STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN B. WIGGINS, Superintendent ) of Schools, Clay County School ) Board, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3529

)

JOHNNY LEE STATEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 24, 1988, a formal hearing was held in this case in accordance with Section 120.57(1), Florida Statutes. The location of the hearing was the Offices of the Clay County School Board, 900 Walnut Street, Green Cove Springs, Clay County, Florida. Charles C. Adams presided as Hearing Officer. This Recommended Order is being entered following the receipt and review of the transcript of proceedings filed on November 18, 1988, and in consideration of the exhibits of record. In addition, Petitioner has offered a Proposed Recommended Order which has been examined. The Respondent provided a Memorandum of Law which was considered. Both of these items were filed with The Division of Administrative Hearings in keeping with Rule 28-5.42, Florida Administrative Code, which allows an extension of time for the provision of Proposed Recommended Orders or Memoranda of Law. The fact finding set forth in the Petitioner's Proposed Recommended Order is discussed in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Timothy B. Strong, Esquire

Coffman, Coleman, Andrews & Grogan Post Office Box 40089 Jacksonville, Florida 32203

For Respondent: Ronald G. Meyer, Esquire

Meyer, Brooks and Cooper, P.A. 2544 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues raised concern the question of whether Petitioner, through action of the Clay County School Board, may terminate the employment of the Respondent with that School Board based upon the allegations referred to above.

PRELIMINARY STATEMENT

On June 14, 1988, the School Board Members and Respondent, Johnny Lee Staten, a/k/a Johnny Lee Staten, Jr., and Johnny L. Staten, Jr., were notified by Ann B. Wiggins, Superintendent of Schools for Clay County, Florida, of charges and recommended action. Those charges were under the stated authority of Chapter 230.23(5), Florida Statutes, and Rule 6GX-10-2.17D., Clay County School Board Rules. In particular, the Superintendent requested the School Board terminate the employment of the Respondent with the Clay County School Board for cause, based upon alleged acts of immorality and noncompliance with the laws of Florida pertaining to the sale and delivery of a controlled substance, cocaine. This correspondence was followed by correspondence of June 16, 1988, from the Superintendent to the Respondent indicating that the School Board had approved the request to suspend the Respondent without pay effective June 17, 1988, pending the final disposition of the charges. Respondent was advised to inform the Superintendent concerning any future proceedings related to the charges.

On June 21, 1988, through Carl Frazier, Executive Director, Northeast Florida Uniserve, Florida Teaching Profession - National Education Association, Respondent requested a hearing pursuant to Section 120.57, Florida Statutes, and asked that the hearing be conducted by a Hearing Officer from the Division of Administrative Hearings. On July 5, 1988, as indicated by an agenda item before the Clay County School Board at its meeting on that date, a request for a hearing under Chapter 120, Florida Statutes, to be conducted before The Division of Administrative Hearings was approved.

On July 18, 1988, through a formal Petition of Charges drawn by counsel for the Petitioner, Respondent was given further advice of the charges, with more particularity, and the additional charge of holding the Clay County School System into disrepute was added to those charges which had been brought before. On July 18, 1988, the case was transmitted to The Division of Administrative Hearings leading to the Final Hearing as discussed before.

At hearing, the Petitioner presented the testimony of James Douglas York, Deputy Sheriff, Bradford County, Florida; Sheldon Ira Safer; Niels H. Bernstein, Crime Laboratory Analyst for The Florida Department of Law Enforcement; and Martin Miller, Assistant Superintendent of Personnel and Labor Relations for The Clay County School Board. Respondent testified in his own behalf and offered no other witnesses. Petitioner presented seven exhibits which were received at hearing or are received based upon rulings of law made in this Recommended Order.

FINDINGS OF FACT

1. Chapter 230, Florida Statutes, and Chapter 6GX, Clay County School Board Rules, contemplate the opportunity for the Clay County School Board to enter into employment contracts with non-instructional employees related to hiring, conditions of employment and dismissal for cause. Respondent is a member of that class of employees. In particular, since 1984, he has worked as a custodian with the Clay County School Board at its Doctor's Inlet Elementary School. This is a school whose children are in grades kindergarten through sixth.

   
   

2. When Respondent sought and was granted the opportunity for a formal hearing in this case, as described before, he sought a hearing to challenge the

   actions of an entity which is defined at Section 120.52(1), Florida Statutes, as an "agency".

   
   

3. The exact terms of the employment circumstance between The School Board of Clay County and Respondent are set forth in the Petitioner's Exhibit No. 7, admitted into evidence which is a copy of the applicable contract for the period of time at issue.

   
   

4. On March 21, 1988, Respondent was at the Reno Apartments in Starke, Florida. That apartment complex was a location at which Respondent resided on occasion. It is also an area which is regarded by local law enforcement as being subject to significant activity in illegal drug sales. It is for that reason that Deputy James Douglas York of the Bradford County Sheriff's Office, an officer involved in a drug investigation of the Reno Apartment area, dispatched Sheldon Safer, a confidential informant, sending Safer to the Reno Apartments to attempt to purchase drugs from suspected drug dealers. Respondent was among that list of suspected drug dealers.

   
   

5. Safer had known the Respondent for approximately two years prior to the March 21, 1988, date and had, according to Safer, purchased cocaine from Staten on eight to ten occasions at the Reno Apartments.

   
   

6. On that night of March 21, 1988, Deputy York met with Safer and searched his person and his vehicle to assure himself that Safer was not in possession of drugs. He found no drugs on Safer's person or in his vehicle. He provided Safer with $30.00 to purchase drugs from suspects. He outfitted Safer with a tape recorder to preserve the conversation between Safer and any drug seller. He secured that tape machine in such a fashion as to not allow Safer to tamper with it during the course of the informant's activities.

   
   

7. Safer went to the Reno Apartments on March 21, 1988, and while there was approached by a number of people attempting to sell him cocaine. He rejected all offers with the exception of that made by Respondent who sold crack cocaine to Safer for the price of $20.00 paid for from the money received from Deputy York. This sale was made at the Reno Apartments on the night in question.

   
   

8. Safer then returned to the rendezvous point with Deputy York and gave York the crack cocaine which had been purchased. York took the tape machine from Safer finding it to be secured as it had been when given to Safer. The tape which was made, Exhibit 4, admitted into evidence, accurately depicts the conversation between Safer and Respondent at the time the drug purchase was made. A duplication of that tape is Petitioner's Exhibit 2, admitted into evidence.

   
   

9. A portion of the tape had been inadvertently erased in transferring the tape information from Exhibit No. 4 to Exhibit No. 2; however, the erasure was not such as to destroy the integrity of the conversation between Safer and the Respondent at the time of the purchase of cocaine on the night of March 21, 1988. Furthermore, the inconsistencies that have been pointed out by the Respondent in his Memorandum of Law concerning the tapes, the different descriptions of events offered by the witnesses York, Safer and Niels H. Bernstein, a Crime Laboratory Analyst with the State of Florida, Department of Law Enforcement are not such as to be irreconcilable in arriving at the final factual impression of these matters. In addition, the psychiatric care which the confidential informant Safer is receiving and pendency of criminal charges for arson against him, a matter in which Deputy York has been an investigator,

   have been taken into consideration concerning competence and credibility and do not cause the rejection of testimony given by Safer.

   
   

10. Martin Miller, Assistant Superintendent of Personnel and Labor Relations for the Clay County School Board, referenced Chapter 6GX, Clay County School Board Rules, and its requirements in the course of his testimony. He pointed out that those Rules refer to the School Board's authority to suspend and remove employees for adequate cause. In particular, he related that the School Board is of the opinion that persons found in possession of drugs or using or selling those drugs can no longer be effective employees of The Clay County School System, in that those employees, in particular, as they are in contact with school children directly or indirectly, inferentially make the inappropriate impression on those children following such activities by an employee. He describes the vulnerability of children in the school system to the drug problems and to the efforts that the School Board has made to institute curricular programs involving explanations of drug problems and the seriousness of those problems. He references a situation at the school where the Respondent was employed in the last school year, where it was believed that some of the students were in possession of cocaine and of a check being made of the private property of those children to determine if there was such a problem. He refers to the fact that an attempt is made to screen employees for drug related problems before when they are applying for the positions with the school system. Possession of drugs whether on or off school property is considered a significant item, per Miller's remarks. In the past, the School Board has taken action to terminate another employee, a teacher, for possession of a drug, in that instance, marijuana. Finally, through testimony, Miller identifies the fact that the sale of cocaine by Respondent brings the school into disrepute as referred to in the allegations.

    
    

11. When Respondent executed the contract and application for the period of time discussed, set forth in Petitioner's Exhibit 7, he acknowledged the obligation to abide by the laws, rules, regulations and policies of the School Board as those matters applied to him.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner bears the burden of proof in this instance. See Balino vs. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The quality of that proof is by a preponderance of the evidence given that this Respondent is not an instructional staff member who is a professional. See also Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. The authority for the prosecution of this employee under the disciplinary provisions of the Clay County School Board is generally described at Section 230.23(5), Florida Statutes, as follows:

    
    

    The School Board, acting as a Board, shall exercise all powers and perform all duties listed below:

    * * *

    (5)PERSONNEL - Designate positions to be filled, prescribed qualifications for those positions, and provide for the appointment,

    compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231:

    * * *

    (f) SUSPENSION AND DISMISSAL AND RETURN TO ANNUAL CONTRACT STATUS. - Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; ..."Furthermore, section 231.001, Florida Statutes, grants authorization to the local school board to

    prescribe rules governing personnel matters.

    
    

15. To that end, Rule 6GX-10-2.17D., Clay County School Board Rules set forth:

    
    

    Discipline

    1. Policy on Discipline

       To assure the continuing and efficient operation of the school system, all employees may be applicable statutes and/or contractual arrangements.

       Disciplinary actions shall consist of oral reprimands, written reprimands, demotions, suspensions or dismissals. Resignation, non-renewal of employment contracts, or separation of probationary employees shall not be considered disciplinary action. Any employee wishing to secure release from his/her contract shall submit his/her resignation to the Board in an approved form.

    2. Procedure

       School Board action shall be rejected for any suspension, demotion or dismissal.

       However, subject to the requirements of Chapters 230 and 231, Florida Statutes, the Superintendent may suspend with pay any employee for no longer than the next regular or special school Board meeting at which time the school Board may confirm the suspension with pay, continue the suspension with pay, suspend without pay, demote, or dismiss.

    3. Standards of Conduct

       Subject to the requirements of Chapter 231, Florida Statutes, the School Board may dismiss any employee for just cause. Just cause shall include, but is not limited to, the following:

       b. Action which brings the school system into disrepute. ...

       h. Immorality. ...

       n. Non-compliance with the regulations and policies of the School Board, State Board of Education, or the laws of Florida.

16. Examining these allegations individually, Respondent is found to have acted in a fashion such as to bring the school into disrepute, has demonstrated immorality, has failed to comply with the regulations and policies of the School Board and has acted contrary to Section 893.13, Florida Statutes, dealing with the sale of illegal drugs. All of these violations are a product of his sale of illegal cocaine to the confidential informant, Safer, on March 21, 1988. See Boyette vs. State Professional Practices Commission, 346 So.2d 598 (Fla. 1st DCA 1977) and Walton vs. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984).

    
    

17. Ruling was reserved on the question of the admissibility of Petitioner's Exhibits Nos. 2 and 4, a copy of the original tape of a drug sale conversation between Safer and the Respondent and the original of that tape respectively. Having considered those matters, both the original tape and the excerpt are acceptable in that the missing portion of the original tape did not interfere with the integrity of recording the conversation as it took place between those persons. See Gomien vs. State, 172 So.2d 511 (Fla. 3d DCA 1965) and Brady vs. State, 178 So.2d 121, (Fla. 2d 1965).

RECOMMENDATION

Having considered the facts found and the conclusions of law reached, it is, recommended that the Respondent, Johnny Lee Staten, a/k/a Johnny Lee Staten, Jr., and Johnny L. Staten, Jr., be dismissed as an employee of The Clay County School Board.

RECOMMENDED this 18th day of January, 1989, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS, 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 18th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3529

The following discussion is made of proposed findings of fact set forth in the Petitioner's Proposed Recommended Order. No discussion is made of fact finding by the Respondent in that the Respondent in lieu of the submission of a Proposed Recommended Order submitted a Memorandum of Law which has no discreet discussion of Petitioner's facts.

Petitioner's Facts

Paragraphs 1 and 2 are subordinate to facts found.

Paragraph 3 is set forth in the Recommended Order's discussion of law.

Paragraphs 4 and 5 and the first sentence to Paragraph 6 are subordinate to facts found. The remaining sentences within Paragraph 6 are not necessary to the resolution of dispute.

Paragraph 7, 8 and 9 are subordinate to facts found.

Paragraph 10, 11, 12, 13 and 14 are not necessary to the resolution of the dispute.

Paragraphs 15 and 16 are subordinate to facts found.

Paragraph 17 is considered in the preliminary discussion within the Recommended Order.

COPIES FURNISHED:

Timothy B. Strong, Esquire COFFMAN, COLEMAN, ANDREWS & GROGAN

2065 Herschel Street Post Office Box 40089

Jacksonville, Florida 32203

Ronald G. Meyer, Esquire Post Office Box 1547 Tallahassee, Florida 32302

Ms. Ann B. Wiggins Superintendent of Schools Clay County Schools

900 Walnut Street

Green Cove Springs, Florida 32043

Docket for Case No: 88-003529

Orders for Case No: 88-003529