STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0327

)

ALVA GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on June 1, 1993, in Vero Beach, Florida.

APPEARANCES

For Petitioner: G. Russell Petersen

3426 Ocean Drive

Vero Beach, Florida 32967

For Respondent: Thomas E. Shafovaloff

411 North Park Avenue, Suites 12-14 Winter Park, Florida 32789

STATEMENT OF THE ISSUES

The central issue in this case is whether or not Respondent should be suspended retroactively without pay from his non-instructional position and terminated from his employment as a custodian.

PRELIMINARY STATEMENT

This case began on December 9, 1992, when the Indian River County School Board (Board) through the superintendent of schools notified the Respondent, Alva Green, that he was being suspended from his position of employment as a custodian at Vero Beach Senior High School (VBHS). On January 8, 1993, the Respondent was further notified that he was being suspended with a recommendation for termination of employment. The basis for the Board's actions was Respondent's alleged involvement in the sale or delivery of a controlled substance. Such sale had allegedly occurred on school property on or about November 2, 1992.

The Respondent denied any wrongdoing, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 19, 1993. At the hearing, the Respondent made an ore tenus motion to dismiss on several grounds. First, that the Respondent, who was not convicted of the criminal charges arising from the same alleged incidents, should not be retried on the same issues in these proceedings. Secondly, since Respondent was acquitted of

the criminal charges, the rule cited by the Board does not apply, and Respondent should not be deprived of his employment based upon such rule. And finally, that since the Board has not given Respondent a contract for the 1993-94 school year, it has effectively taken final action and rendered these proceedings moot.

As to the argument of res judicata or double jeopardy (whichever theory Respondent meant to raise by the first argument), such motion was denied. As to the second argument, ruling on that motion was reserved as the factual issues inherent in the argument were not of record, and as it would be most logical to apply the Board rule, if applicable, only after the taking of the evidence.

Finally, as to the mootness argument, such motion was denied.

Additionally, the Respondent requested that official recognition be taken of the entire criminal file, together with transcript, of the case against Respondent that arose from the same incidents complained of in these proceedings. Respondent did not have a certified copy of such file and did not have a transcript of the proceedings. Such request for official recognition was denied. Obviously, the parties to, and the burden of proof of, the criminal case were not the same as are at issue in these proceedings.

Finally, Respondent entered an ore tenus motion for continuance that was opposed by the Board. Such motion sought additional time to obtain the criminal record so that all or portions might be used in these proceedings. This motion was also denied.

Subsequent to the preliminary matters and motions noted above, the Petitioner presented the testimony of the following witnesses: Robert William Parsons, Jr., a forensic chemist employed by the regional crime laboratory; Anthony Dissis, a deputy employed by the Indian River County Sheriff's Department, formerly assigned as an undercover officer at VBHS; Ray Gage, a school resource officer assigned to VBHS by the Indian River County Sheriff's Department; and Doug King, the principal at VBHS. The Petitioner's exhibits numbered 1 and 2 were admitted into evidence. The Petitioner's third exhibit, the packet of marijuana at issue in the case, was retained by the Indian River County Sheriff's Department for safekeeping until this matter becomes final.

Petitioner sought, and official recognition has been taken, of Section 231.36, Florida Statutes, and Board rules 2.17 and 2.39.

The Respondent testified on his own behalf. A transcript of the hearing has not been filed. At the conclusion of the hearing, the parties were advised of their right to file proposed recommended orders. Such proposed recommended orders have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Respondent was employed as a custodian at VBHS.

   
   

2. At the beginning of the 1992-93 school year, Anthony Dissis, a deputy employed by the Indian River County Sheriff's Department, was assigned to be an undercover officer at VBHS. Deputy Dissis enrolled at the school, attended classes with other students, and in all respects attempted to give the appearance of being a student at the school. To that end, he met and talked with other students.

3. During the course of his school experience, Deputy Dissis met Respondent who was known on the campus and who was frequently in student areas.

   
   

4. In late October, 1992, Deputy Dissis approached Respondent and sought to purchase marijuana. Despite some initial delays, Deputy Dissis and Respondent came to an understanding whereby the officer gave $50.00 to the Respondent for marijuana.

   
   

5. Later, Respondent told Deputy Dissis to meet him at a parking lot on campus and the delivery would take place. At the appointed time, Deputy Dissis went to the parking lot and Respondent handed him an envelope in which the contents were later tested and confirmed to be marijuana.

   
   

6. Such testing was performed by Bob Parsons, an analyst with the regional crime laboratory.

   
   

7. Marijuana is a controlled substance as defined by Florida law.

   
   

8. Subsequently, the Respondent was suspended from his employment.

   
   

9. When tried on the criminal charges which arose from the same incident complained of herein, Respondent was found not guilty by a jury.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 230.22, Florida Statutes, provides, in part:

    
    

    The school board, after considering recommendations submitted by the superintendent, shall exercise the following general powers:

    1. DETERMINE POLICIES AND PROGRAMS.--The school board shall determine and adopt such policies

       and programs as are deemed necessary by it for the efficient operation an general improvement of the district school system.

    2. ADOPT RULES AND REGULATIONS.--The school board shall adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system

       
       

12. Section 230.23, Florida Statutes, provides, in part:

    
    

    Powers and duties of school board.--The school board, acting as a board, shall exercise all powers and perform all duties listed below:

    * * *

    (5) PERSONNEL.--Designate positions to be filled, prescribe 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; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in chapter 231.

    (emphasis added)

    
    

13. Rule 2.17, of the Board Rules provides, in part:

    
    

    ALCOHOLIC BEVERAGES, NARCOTIC DRUGS, HALLUCINOGENIC DRUGS, BARBITURATES AND SIMILAR ITEMS. The possession,

    sale, transfer or use by any student, employee or school visitor of any form of an alcoholic beverage or drug with abuse potential, hallucinogenic drug, barbiturate or similar item as defined in Chapter 893, Florida Statutes, is prohibited on school property or at any school sponsored function.

    * * *

    (3) Any student or employee who is caught in violation of the above while on school property or at a school sponsored activity shall be reported to the proper law enforcement agency.

    
    

14. Rule 2.39, of the Board rules, provides, in pertinent part:

    
    

    1. No employee of the School Board of Indian River County shall manufacture, distribute, dispense, possess or use on or in the workplace any alcoholic substance, any intoxicating or auditory, visual, or mental altering chemical or substance or narcotic drug, hallucinogenic drug, amphetamine, bartiture (sic), marijuana or any other controlled substance, as defined by Federal or State Law or rule, or any counterfeit or such drugs or substances all being collectively referred to as drugs, to include the abuse of prescription drugs.

       * * *

       As a condition of employment, each employee shall notify his or her supervisor of his or her conviction of any criminal drug statute for a violation occurring

       in the workplace no later than five (5) days after such conviction. An employee who violates the terms of this policy may be non-renewed or his or her employment may be suspended or terminated.* * *Sanctions and

       discipline against employees, including non-renewal, suspension and termination shall be in accordance with prescribed School District procedures and shall be commenced within thirty (30) days of receiving notice of an employee's conviction in violation of this rule, the Superintendent shall notify the State and Federal Departments of Education.

15. In the case at issue, the Respondent argues that since he was not convicted of the criminal charges that arose from the same incident complained of herein, he may not be suspended or terminated from his employment.

    Respondent maintains that the Board may only take action to suspend or terminate an employee after (within thirty days of receiving) notice of a conviction. In this case, the Board took action months before the employee went to trial on the criminal charges.

    
    

16. Neither party has alleged, nor submitted, the terms of Respondent's employment contract with the Board; however, the Board has the inherent authority to suspend or to terminate an employee's employment.

    
    

17. Section 231.36, Florida Statutes, sets forth that instructional staff may be terminated only for just cause. "Just cause" is then defined as:

    
    

    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.

    
    

    The foregoing section does not apply to the Respondent as he was not a member of the instructional staff.

    
    

18. Looking then to the above cited rule, Rule 2.39, it is clear that the Board intends to prohibit employees from possessing controlled substances at the work place. It is further provided that such employees violating that policy may be suspended or terminated from their employment.

    
    

19. The Board has established, by clear and convincing evidence, that the Respondent possessed marijuana at the work place, that he sold and delivered such marijuana to the undercover officer while at the work place, and that all such actions occurred in violation of the Board rule.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Indian River County School Board enter a final order confirming the suspension without pay of the Respondent, and terminating his employment as a school custodian.

DONE AND RECOMMENDED this 30th day of July, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 30th day of July, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0327

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraph 1 is accepted; however Respondent's age and place of birth are irrelevant to these proceedings.

2. Paragraph 2 is rejected as irrelevant to the allegations of this case.

3. With the deletion of the third sentence which is rejected as irrelevant, paragraph 3 is accepted.

4. With regard to paragraph 4, it is accepted that Dissis paid Respondent

   $50.00 for marijuana on school grounds and near the gym class; it is not established that other students viewed the transaction as suggested by the paragraph and such finding is rejected as not supported by the evidence presented.

5. With regard to paragraph 5, it is accepted that Dissis and Respondent worked out the details of the marijuana delivery while Respondent was working, on school property, and near the gym. It is further accepted that the delivery was to take place later in the day at a location on campus; otherwise, the paragraph is rejected as not supported by the evidence presented or irrelevant. See comment to paragraph 4 above.

6. Paragraphs 6 through 11 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraph 6 (Respondent's paragraphs 1 through 5 were preliminary, not proposed findings of fact) is accepted.

2. Paragraphs 7 and 8 are accepted.

3. Paragraph 9 is rejected as argument, or not supported by the weight of credible evidence.

COPIES FURNISHED:

G. Russell Petersen

G. RUSSELL PETERSEN, P.A. 3426 Ocean Drive

Vero Beach, Florida 32963

Thomas E. Shafovaloff

411 North Park Avenue Suites 12-14

Winter Park, Florida 32789

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

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

BEFORE THE SCHOOL BOARD OF INDIAN RIVER COUNTY, FLORIDA

In Re: The Matter of Mr. Alva Green, CASE NO. 93-327 Employee.

/

FINAL ORDER

Pursuant to Notice, The School Board of Indian River County, Florida, at public meeting on August 24, 1 993, considered the Recommended Order of the designated Hearing Officer, Joyous D. Parrish, issued on July 30, 1 993, in Case No. 93-0327, Division of Administrative Hearings, State of Florida.

There were no written exceptions to the Recommended Order filed with the School Board.

The School Board hereby enters its Final Order adopting the Findings of Fact, Conclusions of Law, and Recommendation as set forth in the Recommended Order, attached hereto and made a part hereof.

The suspension without pay of Mr. Alva Green is hereby confirmed, and his employment with the School Board is hereby terminated.

Considered and adopted by the School Board in a vote of 4 in favor to

0 opposed.

DONE AND ORDERED this 24th day of August, 1993.

Gary W Lindsey, Vice Chairman standing in for Chairman William

L. Marine, Jr.

Dr. Gary W. Norris,

Secretary to the School Board

Filed with the Clerk of the School Board of Indian River County, Florida, this 24th day of August, 1993.

Clerk, School Board of Indian River County, Florida

NOTICE OF JUDICIAL REVIEW

As required by Florida Statute Section 120.59(4), all parties whose substantial interests are affected by the Final Order entered in this case, which constitute final agency action of the School Board in this matter, are entitled to judicial review under the provisions of Florida Statute Section 1 20.68, by Court of Appeals, State of Florida, in West Palm Beach, Florida, in accordance with Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure. Such Petition for Judicial Review must be filed no later than thirty (30) days following the rendering of the Final Order in this case. This Final Order was rendered on the date shown above as the date of filing with the Clerk of the School Board.

CERTIFICATE OF MAILING

The undersigned Clerk of the School Board of Indian River County, Florida, in accordance with the provisions of Florida Statute Section 120.59(4), hereby certifies that a true copy of the foregoing Final Order and Notice of Judicial Review was furnished by U.S. First Class Mail, postage prepaid, to Thomas E. Shafovaloff, Esquire 411 North Park Avenue, Suites 12-14, Winter Park, Florida 32789, Attorney for Alva Green; and G. Russell Petersen, Esquire, 3426 Ocean Drive, Vero Beach, Florida 32963, Attorney for the Superintendent of Schools, this 25th day of August, 1993.

Clerk, School Board Indian River County, Florida.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1994

ALVA GREEN,

Appellant,

vs. CASE NO. 93-2837

L.T. CASE NO. 93-327

INDIAN RIVER COUNTY SCHOOL BOARD,

Appellee.

/ Decision filed October 12, 1994

Appeal from the Division of Administrative Hearings, Indian River County. Thomas E. Shafovaloff, Winter Park, for appellant.

G. Russell Peterson of G. Russell Peterson, P.A., Vero Beach, for appellee.

PER CURIAM.

AFFIRMED.

HERSEY, GLICKSTEIN and KLEIN, JJ., concur.

MANDATE

from

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable John W. Dell, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this date.

DATE: October 28, 1994

CASE NO: 93-2837

COUNTY OF ORGIN: DIVISION OF ADMINISTRATIVE HEARINGS

T. C. CASE NO.: 93-327

STYLE: GREEN VS. INDIAN RIVER COUNTY SCHOOL BOARD

Marilyn Beuttenmuller, Clerk District Court of Appeal Fourth District

ORIGINAL TO: DIVISION OF ADMINISTRATIVE HEARINGS

cc: Joyous D. Parrish Thomas E. Shafovaloff

G. Russell Petersen

Docket for Case No: 93-000327

Orders for Case No: 93-000327