STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUPERINTENDENT, )

SCHOOL BOARD OF PINELLAS )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5595

)

JACQUELINE JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on February 4, 1988, at Clearwater, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618-4688

For Respondent: H. Alexander Truluck, Esquire

309 East Main Street, Suite C New Port Richey, Florida 34652

and

Frank Russo, Esquire One 4th Street North

St. Petersburg, Florida 33701

By letter dated November 16, 1987, the Superintendent of Schools, Pinellas County, Petitioner, advised Jacqueline B. Johnson, Respondent, that he would recommend to the Pinellas County School that she be suspended with pay effective November 17, 1987, and suspended without pay effective December 10, 1987, "pending investigation into your recent arrest on drug related, charges." Respondent was advised of her right to request an administrative hearing to contest this proposed action, she requested such a hearing, and this proceeding followed.

At the commencement of the hearing, the parties stipulated to all facts relevant to the issues here presented, and five exhibits were admitted into evidence. Thereafter, Respondent was allowed to call one witness, who presented evidence that Respondent was unaware that controlled substances had been left in her home. For reasons discussed below, this testimony is deemed irrelevant.

The sole issue here presented is whether Respondent may be suspended without pay prior to the time charges are preferred against her alleging some grounds for taking disciplinary action against her.

Proposed recommended orders have been submitted by the parties. Since there is no dispute regarding the operative facts, those proposed findings are accepted. Any proposed finding not included below was deemed irrelevant to the issues presented.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent was on an annual contract with the School Board of Pinellas County (Exhibit 5).

   
   

2. On November 14, 1987, Respondent was arrested by the St. Petersburg police and charged with possession of cocaine (Exhibit 5).

   
   

3. An Information was filed against Respondent in the Circuit Court for the Sixth Judicial Circuit in Pinellas County on December 24, 1987, charging her with possession of controlled substances and drug paraphernalia. Case CR 87- 13779 CFANO-1 (Exhibit 2).

   
   

4. On December 16, 1987, Respondent, by and through her attorney, entered a plea of not guilty to the charges under which she was arrested (Exhibit 3).

   
   

5. A pre-trial hearing in Case 87-13779-CF is scheduled for February 15, 1988 (Exhibit 4).

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings

   
   

7. Section 231.36(1)(a), Florida Statutes, provides in pertinent part:

   
   

   Each person employed as a member of the instructional staff in any school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in Chapter

   230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

   
   

8. Respondent, being on an annual contract and not a continuing contract is governed by this provision.

9. Section 231.36(6)(a), Florida Statutes, provides: Any member of the instructional staff,

   excluding an employee specified in

   subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges

   against him must be based on just cause as provided in paragraph (1)(a).

   Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. When an employee is notified in writing of such charges, he will have 15 days from receipt of the notice to demand, in writing, a hearing to be conducted at his election in accordance with either sub-paragraph a. or sub- subparagraph b. of sub-paragraph (3)(e)4. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68, provided such appeal is filed within 30 days after the decision of the school board.

   
   

10. This provision allows an annual contract teacher to be suspended without pay whenever charges that constitute grounds for dismissal have been preferred against the teacher. These are charges preferred against the teacher by the school board; not charges made by an arresting officer. Had Respondent been charged by the school board with unlawful possession of controlled substances, she could have been suspended without pay pending resolution of those charges. Unlawful possession of controlled substances could well constitute misconduct in office.

    
    

11. Once Respondent's criminal trial is over, and if Respondent is convicted of the offenses of which she is charged, the school board could charge her with having been convicted of a crime involving moral turpitude and suspend her without pay while those charges are pending.

    
    

12. It is a cardinal rule of statutory construction that the entire statute under construction must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia, the reviewing court will determine legislative intent. State v. Gayle Distributors, Inc., 349 So.2d 150 (Fla. 1977). Where legislative intent as evidenced by statute is plain and unambiguous, there is no necessity for any construction or interpretation of the statutes, and courts need only to give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973).

    
    

13. Here the Respondent was notified in writing of the intent of the school board to suspend her without pay and advised of her right to request an administrative hearing to contest that action, but no charges were preferred by the school board. Respondent has had no charges preferred against her to contest, which she is entitled to contest at a Section 120.57(1) hearing. Sub- paragraphs a. and b. of sub-paragraph (3)(e)4 in that portion of the statute above-quoted refer to a Section 120.57(1) proceeding.

    
    

14. It can hardly be contended that the Legislature intended to allow the suspension without pay of an annual contract teacher simply because he or she was arrested by the police and charged with a crime. Those charges could pend for a very long time and wreck economic havoc on the teacher who might well be

    acquitted of the charges. A careful reading of the statute leads to the conclusion that the Legislature intended to allow an annual contract teacher to be suspended without pay by the school board as a result of charges preferred by the school board against the teacher which the teacher is given the right to contest in a Section 120.57(1) hearing.

    
    

15. In support of its position that Respondent was properly suspended without pay, Petitioner cites three cases. However, none of these cases support this position. Of those cases cited, the only involving a Florida decision and relating to Section 231.36, Florida Statutes, is Baker v. School Board of Marion County, 487 F.Supp. 380 (M.D. Fl. 1980). In Baker, the Plaintiff school teachers sought an injunction to stop the school board from suspending them without pay after they had been charged with immorality and misconduct in office by the school board. After noting that a preliminary injunction is an extraordinary equitable remedy, which requires the existence of irreparable injury to call such relief into play, the court held the forthcoming administrative hearing afforded Plaintiffs adequate protection against the loss of pay while suspended. In the instant proceeding, there is no pending administrative hearing on charges constituting grounds for dismissal.

    
    

16. Governing Board of Nicasio School District of Marion County v. Brennan, 95 Cal. Rptr. 712 (Cal. App. 1971) involved an appeal from dismissal as a school teacher following the filing of a complaint against the teacher alleging immoral conduct in advocating the beneficial use of marijuana over an extended period of time by this teacher. The holding in this case is that the evidence supported the finding that by submitting an affidavit she had openly and willfully broken the law, the teacher was unfit to teach and guilty of immoral conduct.

    
    

17. Salvati v. Berks County Board of Assistance, Department of Public Welfare, 474 A.2d 399 (Pa. Cmwlth. 1984).

    
    

18. Salvati, an income maintenance worker, was suspended without pay for

    30 days after being arrested on charges relating to the possession and sale of controlled substances; and be appealed. Civil service laws in Pennsylvania provided for suspending an employee who has been formally charged with criminal conduct which constitutes a felony. These statutes also provided that good cause for suspension included scandalous or disgraceful conduct while on or off duty which may bring the service of the Commonwealth into disrepute. The Court held there was evidence to support either ground and a "mere arrest" can institute good cause for dismissal in Pennsylvania.

    
    

19. The facts and applicable statutes in the instant case are totally different from the cases cited by Petitioner. Baker, supra, supports the conclusion that a teacher may be suspended without pay after being charged with an offense which constitutes good cause for dismissal. It does not support the proposition that a teacher can be suspended without pay pending investigation of charges upon which the teacher was arrested.

    
    

20. Having preferred no charges against the teacher, the school board cannot suspend her without pay.

    
    

21. From the foregoing, it is concluded that an annual contract teacher may be suspended from duty without pay only after charges have been preferred against the teacher by her employer and after advising the teacher of the right to challenge the charges in a Section 120.57(1) proceeding, either before the school board or a hearing officer from the Division of Administrative Hearings.

Since no charges were here preferred against Respondent by the school board, the latter was without authority to suspend Jacqueline Johnson from duty without pay. It is

Recommended that Jacqueline Johnson be restored to duty with pay and recompensed for all pay withheld since the unauthorized suspension without pay.

ENTERED this 16th day of February, 1988, in Tallahassee, Florida.

K. N. AYERS 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 16th day of February, 1988.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 34618-4688

H. Alexander Truluck, Esquire

39 East Main Street Suite C

New Port Richey, Florida 34652

Scott Rose Superintendent

School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 34618-4688

Sydney H. McKenzie Department of Education General Counsel

Knott Building Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 87-5595

JACQUELINE JOHNSON,

Respondent.

/

FINAL ORDER

WHEREAS, the Superintendent of Schools for Pinellas County, by means of a letter dated November 16, 1987, recommended to the School Board of Pinellas County, Florida, that a teacher on annual contract, one JACQUELINE JOHNSON, be suspended without pay effective December 10, 1987, pending investigation of her arrest on a drug-related offense, and

WHEREAS, said letter was duly delivered to JACQUELINE JOHNSON, and WHEREAS, said JACQUELINE JOHNSON requested an Administrative Hearing

pursuant to Section 120.57, Fla. Stat., and

WHEREAS, the School Board of Pinellas County proceeded to suspend JACQUELINE JOHNSON without pay effective December 10, 1987, and requested the Division of Administrative Hearings to conduct an Administrative Hearing of the disputed issues in this case, and

WHEREAS, an Administrative Hearing was held on February 4, 1988, before the Honorable K. N. Ayers, Hearing Officer, and

WHEREAS, the Honorable K. N. Ayers has submitted a Recommended Order dated February 16, 1988, and

WHEREAS, the School Board of Pinellas County has reviewed said Recommended Order together with the entire Record of the Administrative Hearing conducted on February 4, 1988, including the Recommended Order, the proposed Findings of Fact submitted by Petitioner and Respondent, the transcript of the hearing, and the exhibits introduced into evidence numbered 1 through 5. It is therefore

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

1 through 5 are hereby accepted, adopted, and incorporated by reference herein. It is further

ORDERED AND ADJUDGED, that the Hearing Officer's Conclusions of Law that an arrest for a felony drug offense does not constitute good cause to suspend an annual contract teacher without pay, pending investigation into said arrest, and his recommendation that JACQUELINE JOHNSON be reinstated and receive pay for the period of her suspension, are hereby rejected, and it is concluded that the investigation into an arrest for a felony drug offense does constitute good cause for suspension without pay of an annual contract teacher for the following reasons:

1. Unlawful possession of controlled substances could well constitute grounds for dismissal (the Hearing Officer's Recommended Order, page 4).

   
   

2. The arrest of JACQUELINE JOHNSON for felony possession of a controlled substance is based on a sworn affidavit of a police officer of the City of St. Petersburg (Petitioner's Exhibit 1).

   
   

3. JACQUELINE JOHNSON has been formally charged by way of an Information with Possession of Cocaine, Marijuana, and Marijuana Paraphernalia, and said charges are based upon facts that have been sworn to as true, and which if true, will constitute the offense charged (Petitioner's Exhibit 2).

   
   

   The suspension of JACQUELINE JOHNSON without pay was therefore based on good cause and was not arbitrary or capricious. It is further

   
   

   ORDERED AND ADJUDGED, that the suspension, without pay, of JACQUELINE JOHNSON, from her status as an annual contract teacher for the 1987-88 school year, effective from December 10, 1987, to the date of her subsequent dismissal on March 23, 1988, is hereby confirmed for the reasons above numbered 1 through

4. It is hereby further

ORDERED AND ADJUDGED that JACQUELINE JOHNSON shall not be given back pay for the period of said suspension.

JACQUELINE JOHNSON is hereby notified that she has the right to appeal this Order by filing her notice of intent to do so with the Second District Court of Appeal, in Lakeland, Florida, or with Bruce P. Tayor, School Board Attorney, within thirty days of the date of this Order.

DATED: this 13th day of April, 1988.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

td/io2 kbs

Attest: Ex-officio Secretary

Docket for Case No: 87-005595

Orders for Case No: 87-005595