacted by the State's attorney's office with regard to any criminal charges. (tr-118,120-121)

   
   

8. The School Board, whose entire case rested on Daniel McPhaul's testimony at hearing, never elucidated why Bobby Anderson might risk his livelihood and reputation by sharing cocaine on school premises. No monetary motive was suggested, and the two men were not particularly buddies. Mr. McPhaul thinks, but is not sure, he mentioned to Bobby Anderson that he was a cocaine user. (tr-43)

   
   

9. On the other hand, Daniel McPhaul admitted to his motive for getting Bobby Anderson. He erroneously believed that Bobby Anderson reported him to the Assistant Principal for smoking marijuana with a student and that this was the cause of the investigation and Mr. McPhaul's ensuing problems. (tr-46-48) This admission and the failure to explain Mr. Anderson's alleged action fatally eroded his credibility.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57 Florida Statutes.

    
    

11. The Dade County School Board has authority to suspend or dismiss instructional staff and other school employees. Section 230.23(5)(f) Florida Statutes.

    
    

12. The Dade County School Board as a public employer has the right to direct and discipline its employees for proper cause. Section 447.209 Florida Statutes, Jacker v. School Board of Dade County 426 So 2nd 1149 (Fla Ap 3rd DCA 1983)

    
    

13. Bobby Anderson was charged with "misconduct in office, willful neglect of duty, and conduct unbecoming a School Board employee." (see Notice letter dated January 9, 1986) More specifically, the Formal Notice of Charges dated March 21, 1986 alleges that he possessed and/or used, and delivered, cocaine while on the school premises. Substantial testimony at the hearing related to whether or not Bobby Anderson should have reported Daniel McPhaul for smoking marijuana with a student. If that non-action was a basis for the disciplinary action, the notice to the employee is deficient. The Formal Notice of Charges is very specific with regard to the cocaine; it is silent with regard to failure to report. Assuming however, under a broad interpretation of Jacker, supra, that the notice is sufficient, the school board failed to meet its burden of proof that Bobby Anderson had a duty to make the report in the face of his uncertainty that McPhaul was involved.

    
    

14. The school board also failed to prove by a preponderance of evidence that Bobby Anderson used cocaine on school premises. As characterized by counsel for both parties, this case turns entirely on which witness is more credible: Daniel McPhaul or Bobby Anderson. While both men appeared candid, both had a motive to lie: McPhaul out of revenge, and Anderson out of self- interest. In the final analysis, McPhaul's story simply seems unlikely: a ten- year employee with a clean record, with nothing to gain, would not spontaneously

offer to, and use cocaine, with a casual colleague on school premises, while school is in session. Bobby Anderson was the more credible witness.

Based upon the foregoing, it is hereby, RECOMMENDED:

That the charges against Bobby Anderson be dismissed and that he be reinstated to his former position with full back pay.

DONE AND RECOMMENDED this 15th day of September, 1986, at Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986

COPIES FURNISHED:

Frank R. Harder, Esquire Suite 100, Twin Oaks Building 2780 Galloway Road

Miami, Florida 33165

Dan J. Bradley, Esquire DeFresne and Bradley

2950 Southwest 27thss Avenue Coconut Grove, Florida 33133

Docket for Case No: 86-000178

Orders for Case No: 86-000178