STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LAKE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2620

)

ANTHONY LOUIS YOUNG, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Leesburg, Florida on September 27, 1989, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

1000 W. Main Street Leesburg, Florida 34749

For Respondent: Harry L. Lamb, Jr., Esquire

312 West 1st Street, Suite 605 Sanford, Florida 32771

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Respondent should be dismissed from employment as a non-instructional employee by the School Board of Lake County based on his arrest on February 26, 1989 for sexual battery on a child 12 years old.

PRELIMINARY STATEMENT

By letter dated March 10, 1989, Dr. Thomas E. Sanders, Superintendent of Schools for Lake County, Florida, advised Respondent, Anthony Young, that he was being suspended with pay from his employment with the Lake County school system, based on Respondent's arrest on February 26, 1989 on a charge of sexual battery on a child the age of 12, under the provisions of School Board Policy 4.06(1).

It was Dr. Sanders' expressed intention to recommend to the Lake County School Board, (Board), at its next regularly scheduled meeting on March 14, 1989, that Respondent be dismissed. Thereafter, on March 17, 1989, Dr. Sanders advised Respondent that the Board had voted to continue his suspension without pay until such time as an investigation into the matter had been completed, but withheld the recommendation for dismissal until Mr. Young elected to have a hearing. On April 14, 1989, Dr. Sanders again advised the Respondent by letter that the dismissal recommendation had been withheld and that he had the right to request a hearing under Chapter 120, Florida Statutes. Respondent so requested, by letter dated April 28, 1989, and on May 9, 1989, the case was referred to the

Division of Administrative Hearings for appointment of a Hearing officer. By Notice of Hearing dated June 20, 1989, Hearing Officer Larry J. Sartin set the case for hearing in Leesburg on September 27, 1989 and the case was held before the undersigned, to whom it had been transferred in the interim, on that date as scheduled.

At the hearing, Petitioner presented the testimony of Nick Pallitto, a Lake County Sheriff's Deputy; Rhonda Williams, a Child Protective Investigator with the Department of Health and Rehabilitative Services; Respondent, Anthony L. Young; Julia M. Young, Respondent's wife and the victim's mother; Debra K. Witter, a 7th grade teacher at Oak Park Middle School; Ted Allen Wolf, Principle at Rimes Elementary School; Jerry W. Cox, Assistant Superintendent of Schools for Administration and Employee Relations; and Patrick Gough Galbraith, Supervisor of Testing and Evaluation with the Board and formerly Assistant Superintendent of Schools for Administration and Employee Relations. Petitioner also introduced Petitioner's Exhibits 1 through 11.

Respondent testified in his own behalf and presented the testimony of Mary Walker, his mother-in-law, and grandmother of the alleged victim. He also introduced Respondent's Exhibits A and C, Respondent Exhibit B for Identification was offered but not admitted.

A transcript was provided. Only Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Anthony Louis Young, was employed by the Lake County School District as a custodian at Rimes Elementary School. The School Board of Lake County is the agency responsible for the administration of public primary and secondary education in Lake County.

   
   

2. Respondent had been employed as custodian at Rimes since 1983. This was a non-instructional position. In addition to his duties as custodian, he also had signed a vandal trailer contract under which he occupied, with his family, free of charge, a house trailer located on the school campus. The trailer and all utilities except telephone were furnished without charge to the Respondent. His obligation was to provide himself with a telephone and to make visual checks of the school buildings from time to time when school was not in session. Mr. Young did not receive any salary under the terms of the trailer contract.

   
   

3. On February 13, 1989, Julia Young, Respondent's wife and mother by a different father of Nina Walker, age 12, discovered a pair of bloody underpants belonging to her daughter and became suspicious of the cause. She made an appointment with a doctor at the Public Health Service to have her daughter examined but did not keep it, nor did she provide any urine specimens from her daughter for testing. Finally, on or about February 26, 1989, she asked her daughter about the pants and in response was told, by Nina, that her stepfather, Respondent, had come into her room while Ms. Young was gone and had "messed" with her. Nina did not go into detail at this time, but as a result, that same day Ms. Young called the Sheriff's Office to report Respondent for alleged sexual battery on Nina. She had not discussed the matter with Respondent before making the call.

4. When the Sheriff's Deputies came to her home, she told them the story that Nina had told her about the abuse which had allegedly taken place on a previous date.

   
   

5. Ms. Young's report was made to Deputy Pallitto who, upon hearing the story, notified the representative from DHRS and then interviewed Nina. In her statement made to Pallitto, Nina told the following story:

Respondent had picked her up at her grandmother's house on February 13, 1989 and taken her home. Instead of dropping her off as he usually did, he came inside, followed her into her room, and began touching her on her breasts and vagina. When Nina stated she would tell her mother, Respondent allegedly said he would tell her that Nina had used profanity. He then reportedly forced her onto the bed and told her to take off her clothes. He went into the living room and put some music on to play and then returned and undressed himself. He put what apparently was a condom on and told Nina to open her legs. He then attempted to insert his penis into her vagina and it hurt. As he was trying to do this, Nina's brother came in the back door and this caused Respondent to get off her and leave the room.

1. Deputy Pallitto asked Nina to write out her statement, which she did. After completing her affidavit, she was taken to a doctor for a physical examination. Based on her oral statement, her affidavit which was consistent therewith, and the conclusion of the doctor that her physical condition was consistent with a penetration of her vagina by something, Respondent was arrested. During the period that Nina was waiting to see the doctor, she was again asked to tell her story and at this point, told much the same story as she had previously told, both orally and in writing.

   
   

2. Several days later, on February 28, 1989, Deputy Pallitto was contacted by the Assistant State's Attorney who advised him that earlier that day Nina, along with her mother and grandmother, had come to his office and recanted her previous story. At Pallitto's request, she wrote out another affidavit which, in his opinion, was much more difficult for her to do than had been the original. In her second affidavit, Nina indicated she recanted because Respondent was not guilty of what she had alleged and she did not want to see an innocent man go to prison. In the second affidavit, Nina indicated her first story was a lie and claimed that when she attempted to tell the truth at first, she was pressured to make a statement implicating the Respondent. It was not indicated who "pressured" her.

   
   

3. Ms. Williams arrived at Respondent's house trailer while Nina was writing out her original affidavit, and when she read it, found it to be consistent with what she had heard directly from Nina and from her mother. Ms. Williams took Nina to the doctor because she wanted Nina to have a vaginal exam as soon as possible to see if penetration could be determined. After the doctor indicated that Nina's condition was consistent with penetration by something,

   she took both Nina and Nina's brother and sheltered them for a month. At the end of that period, the boy was returned home, but Nina was sent to stay with an aunt in Ft. Lauderdale at the request of Ms. Young. This was done after Nina had recanted her original accusation, but according to Ms. Williams, this is not at all unusual.

   
   

4. Ms. Williams also indicated that Ms. Young had seen love letter type notes written to Respondent by children from the school. These were not presented because, Ms. Young indicates, she tore them up and threw them away.

   
   

5. Ms. Williams alleges that Ms. Young indicated in her initial interview that Nina was not the sort of child who would make up stories. In fact, Ms. Williams' investigation, and the testimony of Ms. Witter, one of Nina's teachers who is familiar with Nina's reputation at school, confirms this. At the hearing, however, both Ms. Young and Ms. Walker, the grandmother, indicated Nina is as likely to tell a lie as she is to tell the truth, and though she had not been in disciplinary difficulties at school before, she has been somewhat promiscuous on at least one occasion with a male cousin.

   
   

6. The investigator from the Department of Health and Rehabilitative Services who, investigated this matter filed her report indicating the situation as a "confirmed" case of child abuse. Mr. Young was thereafter notified of this classification by letter and did not take any action to contest it. It is the policy of the School Board not to hire individuals who are charged with child abuse and placed in the abuse registry. Even if found innocent of sexual abuse on a minor, an individual would not be hired for a custodial position.

   
   

7. Two weeks after Respondent was arrested, the State's Attorney decided not to prosecute and Respondent was released from jail. On the day of his release, a letter advising him that he had been suspended with pay pending a recommendation for disciplinary dismissal by the Board was delivered to him by Mr. Galbraith, the then Assistant Superintendent. This letter advised Respondent he was entitled to an informal conference after the Superintendent had conducted an investigation into the allegations. The investigation was conducted and Respondent requested an informal conference which was scheduled for March 23, 1989. However, before that conference could take place, the Board was advised of a decision of the 5th District Court Of Appeals which afforded Respondent a due process hearing under Chapter 120, Florida Statutes.

   Respondent was so advised and requested the formal hearing, and as a result, the dismissal action was held in abeyance pending the formal hearing.

   
   

8. Before the formal hearing could be held, however, Respondent's one year contract with the Board expired and, though he had been rehired almost automatically every year since he started with the Board in 1983, on this occasion, because of the allegations against him, Mr. Wolf, the Principal at Rimes, declined to offer him a contract for the following year. At about the same time, the Board advised him to vacate the trailer he occupied on campus. Consequently, no disciplinary dismissal has ever been executed. Shortly after his release from jail in March, 1989, Mr. Young left the area and secured alternative employment in Orlando. He has never requested that he be reinstated after the charges against him were dropped. His sole contest of the Board's action is the request for hearing on the dismissal action.

   
   

9. While working with the Board, Respondent was paid approximately

   $520.00 every two weeks. On or about April 1, 1989, he secured work with a firm in Orlando and has been making $6.25 an hour working 50 hours per week, with overtime for all hours over 40. Though Respondent previously claimed he did not

   want his job back, he now claims he does, but in light of his current income and the fact that he is currently working in an area away from the locus of the incident, it is found that his stated desire for reinstatement is not sincere.

   
   

10. Once Respondent was arrested his principal, Mr. Wolf, recommended to the Board that he be dismissed. School Board Policy 4.06(1), dealing with non- instructional personnel, provides that a staff member may be discharged during his term of office for "good and sufficient reasons". Both Mr. Wolf and Mr. Galbraith advised Dr. Sanders that under the circumstances of this case, wherein an employee who deals on a regular basis with young children is arrested for an offense which, as here, involves allegations of sexual misconduct with a child, the interests of the children and the school system would be best served by his dismissal.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

12. The procedure for discharge of a school board employee in Lake County is provided for in School Board Policy 4.06, promulgated by the Lake County School Board. At subparagraph (1), this policy provides:

    
    

    Any member of the non-instructional staff may be dismissed by the School Board during his term of employment, when a recommendation for dismissal is made by the superintendent, giving good and sufficient reasons therefor.

    
    

13. Any suspension or dismissal action taken under the terms of that provision must be taken in accordance with the requirements of due process. Due process requires that before dismissal, the Board must suspend the employee with pay; suspend him without pay after the appropriate school board meeting; and file a formal charge against him. Reddick v. Leon County School Board, 405 So.2d 757 (Fla. 1st DCA 1981).

    
    

14. In the instant case, Mr. Young was first advised of his suspension with pay by letter from the Superintendent dated March 10, 1989. Thereafter, after a School Board meeting, at which Petitioner's case was considered, the Superintendent again advised Mr. Young, by letter dated March 17, 1989, that the Board had voted to continue his suspension, but without pay, from March 15, 1989. The Superintendent also advised Mr. Young that an informal hearing regarding his arrest for sexual battery on a child, (the charge) would be held on March 23, 1989, and that Mr. Young had the right to request a formal hearing in lieu thereof. Mr. Young did so request, and the instant hearing is that action. Consequently, it would appear that the School Board's actions in this case clearly conformed to the requirements of due process.

    
    

15. Turning to the question, then, of the appropriateness of the action taken against Mr. Young, the issue is not whether Mr. Young actually committed the offense alleged, but whether, on the basis of the charge and the allied circumstances, good and sufficient reasons thereafter existed for the suspension action and the subsequent failure to rehire him.

16. The evidence shows that Mr. Young, a custodian in an elementary school and a resident in a house trailer on the school grounds, was arrested by the authorities on a charge of sexual battery on a child in the same category as those with whom he came into contact on a daily basis, frequently without other adults present. This arrest was well known within the school and parental communities and the initial investigation report, in existence at the time the Board action was taken, appeared to be supported by the available facts.

    
    

17. The Board's policy not to hire individuals who are charged with sexual abuse of a child and placed on the abuse register, even if subsequently found not guilty, is within its appropriate discretion. However, when an individual is already hired and in place, performing well and without other complaint, the situation is somewhat different. A finding of "not guilty" in court means only that the state has not proven its case. It says nothing to the truth of the allegation. However, here, the allegation was withdrawn and Mr. Young was not even subjected to trial.

    
    

18. The evidence as to the alleged battery, presented at the hearing, was made up solely of hearsay evidence which, alone, cannot form the basis for a finding of fact. The information contained in the investigation constituted good and sufficient reason to suspend Mr. Young with pay initially, and, when the initial investigation seemed to support the allegation, to suspend him without pay after the Board meeting. However, when the allegation was withdrawn, and the charge against him was dismissed, and he was not even subjected to trial, the apparent "good and sufficient reason" disappeared and he should have been reinstated.

    
    

19. Mr. Young was employed on annual contract and the school Board was under no obligation to appoint him for the next school year. Since the proposed dismissal was not shown to be justified, Mr. Young is entitled to back pay from the time the charges against him were dismissed until the end of the 1988 - 1989 school year.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent, Anthony Louis Young, be awarded back pay for the period from the date the charges against him were dismissed to the end of the 1988 - 1989 school year.

RECOMMENDED this 4th day of December, 1989, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 4th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2620

The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case.

FOR THE PETITIONER:

None submitted FOR THE RESPONDENT:

1. Accepted and incorporated herein.

2. & 3. Accepted and incorporated herein.

4. & 5. Accepted and incorporated herein.

6. - 9. Accepted and incorporated herein.

1. Accepted.

2. & 12. Accepted and incorporated herein.

13. & 14. Accepted and incorporated herein.

15. - 17. Accepted.

1. Accepted and incorporated herein.

2. Accepted.

3. - 23. Accepted and incorporated herein.

24. & 25. Accepted and incorporated herein.

COPIES FURNISHED:

Stephen W. Johnson, Esquire

100 West Main Street Leesburg, Florida

Dr. Thomas E. Sanders, Superintendent The School Board of Lake County, Florida 34749 201 W. Burleigh Blvd.

Tavares, Florida 32778

Harry L. Lamb, Jr., Esquire

312 West 1st Street, Suite 605 Sanford Florida 32771

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LAKE COUNTY,

Petitioner,

vs. CASE NO. 89-2620

ANTHONY LOUIS YOUNG,

Respondent.

/

FINAL ORDER

Pursuant to Section 120.57(1), Florida Statutes and Florida Administrative Rules, the School Board of Lake County has considered the Recommended Order of the Hearing Officer on the record submitted at a public meeting.

Pursuant to Section 120.57(1)(b)10, the School Board of Lake County adopts the Recommended Order of the Hearing Officer of the Division of Administrative Hearings which is attached and incorporated as the School Board's Final Order in these proceedings subject to the allowance of a setoff and reduction in the computation of back pay for the period stated in the Recommended Order in the amount of the total wages or salary earned by Respondent in other employment during the same period.

The School Board of Lake County notes that the Petitioner's exceptions to the Recommended Order have been withdrawn other than Petitioner's recommendation of the inclusion of a setoff for other wages in the School Board's computation of back wages.

Based on the foregoing and the incorporated Recommended Order of the Hearing Officer, the School Board of Lake County awards back pay to the Respondent, Anthony Louis Young, for the period from the date the charges against him were dismissed to the end of the 1988-1989 school year to be reduced by the wages earned by Respondent in other employment during that same period.

DONE AND ENTERED this 10th day of April, 1990, in Lake County, Florida.

Ray F. Newman, Chairperson

ATTEST:

THOMAS E. SANDERS, Superintendent and Ex Officio Secretary

Docket for Case No: 89-002620

Orders for Case No: 89-002620