STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2656

)

RAYMOND NEAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell, held a formal hearing in this case on August 10, 1993, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Assistant School Board Attorney Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

For Respondent: John L. Riley, Esquire

2325 Fifth Avenue North

St. Petersburg, Florida 33713 STATEMENT OF THE ISSUES

Whether or not Respondent pled guilty to a charge of lewd and lascivious behavior in the presence of a child and, if so, what disciplinary action is warranted.

PRELIMINARY STATEMENT

By letter dated April 26, 1993, Petitioner, Pinellas County School Board, advised Respondent that at the School Board meeting of May 12, 1993, Petitioner would recommend Respondent's dismissal based on the fact that in 1978, Respondent, Raymond Neal, was arrested and pled guilty to a charge of lewd and lascivious behavior in the presence of a child. Petitioner advised Respondent of his right to request a formal hearing pursuant to Chapter 120, Florida Statutes.

Respondent timely requested a formal hearing and on May 11, 1993, this matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Following responses from the parties, on May 25, 1993, this matter was set for hearing to be held on August 10, 1993, and was heard as scheduled. At the hearing, Petitioner presented the testimony of its superintendent, J. Howard Hinesley and

James Barker, an administrator in Petitioner's Office of Professional Standards for support service employees. Petitioner introduced Exhibits 1 and 2, which were received in evidence. Respondent presented the testimony of his mother, Maggie Jordan, and Respondent testified on his own behalf.

The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

FINDINGS OF FACT

1. During early 1993, the St. Petersburg's Times (the Times), a local newspaper, conducted an investigation of the Pinellas County school board's personnel including compiling arrest records of all its employees. Included in the Times' compilation of arrest records was a record involving Respondent which indicates that on September 27, 1978, Respondent pled guilty to the offense of indecent exposure for which he successfully completed a term of six (6) months probation. Respondent also was obliged, as part of his probation, to serve approximately seven (7) hours of community service at the Salvation Army. Respondent satisfied the community service obligation.

   
   

2. Respondent has been employed by the Pinellas County School Board in excess of twenty (20) years. His on the job performance has been satisfactory, having been disciplined only on one occasion for being asleep while on duty.

   
   

3. Respondent is, and has been since his early childhood, mentally retarded and he suffers from a severe speech impediment.

   
   

4. Respondent was arrested when he relieved himself (urinated) in the presence of three or four minor children. A review of the arrest records and the statements of the arresting officers in the case reveal that Respondent was educably handicapped to the point wherein he had little, if any, understanding of the arrest or the reasons for which he was arrested. The officers questioned whether Respondent understood the Miranda rights read to him when he was arrested. Respondent's difficulty stemmed from his learning disability.

   
   

5. Respondent was employed as a custodian with the school board. In performing his duties as a custodian, Respondent's contact with students and other personnel is minimal.

   
   

6. Other than the subject incident, Respondent has no prior arrest record nor has there been any subsequent arrest record involving Respondent.

   
   

7. Petitioner's administrator, James Barker, who recommended Respondent's dismissal, relates that Petitioner's policy for discipline of support service employees is contained in its Rule 6GX52-7.12 entitled Work Performance and Discharge - Support Service Personnel. Administrator Barker admits that Petitioner's policy allows the Superintendent to impose discipline in a less severe manner than Respondent was disciplined, i.e., a reprimand or suspension. Petitioner's policy calls for progressive discipline. Administrator Barker has also reviewed Respondent's personnel file which indicates that Respondent has been a satisfactory employee throughout his tenure with Petitioner.

   
   

8. Respondent's mother, Maggie Jordan, had little recall of the 1978 incident other than the fact that Respondent entered a "plea of convenience". Ms. Johnson noted that Respondent, while a student, was classified as being

   educably handicapped and was educated with students with special learning disabilities (SLD). Respondent takes his job seriously and would like to return to work for Petitioner as a custodian.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1) Florida Statutes.

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Subsection 230.33(7), Florida Statutes.

    
    

12. Petitioner has implemented a policy which governs the work performance and discharge of support service personnel such as Respondent. Rule 6GX52-7.12 sets forth Petitioner's policy which indicates that the school district generally follows a system of progressive discipline in dealing with deficiencies in employee work performance and/or conduct. Progressive discipline may include, but is not limited to, verbal or written counseling or warning, written reprimand, suspension without pay and dismissal. The severity of the problem or employee conduct will determine whether all steps will be followed or a recommendation will be made for suspension without pay or dismissal. Petitioner imposed the sanction of dismissal upon Respondent, based on an incident which occurred more than 15 years ago and which Respondent had little, if any, understanding of the nature of the charges as reflected in the arresting officers incident report. Based on the fact that Petitioner's policy calls for progressive discipline and, it is undisputed that Respondent has never been the subject of disciplinary action prior to or subsequent to the subject incident, Petitioner failed to follow its policy of imposing progressive discipline in dealing with Respondent's deficiencies in his work performance and/or conduct. Petitioner advanced no rationale as to its reason for deviating from its progressive policy. Consideration was also given to the minimal contact with which Respondent would have with students and other personnel and the fact that, to the extent that there was a problem in 1978, he has clearly demonstrated, based on the lapse of time, that he has rehabilitated himself. These facts coupled with Respondent's satisfactory work record indicates that he should be reinstated to the position of Plant Operator (custodian). I shall so recommend.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a final order reinstating Respondent to a position of Plant Operator (Custodian).

DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 2nd day of November, 1993.

ENDNOTE

1/ This recommendation gives consideration to the fact that Respondent has been on suspension, without pay, from the School Board since May 1993. That suspension is ample penalty for any breach(es) of School Board policy based on the incident which occurred in 1978 for which he pled guilty to an offense of indicent exposure.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2656

Rulings on Petitioner's Proposed Findings of Fact

Paragraph 3. Adopted, as relevant, paragraph 5. of the Recommended Order. Paragraph 4. Adopted, as modified, paragraph 7 of the Recommended Order.

Paragraph 5. Rejected, contrary to the greater weight of evidence and the absence of any showing that support personnel, such as Respondent, had been discharged under similar factual circumstances.

Rulings on Respondent's Proposed Findings of Fact

Respondent's proposed findings of fact are substantially adopted in this Recommended Order.

COPIES FURNISHED:

Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942

Largo, Florida 34649-2942

John L. Riley, Esquire 2325 Fifth Avenue North

St. Petersburg, Florida 33713

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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

Tallahassee, Florida 32399-0400

Dr. J. Howard Hinesley, Superintendent Post Office Box 2942

Largo, Florida 34649-2942

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 93-002656

Orders for Case No: 93-002656