STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4131

)

HOWARD J. GREER, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on December 18, 1987 in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented by:

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618-4688

For Respondent: James R. Stearns, Esquire

1370 Pinehurst Road

Dunedin, Florida 34698

The School Board of Pinellas County (Petitioner) called Lewis S. Glass, Supervisor of Risk Management and Loss Control, Nancy Zambito, Director of Personnel Services, and Dr. Ronald F. Stone, Executive Assistant Superintendent for Human Resources, to testify and also introduced forty exhibits. Howard J. Greer (Respondent) testified on his own behalf and also called Robert Russell, Plant Operations Supervisor, William J. Johnson, Head Plant Operator, and Arthur

1. Greer, Respondent's brother, to A testify. No transcript of the hearing has been filed. At the request of the parties, additional time was allowed to file proposed findings of fact, and a ruling on each proposed finding of fact which was filed is included in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986.

      
      

   2. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others.

   3. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor.

      
      

   4. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done.

      
      

   5. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed.

      
      

   6. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that:

      
      

      . . . except as expressly provided in this agreement, the determination and administration of school policy, the

      operation and management of the schools and the direction of employees are vested exclusively in the Board.

      
      

   7. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2).

      
      

   8. On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old.

      
      

   9. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job.

      
      

   10. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system.

       
       

   11. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a

       public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system.

       
       

   12. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child.

       
       

   13. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child.

       
       

   14. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge.

       
       

   15. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The parties agree that Petitioner has the burden of proof in this proceeding, and the standard which Petitioner must meet is a preponderance of the evidence. South Florida Water Management District v. Kaluwe, 459 So.2nd 390 (Fla. 4th DCA 1984); Section 230.23(5)(f), Florida Statutes.

       
       

   17. It is undisputed that a judgement of conviction in a criminal prosecution cannot be introduced into evidence in a civil action to establish the truth of the facts upon which it was rendered. However, such a judgement in a criminal case based upon a plea of guilty can be introduced in a civil action as an admission against interest. Nunez v. Gonzalez, 456 So.2d 1336 (Fla. 2nd DCA 1984). In Nunez, the defendant in a criminal prosecution arising from the death of her ex-husband, entered a plea of guilty to the lesser charge of manslaughter, but then sought to have her plea excluded from consideration in a civil proceeding involving life insurance benefits which were payable upon the death of her ex-husband. In upholding the ruling of the lower court which entered judgement against her on the insurance claim, the District Court adopted the following reasoning:

       
       

       In civil actions where one of the issues is the guilt of a person convicted of a criminal offense, or some fact necessarily involved in the determination of such

       guilt, it is proper to admit evidence of that person's plea of guilty to the criminal offense. The guilty plea is admissible as a declaration against interest and may be considered by the finder of fact, but it does not as a matter of law establish the truth of the facts upon which the judgment of guilt was rendered.

       * * *

       . . . . Having gained legal benefit of her negotiated plea bargain to a plea of manslaughter she cannot be heard to state that the legal effect of this plea is not applicable in civil proceedings. 456 So.2d 1338.

       
       

   18. Petitioner has established, and Respondent does not dispute, that he entered a plea of guilty to simple battery involving a child under the age of

1. The child is currently six years old. This is accepted as an admission against interest, although at hearing Respondent, and his brother, sought to explain this plea while maintaining his innocence.

   
   

   1. No direct evidence of the Respondent's actions and involvement in the incident which ultimately resulted in his plea of guilty to a simple battery was offered. Respondent denied any involvement or improper touching of the child. Hearsay is admissible in an administrative proceeding to supplement or explain other evidence in the record, but a finding of fact cannot be based solely on hearsay. Section 120.58(1)(a), Florida Statutes. In this case, Petitioner offered seven depositions taken by Respondent in preparation for the criminal case in order to supplement and confirm Respondent's plea of guilty. While these depositions would not be sufficient by themselves, they do explain, supplement and confirm Respondent's plea of guilty. When considered with his admission against interest, the evidence presented by Petitioner outweighs Respondent's denial at hearing, and is sufficient to conclude that Petitioner has met its burden, by a preponderance of the evidence, with regard to Respondent's guilt of a simple battery against a child.

      
      

   2. Petitioner has not met its burden, however, with regard to the charge of poor performance since it only presented evidence consisting of prior evaluations, the most recent of which was three years old at the time of hearing, in support of this charge. In contrast, Respondent produced both his immediate supervisor and the Plant Operations Supervisor for the school district who testified that he is, and has been, a very good, loyal and dependable worker. While prior evaluations indicated a need to improve, it is evident that Respondent's performance did in fact improve.

      
      

   3. Although the Superintendent has recommended that Respondent be dismissed, a suspension without pay from January, 1987 until the entry of a Final Order is more consistent, under the facts in this case, with the concept and practice of "progressive" discipline which is specifically recognized in the IBFO agreement.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be

taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator.

DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131

Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1.

3-5 Adopted in Finding of Fact 2.

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 4.

3. Rejected as not based on competent substantial evidence.

4. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5.

12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6.

1. Adopted in Finding of Fact 7.

2. Adopted in Finding of Fact 8.

17-18 Rejected as unnecessary due to Finding of Fact 9.

1. Adopted in Finding of Fact 9.

2. Adopted in Finding of Fact 8.

3. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10.

1. Adopted in Finding of Fact 11.

2. Rejected as unnecessary and cumulative due to Finding of Fact 9.

Rulings on Respondent's Proposed Findings of Fact:

1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9.

1. Rejected as simply a statement about evidence which was not presented; and therefore as

2. unnecessary.

Adopted in Findings of Fact 2-5, 13 and 14.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Post Office Box 4688

Clearwater, Florida 34618-4688

James R. Stearns, Esquire 1370 Pinehurst Road

Dunedin, Florida 34698

Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688

Clearwater, Florida 34618-4688

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Petitioner,

v. CASE NO. 87-4131

HOWARD J. GREER,

Respondent.

/

FINAL ORDER

WHEREAS, the Superintendent of Schools for Pinellas County, by letter dated July 9, 1987, and subsequently amended on November 18, 1987, recommended to the School Board of Pinellas County, at its meeting of August 12, 1987, that one HOWARD J. GREER, an employee of the School Board of Pinellas County, be dismissed from his employment, and setting forth as grounds for that recommendation, the plea of guilty to a charge of Battery involving a young child by HOWARD GREER, the commission of a battery of a young child by HOWARD GREER, and the accumulated effect of poor performance by HOWARD GREER in jobs held with the Pinellas County School Board; and

WHEREAS, copies of said letters were duly delivered to HOWARD J. GREER and HOWARD J. GREER demanded an Administrative Hearing pursuant to 12O.57, Fla.

Stat., and

WHEREAS, the State of Florida, Department of Administration, Division of Administrative Hearings was requested to supply a Hearing Officer to determine the disputed issues of fact and to enter a Recommended Order, and

WHEREAS, a hearing was conducted before the Honorable Donald D. Conn, Hearing Officer of the Division of Administrative Hearings, on December 18, 1987, in Clearwater, Florida, and

WHEREAS, the said Honorable Donald D. Conn, Hearing Officer, entered a Recommended Order on February 1, 1988, and

WHEREAS, the School Board of Pinellas County has reviewed said Recommended Order and the Record of the hearing conducted on December 18, 1987, including the transcript of the said hearing, the exhibits numbered 1 through 40, introduced at said hearing, the proposed Findings of Fact submitted on behalf of the School Board and HOWARD J. GREER, and the Hearing Officer's Recommended Order, it is

ORDERED and ADJUDGED, that the Hearing Officer's Findings of Fact numbered

1 through 15 are hereby accepted and adopted and incorporated into this Final Order. It is further

ORDERED and ADJUDGED, that the Hearing Officer's Conclusions of Law, with the exception of the final paragraph of the section of the Recommended Order entitled "Conclusions of Law", are hereby accepted and adopted and incorporated into this Final Order. It is further

ORDERED and ADJUDGED, that the Hearing Officer's conclusion that suspension without pay for HOWARD GREER for January, 1987, until the entry of a Final Order in this cause, is more consistent under the facts of this case with the concept and practice of progressive discipline and the Hearing Officer's recommendation that Respondent be suspended without pay from January, 1987, until the entry of a Final Order herein, are hereby rejected for the following reasons:

1. Progressive discipline as set forth in Article 29 of the Collective Bargaining Agreement with the International Brotherhood of Firemen and Oilers has been followed in the case of HOWARD GREER, as indicated by the testimony of Dr. Ron Stone at the Administrative Hearing, as found on pages 32 through 35 of the transcript of said hearing, and as shown by exhibits 28, 29, 30, 31, 32, 33, and 34, introduced at the aforementioned Administrative Hearing.

   
   

2. The further employment of HOWARD J. GREER, following his guilty plea to the charge of a Battery of a child of school age creates a substantial potential liability to the School Board of Pinellas County, as indicated by the testimony of Lewis Glass at the Administrative Hearing conducted in this cause, as found on page 9, lines 20 through 25, page 10, lines 7 through 12, and 17 through 24, page 11 and page 12, lines 1 through 2, and as set forth on page 10 of the Petitioner's proposed Findings of Fact, Conclusions of Law and Supporting Memorandum.

   
   

3. School Board employees are to refrain from illegally touching or striking children in any way because the School Board is in the business of providing a safe environment for children to learn in, as indicated by the testimony of Dr. Ronald Stone at the Administrative Hearing as found on page 35, lines 14 through 22, and the testimony of Nancy Zambito at the Administrative Hearing, as found on page 19, lines 22 through 25, and page 20, lines 1 through

   5 of the transcript of the testimony at said Administrative Hearing.

4. There is no appropriate placement for HOWARD GREER within the Pinellas County school system, as shown by the Hearing Officer's recommended Finding of Fact number 10 and the testimony of Dr. Ronald Stone at the Administrative Hearing as found on page 34, lines 11 through 23 of the transcript of said Administrative Hearing.

IT IS FURTHER ORDERED AND ADJUDGED, that effective April 14, 1988, HOWARD

J. GREER shall be dismissed (terminated) from employment with the Pinellas County School Board. HOWARD J. GREER is hereby informed that he has thirty days from the date of the entry of this Order within which to appeal this decision to the Second District Court of Appeal in Lakeland, Florida, by filing his notice of intent to do so with the Clerk of that Court, or with Bruce P. Taylor, Esquire, School Board Attorney.

DATED: this 27th day of April, 1988.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

td/fo kbs

Attest: Ex-officio Secretary

Docket for Case No: 87-004131

Orders for Case No: 87-004131