IN THE CIRCUIT COURT FOR THE FIFTH JUDICIAL CIRCUIT IN AND FOR SUMTER COUNTY, FLORIDA

CIVIL DIVISION

JAMES M. SUBLETT,

Plaintiff,

vs. CASE NO. 93-6554

SUMTER COUNTY SCHOOL BOARD,

Defendant.

/

AMENDED FINAL JUDGEMENT

In accordance with the Mandate of the Fifth District Court of Appeals in the above-styled matter, it is

ORDERED AND ADJUDGED that:

1. The Final Judgement entered in this action on June 30, 1992, is hereby VACATED.

   
   

2. The plaintiff's Motion for Summary Judgement is GRANTED and the Defendant, DISTRICT SCHOOL BOARD OF SUMTER COUNTY, shall provide plaintiff with an administrative Hearing, in accordance with the provisions of Florida Statute, 120.57, regarding the termination of employment.

   
   

3. Plaintiff recover from defendant, pursuant to 42 U.S.C. Section 1988, the sum of $5,000.00, for attorney's fees, with costs of $989.17, for the total of $5,989.17, that shall bear interest at the rate of 12 percent per year, for which let execution issue.

ORDERED at Bushnell, Florida, on this 6th day of October, 1993.

/s/ JOHN W. BOOTH

Circuit Court Judge

Copies furnished to: Mark Herdman, Esquire

John Coniglio, Esquire

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RECOMMENDED ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMTER COUNTY SCHOOL BOARD, )

)

Petitioner, )

vs. ) CASE NO. 93-6554

)

JAMES SUBLETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 14, 1994, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Room 222 of the Sumter County Courthouse, 209 North Florida Street, Bushnell, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: C. John Coniglio, Esquire

Post Office Box 1119 Wildwood, Florida 34785

For Respondent: Mark Herdman, Esquire

34650 US Highway 19 North, Suite 308 Palm Harbor, Florida 34684

STATEMENT OF ISSUES

This case raises the question of whether Petitioner has just cause to terminate Respondent from his employment as school custodian. More specifically, Petitioner is attempting to terminate Respondent based upon the mere allegation that Respondent sexually abused his daughter without the necessity to prove those allegations.

PRELIMINARY STATEMENT

This case was presented based upon the mandate in James M. Sublett v.

District School Board of Sumter County, Case No. 92-1726, in the District Court of Appeal of the State of Florida, Fifth District, January, 1993, in which the Sumter County Circuit Court was ordered to enter judgement in favor of Sublett ordering the school board to "afford Sublett a formal hearing before a hearing officer pursuant to Chapter 120 to determine whether he (Sublett) is subject to discharge from employment."

At hearing Petitioner presented the testimony of Dr. Hannah Foster, Dr. Preston Morgan, Deputy Mary Virga, Sumter County Sheriff's Office and Deputy Brenda Terry, Sumter County Sheriff's Office. Petitioner's Exhibits 1-9 were admitted as evidence. Respondent did not present a case other than Respondent's Exhibit No. 1 which was admitted.

Petitioner arranged for the preservation of the record through use of the tape recording device in the Sumter County Commission Chambers where the hearing was held. The tapes of the hearing are transmitted with the record.

The parties were afforded the opportunity to present proposed recommended orders. Respondent filed a proposed recommended order and Petitioner did not. The fact finding suggested by the Respondent's proposed recommended order has been considered and is commented on in an appendix to the recommended order.

FINDINGS OF FACT

1. In March, 1989, Respondent had been working as an assistant custodian in a school over which Petitioner had authority. In his capacity Respondent maintained the school grounds, to include mowing and trimming. He also cleaned inside the building and had keys to that facility.

   
   

2. In March, 1989, Respondent had a teenaged daughter who attended a separate school over which Petitioner had authority.

   
   

3. On March 21, 1989, the daughter made an allegation that Respondent had sexually abused her recently and upon numerous other occasions dating back 14 or

   15 years. As a consequence Respondent was charged in the case of State of Florida v. James Monroe Sublett, Case No. 89-130-CF-A-01, in the Circuit Court of the Fifth Judicial Circuit of the State of Florida, in an for Sumter County, Florida, with the offense of sexually activity with a child.

   
   

4. Petitioner became aware of Respondent's arrest for the offense which led to the criminal charges.

   
   

5. The school board on March 22, 1989, informed Respondent concerning their perception about the pending criminal case as it pertained to Respondent's employment with the school board. Petitioner sent a letter to Respondent which said:

   
   

   Following your arrest under charge of sexual activity with a child by a person in familiar [sic] family authority, the School Board on March 21, 1989, suspended you without pay pending disposition of the case. The beginning date of the suspension is

   March 22, 1989.

   
   

   Dr. Preston Morgan, Superintendent of Schools, provided this information to Respondent.

   
   

6. On August 21, 1989, the state attorney, in the person of the assistant state attorney assigned to the case, entered a nolle prosequi in the case of State of Florida v. James Monroe Sublett, Case No. 89-130-CF-A-01.

7. Petitioner was aware that the nolle prosequi had been entered in the criminal court case when it sent correspondence to the Respondent on August 28, 1989, again from Dr. Morgan. That correspondence stated:

   
   

   I have reviewed the information pertaining to your case and made the following decision:

   
   

   1. To request the Board remove you from leave, without pay, and terminate your employment effective September 5, 1989.

   
   

   This recommendation will be made at the September 5, 1989 School Board meeting. The meeting will be held at the Sumter Educational Center starting at 7:30 p.m.

   
   

   If you decide to challenge this recommendation, and the September 5, 1989 date does not give you adequate time to prepare a defense, contact my office at 793-2315 and request a postponement.

   
   

8. On August 28, 1989, a memorandum had also been addressed from Dr. Morgan to the Sumter County School Board members subject the termination of Respondent. Consistent with the August 28, 1989 letter which had been sent to Respondent the memorandum stated:

   
   

   After reviewing the case of James M. Sublett, employee on leave without pay, I recommend that the Board remove Mr. Sublett from leave, without pay, and terminate his employment effective September 5, 1989.

   
   

9. On September 5, 1989, Respondent wrote to Dr. Morgan to ask for a 30- day postponement of the hearing scheduled for September 5, 1989, to allow Respondent time to prepare a defense.

   
   

10. In response to the request for postponement Dr. Morgan wrote Respondent on September 26, 1989, in which the Respondent was advised:

    
    

    The Board at its meeting of September 5, 1989, tabled my recommendation regarding your termination due to your request for a thirty (30) days postponement to compare a defense in the matter.

    
    

    This is to notify you that this matter will be an agenda for the October 3, 1989 meeting which will be held at the Sumter Educational Center Meeting Room on 301 West McCollum Avenue in Bushnell at 7:30 p.m.

    
    

11. Respondent did not attend the hearing that was held on October 17, 1989 following an additional postponement. Instead, through efforts of counsel, he requested a formal administrative hearing to be held pursuant to Section 120.57, Florida Statutes.

12. At the October 17, 1989 School Board Meeting, the School Board voted to terminate Respondent effective immediately.

    
    

13. Respondent made two additional attempts to have the School Board conduct a formal administrative hearing pursuant to Section 120.57, Florida Statutes, to no avail.

    
    

14. In 1989, Respondent was employed pursuant to a collective bargaining agreement entered into by Petitioner and the Sumter County Essential Support Personnel Association.

    
    

15. When Respondent was unable to have the Petitioner honor the several requests for a Section 120.57, Florida Statutes hearing he brought the circuit court action referred to before. The Sumter County Circuit Court granted Petitioner's summary judgement motion, concluding that the collective bargaining agreement waived Respondent's right to a hearing pursuant to Section 120.57, Florida Statutes, and that having failed to take advantage of his rights to hearing under the collective bargaining agreement he was not entitled to relief before the circuit court. The Fifth District Court of Appeal disagreed with that determination and remanded the case for a Section 120.57, Florida Statutes hearing which was held on April 14, 1994.

    
    

16. The hearing considered whether Petitioner had just cause to terminate Respondent based upon Petitioner's decision to proceed on the assertion that the allegations by the daughter that Respondent had sexually assaulted her, and, without the necessity to prove the allegations, formed a sufficient basis for terminating the Respondent from his employment. Consistent with its position, the Petitioner did not attempt to prove the daughter's allegations of sexual assault by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. For Petitioner to demonstrate just cause for termination it must prove by a preponderance of the evidence that the allegations of sexual misconduct are true, not merely that the allegations were made with no regard for the truth.

It has failed to offer proof directed to the truth of the matter; absent such proof Petitioner does not have grounds for terminating Respondent. See French

v. School Board of Polk County, 568 So.2d 497 (Fla. 2nd DCA 1990) and Taylor v. School Board of Seminole County, 538 So.2d 150 (Fla. 5th DCA 1989).

RECOMMENDATION

Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED:

That a final order be entered by the Petitioner which dismisses the case calling for Respondent's termination and reinstates Respondent with pay and benefits that have accrued since his suspension without pay in 1989.

DONE and ENTERED this 1st day of June, 1994, in Tallahassee, 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 1st day of June, 1994.

APPENDIX Case No. 93-6554

The fact finding proposed by Respondent is subordinate to facts found.

COPIES FURNISHED:

C. John Coniglio, Esquire Post Office Box 1119 Wildwood, FL 34785

Mark Herdman, Esquire Suite 308

34650 US Highway 19 North Palm Harbor, FL 34684

Dr. Preston O. R. Morgan Superintendent of Schools Sumter County School Board

202 North Florida Street Bushnell, FL 33513

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.

Docket for Case No: 93-006554

Orders for Case No: 93-006554