STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1441

)

WILLIAM M. KENNY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on December 14, 1988 in west Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

Attorney for Petitioner

School Board of Palm Beach County, Florida 3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

For Respondent: Dawn Bonard

Qualified Representative Post Office Box 449

Boynton Beach, Florida 33435 BACKGROUND

By administrative complaint, Petitioner charged Respondent, a roofer employed by Petitioner, with violations of Petitioner's administrative directives which are alleged to be sufficient to support termination of Respondent's employment. The charged violations were misconduct, immoral conduct and conviction of a crime of moral turpitude. Respondent requested a formal administrative hearing and this proceeding ensued.

At the final hearing, Petitioner presented the testimony of five witnesses and 12 evidentiary exhibits. Respondent presented testimony of no witnesses.

Three exhibits offered by Respondent were admitted in evidence. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent in this proceeding is William M. Kenny. He was initially employed by Petitioner on an annual contract basis in a non-instructional capacity as a "trades helper" on July 16, 1985, for the 1985-86 school year. He was subsequently re-employed pursuant to an annual contract in this position for the 1986-87 school year. He was thereafter employed by Petitioner on an annual contract as a roofer in the maintenance department during the 1987-88 school year.

   
   

2. Petitioner's employees who are roofers are required to travel to various school sites to perform repair services for roofs of the schools. These employees have access to equipment and supplies owned by Petitioner during duty hours. After hours, most of the equipment and supplies are secured by locking shops, vehicles and storage yards. However, Petitioner is unable to secure all areas where equipment is located. Thievery and the "walking off" of construction materials is a recurring problem for Petitioner's facilities department even though the area where such materials are stored is usually lighted and fenced. Three incidents in the last two years resulted in the removal of certain employees from Petitioner's facilities department as the result of thievery.

   
   

3. Respondent's work performance as a "trades helper", an assistant to tradesmen such as carpenters and roofers, was satisfactory. His later performance as a roofer also met performance standards with the exception of deficiencies in his employment attendance. In conjunction with his attendance record, he was reprimanded in September of 1986 for abuse of Petitioner's employee sick leave policy and required to furnish a doctor's excuse for any further absences. Respondent was reprimanded again for his failure to call on January 25, 1988, prior to commencement of the work day and inform his supervisor that he would be unable to work aue to sickness. Employees are directed to call, in the event of illness, before the commencement of work.

   
   

4. Petitioner's supervisory employees consider the attendance records of subordinate employees such as Respondent in determining whether to recommend that an annual contract be offered to the employee for the subsequent year. Respondent's unsatisfactory attendance record would have resulted in a recommendation from Petitioner's director of facilities that Respondent not be rehired for the 1988-89 school year; however, before that recommendation could be formally made, Respondent was suspended from his employment pending judicial disposition of criminal charges against him.

   
   

5. The criminal charges against Respondent arose when he and three other individuals were arrested by law enforcement officers on February 12, 1988, and charged with burglary and grand theft. Respondent and the other persons were apprehended on that date at a construction site where several trailers, housing quantities of various construction materials, had been illegally entered. The other persons involved in the burglary had agreed to pay Respondent $100 to assist in the theft and use his expertise to determine the materials to be taken. At the time of his arrest, Respondent had entered the trailers and physically removed boxes of wire. When police officers arrived, Respondent fled to a nearby pond to escape the officers' police dogs. Respondent received a number of dog bites in the incident.

   
   

6. A bandaged Respondent reported to his work supervisor on Monday, February 15, 1988, to explain his inability to work and the reason for his absence from work on February 12, 1988. Due to his injuries, Respondent did not

   work during the period February 15, 1988, to February 26, 1988. Respondent's physician release authorized his return to work effective February 25, 1988. Respondent returned to work a day later on February 26, 1988.

   
   

7. Petitioner conducted an investigation of Respondent's arrest. In the course of that investigation, on March 4, 1988, Respondent admitted his guilt of the charged offenses to Petitioner's Assistant Superintendent for Personnel Relations. Respondent was suspended without pay, effective March 16, 1988, from his employment pending disposition of the criminal charges lodged against him.

   
   

8. On August 8, 1988, an order was entered in Circuit Court Case Number 88-1901CFDO2 accepting Respondent's guilty plea to two counts of burglary and

   two counts of grand theft. The order withheld formal adjudication of guilt, but required Respondent to serve 10 days in the Palm Beach County jail and successfully complete a two year period of probation.

   
   

9. Petitioner's supervisory personnel have impressed upon subordinate personnel in Respondent's category that there is an expectation that employees will refrain from stealing. To support this strong work ethic among employees, Petitioner has removed from employment in the past those employees involved in the theft of Petitioner's property. Increased supervision of Respondent would be required and morale of Respondent's coworkers would be adversely affected should Respondent be returned to employment in his position within the facilities department.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

11. Petitioner's administrative directive 3.27 delineates the grounds for suspension and dismissal of school board employees. In the administrative complaint, Petitioner has charged that Respondent's conduct constituted three violations of that directive; misconduct, immoral conduct and conviction of a crime of moral turpitude.

    
    

12. The proof fails to establish that Respondent has been convicted of any crime. To the contrary, the sentencing court's order specifically withheld a formal determination of Respondent's guilt of the charged felony offenses. Therefore, Respondent is not technically guilty of conviction of a crime involving moral turpitude.

    
    

13. The administrative complaint also charges Respondent with immoral conduct. Immoral conduct is defined in Petitioner's administrative directive 3.27(3)(g) as "conduct that is inconsistent with public conscience and good morals." The facts underlying the felony charges of burglary and grand theft lodged against Respondent are undisputed. Further, his guilty plea to those charges is more than a mere admission of the underlying facts; his formal plea of guilty is an admission that those admitted facts also constitute the felony crimes with which he was charged. While the sentencing court withheld the technical adjudication of guilt required to find that Respondent has been convicted, the underlying facts certainly comprise immoral conduct by Respondent within the ambit of the definition set forth in the administrative directive.

    
    

14. Misconduct is defined in Petitioner's Administrative Directive 3.27(3) as "conduct that is serious enough to impair the individual's effectiveness in

the school system." Petitioner's employment requires him to work at school construction sites where equipment and supplies are accessible. Therefore, the offenses with which he was charged impact directly upon his job responsibilities. Increased supervision of Respondent, now that his proclivity for purloining property not belonging to him is known, coupled with the decrease in morale of fellow employees should Respondent return to work, are adequate reasons upon which to determine that his conduct has seriously impaired his effectiveness to work within the school system at this time. Petitioner bears the burden of proving by a preponderance of the evidence the charges set forth in the administrative complaint. Petitioner had met this burden with regard to the charges of misconduct and immoral conduct.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing Respondent from

employment pursuant to the annual contract for the 1987-88 school year, such dismissal to be effective March 16, 1988.

DONE AND ENTERED this 6th day of February, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1441

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings

1. Conclusion of law, not fact. 2.-11. Addressed.

Respondent's Proposed Findings

Respondent's proposed findings were submitted in the form of a document entitled "Respondent's Brief." Numbered paragraphs containing proposed findings are not present. Respondent's representative seeks to make the point that failure of the sentencing court to formally adjudicate Respondent guilty of the charged offenses nullifies any action by Petitioner. This proposed legal conclusion is rejected as a finding of fact.

COPIES FURNISHED:

Thomas J. Mills Superintendent of Schools Post Office Box 24690

West Palm Beach, Florida 33416-4690

Sydney H. McKenzie General Counsel The Capitol, PL-08

Tallahassee, Florida 32399-0400

Abbey G. Hairston, Esquire Attorney for Petitioner

School Board of Palm Beach County, Florida

3323 Belvedere Road

Building 503, Room 232

West Palm Beach, Florida 33402

Dawn Bonard

Qualified Representative Post Office Box 449

Boynton Beach, Florida 33435

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 88-001441

Orders for Case No: 88-001441