STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2721

)

ROBERT D. POTTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on October 24, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

For Respondent: Mark E. Schleben, Esquire

1423 South Ft. Harrison Avenue Clearwater, Florida 34619

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's employment with the Pinellas County School Board as a non-instructional employee should be terminated because of the matters alleged in the Superintendent's letter dated May 2, 1995.

PRELIMINARY MATTERS

By letter dated May 2, 1995, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised the Respondent that effective May 2, 1995, he would be suspended with pay until the May 23, 1995 meeting of the School Board, (Board), at which time a recommendation would be made that the Board sustain the suspension and dismiss him. The basis for this recommendation is that on April 29, 1995, Respondent was observed by a Pinellas County Sheriff's Deputy driving under the influence of alcohol and in possession of marijuana and drug paraphernalia. Thereafter, Respondent requested an administrative hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Sheriff's Deputies Kenneth E. Kanosky and Frank Arena; Kevin L. Lockridge, laboratory director for the Pinellas County Forensic Laboratory; Donald A. Bitting, assistant director of P-Tec, Clearwater and Dr. Martha L. O'Howell, administrator in the Board's

Office of Professional Standards. Petitioner also introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf and presented the testimony of William Angus Clark, a teacher and coordinator of the apprenticeship program at P-Tec, Clearwater; James M. McGaughey, plant operator at P-Tec, Clearwater; Fred Chancellor, Jr., a campus monitor there; Brian Stucker, head plant operator and Respondent's immediate supervisor and Susan M. Indish, Respondent's older sister. Respondent also introduced Respondent's Exhibits A through D.

No transcript was furnished. However, subsequent to the hearing, both counsel 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, the Petitioner, Pinellas County School Board, operated the system of public schools in Pinellas County, and employed both instructional and non-instructional personnel in support of its educational mission. Respondent was employed as a plant operator at P-Tec, Clearwater, a vocational-technical school operated by the Petitioner.

   
   

2. On or about 1:30 AM on April 29, 1995, Pinellas County Sheriff's Deputy Kenneth E. Kanosky, while on duty on West Bay Drive in Largo, observed a truck weaving back and forth in its lane of traffic. At one point, the right rear wheel of the truck passed over the solid line near the curb, and shortly thereafter, the vehicle veered toward the left hand lane of the road. When the vehicle turned off that highway onto another street, Officer Kanosky stopped it and asked the driver for his license and registration. The driver was the Respondent, Robert D. Potter.

   
   

3. When Deputy Kanosky spoke with the Respondent at that time, he noticed that Respondent was somewhat slow in his movements and his speech was slightly slurred. Kanosky also detected an odor of alcohol coming from Respondent, and because of that, he asked Respondent if he had consumed any alcohol. Respondent replied he had drunk two beers. Kanosky then asked the Respondent to dismount the vehicle and when Respondent did so, noticed that he was unsteady on his feet and weaving somewhat back and forth. At this point, Kanosky called for backup which arrived shortly thereafter. Upon the arrival of the backup, Kanosky did a field sobriety test of the Respondent. He administered the walk and turn test, which Respondent failed, and also gave him a one-legged stand test on which Respondent scored a 2, which is inconclusive. Based on the tests, Kanosky arrested the Respondent for DUI.

   
   

4. Incident to this arrest, and as a routine part thereof, Kanosky searched Respondent, and in doing so found a metal container in Respondent's pocket. Kanosky smelled the outside of the container and detected an odor of what, based on his experience, was marijuana. When the container was opened, it was found to contain a partially burned cigarette. Kanosky also found a plastic bag of vegetable material in Respondent's pocket which, based on the deputy's 15 years of experience in law enforcement, he recognized as marijuana. Both substance samples were subsequently transmitted to the Pinellas County Forensic Laboratory where they were tested and determined to be marijuana.

   
   

5. Immediately after the vegetable substance was found, still at the scene of the arrest, Respondent commented that he was "unable to hide it" from the officers. As a result of the search and the discovery of suspected marijuana, Respondent's vehicle was impounded, and he was transported to the Sheriff's

   station for a breath test. After Respondent was advised of his rights to decline the test, at approximately 3:09 AM, more than 1 1/2 hours after being stopped by Deputy Kanosky, Respondent was administered a breath test. The test, which was run on an Intoxilizer 5000, an automatic breath analyzer, consistent with established procedures and protocols, indicated, as to the first sample taken, a blood alcohol level of .107. As to the second sample, taken approximately three minutes later, the reading was .111.

   
   

6. Respondent does not believe he was driving under the influence of alcohol or was driving while impaired on the evening of April 26, 1995. He admits he had had two beers earlier that evening between 11:30 PM and 12:10 AM, and those two beers were the only alcohol he consumed all day. At the time he was stopped he was on his way to pick up from a friend his fishing rod which he planned to use the following day. He claims the marijuana found on his person by the deputies was not his.

   
   

7. Respondent stated that earlier that day he had loaned his truck to an acquaintance by the name of Beach, who was to use it to move property belonging to Beach and his roommate from one apartment to another. The truck was to have been returned earlier in the evening but was not, and when it was returned, Respondent did not look in it or examine it carefully. He merely got in the truck and set off to retrieve his fishing rod.

   
   

8. The first indication Respondent had that any foreign substance was in the vehicle, he claims, was when he felt a plastic bag blowing around his feet on the truck floor. He picked it up and looked at it and assumed it was something which did not belong in his truck. However, he did not dispose of it then but stuck it in his pocket. Shortly thereafter, he asserts, as he was stopped at a red light, he discovered the metal can stuck down between the seat and the seat back. While the light was red, he retrieved it, opened it and saw its contents, and when the light turned green, immediately closed it and stuck it, as well, in his pocket. No sooner had he passed through the intersection, he indicates, than he was stopped by Deputy Kanosky for allegedly driving under the influence of alcohol.

   
   

9. Respondent explains his failure to immediately dispose of the contraband when he discovered it in his truck by claiming he wanted to show it to Beach and discuss it with him. This is not justification.

   
   

10. Respondent believes he did well both on the field sobriety test at the scene of the stop and on the breath analysis at the Sheriff's station. He does not believe he was driving while impaired and notwithstanding the allegation of the deputy to the contrary, claims he indicated he was not drunk and denies he ever said he was. The credible evidence of the deputies and the analysis results indicate otherwise.

    
    

11. Respondent has no criminal record. He has never been arrested nor has he been in jail before. He denies making any incriminating statement to the deputies. About a week after the incident, he spoke with Beach, who had borrowed the truck, and at that time, Beach indicated the marijuana was "probably" his or that of the friend who was also moving. Beach, when advised of the situation in which Respondent found himself, indicated he would speak with Respondent's boss and get it straightened out. He did not do so, however, and the letter of suspension with intent to dismiss was issued.

    
    

12. The Board has had in effect for many years some version of a policy which permits the discipline of support personnel for various reasons. The

    edition of the policy in effect at the time of Respondent's misconduct provides for a system of progressive discipline unless the misconduct of the employee is serious enough to impair the employee's effectiveness or possibly bring the Board's service into disrepute, or unless the employee is publicly under the influence of alcohol or drugs.

    
    

13. Respondent is described by Mr. Bidding, the assistant director at P- Tec, as an individual whose work is both exemplary and outstanding. Respondent has frequent contact with students and supervises those students who work on campus in a work study program with the plant operation. Most of these are youths between 16 and 18 years old, but some are as young as 14. Mr. Bidding is familiar with the charges against the Respondent and, assuming they are true, recognizing the continued quality of Respondent's work, he would still not want the Respondent employed and in contact with students due to the concerns of parents and community about the quality and behavior of Board employees.

    
    

14. Mr. Bidding believes that any charge dealing with substance abuse can have an effect on students, their parents, and other employees, and, indirectly, with businesses through the Business Advisory Committee. While admitting he has not been approached by parents or anyone else about the charges against the Respondent or any other person accused of driving under the influence, it is his position that anyone guilty of that offense should not be working in the school system. As to employees in general, it is a constant subject of concern voiced to him in the community. Both alcohol and the possession of marijuana or drugs, or any type of substance are, to Mr. Bidding, absolute disqualifiers for employment in the system.

    
    

15. Respondent has no prior record or evidence of either alcohol or substance abuse, and there have been no complaints about him even after his involvement under discussion. Before Respondent was suspended, Mr. Bidding saw him on a regular basis and they had contact a minimum of 2 to 3 times a week.

    He has reviewed the Respondent in the past, rated him highly and recommended him for promotion and advancement. He has been very satisfied with the Respondent's work. However, if Respondent is guilty of DUI or the possession of marijuana, in Mr. Bidding's opinion, he cannot effectively serve as a Board employee.

    
    

16. Dr. Martha L. O'Howell, administrator in the Board's Office of Professional Standards, investigated the Respondent's actions and determined the allegations against him were supported by the facts. She recommended dismissal because Respondent's actions were inconsistent with and inappropriate for employees of the Board. She was of the opinion it would negatively effect his performance. He has contact with students and employees are role models for the students. Also, parents and community members do not accept the type of conduct ascribed to Respondent in Board employees. Based on these considerations, she drafted the May 2, 1995 letter for Dr. Hinesley signature which suspended the Respondent and indicated an intent to recommend his dismissal.

    
    

17. Dr. O'Howell admits that if the only allegation against the Respondent were the DUI, the likelihood is she would not consider dismissal appropriate. However, in her opinion, possession of drugs is grounds for dismissal without grounds for going through a progressive series of disciplinary actions, and this misconduct falls under Section F, Misconduct, of the Board policy on the discipline of non-instructional personnel. It is considered misconduct, and since it involved drugs, the former, unwritten policy called for dismissal with no consideration of mitigation or aggravation. This is consistent with the new policy letter which is now extant.

18. Several of the Respondent's coworkers and supervisors testified in his behalf. Mr. Clark, who is the coordinator of the apprenticeship program at P- Tec, who has worked with the Respondent many times over the past four or five years, and who is also a fishing and camping friend of his, found him to be an exemplary employee who always went beyond the call of duty. Mr. Clark indicates Respondent has a reputation within the school community as a hard worker with an above-average character. Respondent has worked with work education students and has been a strong role model for them. Mr. Clark is aware of the charges against the Respondent but has never known Respondent to use marijuana or any controlled substance. In fact, he has heard the Respondent speak out against drugs and alcohol abuse over the last several years. Assuming the allegations against the Respondent are true, Mr. Clark believes he should be given a second chance and an opportunity to overcome this. The Board should help its employees and not "slam dunk" them. On the other hand, employees should demonstrate exemplary conduct and Respondent's misconduct, if true, is not consistent with that of a good role model.

    
    

19. Mr. McGaughey, a plant operator at P-Tec, and an indoor janitor, has worked together with the Respondent for almost 10 years. He is aware of Respondent's reputation in the school community for not ever using drugs, and who supervises those young students who get in trouble in school. Mr. McGaughey is aware of the allegations against the Respondent but he has never known Respondent to use marijuana, either at work or outside of work, over the 10 years they have been associated. Admittedly Respondent drinks a beer or two from time to time, off work. If the allegations involving marijuana are true, nonetheless, Mr. McGaughey does not believe this would interfere with Respondent's ability to do his job.

    
    

20. Mr. Chancellor, a campus monitor for approximately 8 years, has known the Respondent from work at P-Tec and has associated with him every working day and on field trips. He is familiar with the Respondent's reputation for not using drugs, and as being a deterrent force to the use of drugs within the school community. Respondent has helped him in his job as a campus monitor, and he has never known Respondent to use drugs.

    
    

21. Mr. Chancellor is not familiar with the allegations against the Respondent. When advised by counsel of their substance, Chancellor indicated that if they were true, he would still not feel that Respondent's effectiveness as a Board employee would be impaired. Respondent is a hard worker and always did his job and helped others. Mr. Chancellor would not lose respect for the Respondent if it were shown the allegations against him were true and he and would not object to his own child attending school where Respondent worked even in that case.

    
    

22. Respondent's immediate supervisor, Mr. Stucker, who has been employed at P-Tec for 12 years, became aware of the allegations against Respondent when the Respondent informed him of his arrest the day following it. He has seen and observed Respondent on a daily basis over the years they have worked together and has evaluated his performance yearly. In general, he has rated the Respondent as one of the best employees at the school. Not only did Respondent accomplish his own work, but he also did that of other employees as well, and Stucker has recommended Respondent for advancement. At no time, over the period he has known the Respondent, has Respondent ever appeared to be impaired by alcohol or drugs. Even if the allegations against Respondent are true, that one incident would not impair his effectiveness in the future. Respondent is a hard worker, and people miss him and ask for him to come back.

23. Respondent's older sister, Ms. Indish, sees him on a regular basis, and before she moved to Ocala approximately 14 months ago, was his neighbor. She would likely know it if Respondent used marijuana, and she has never known him to use it or any other drug during the time he worked for the Board. In fact, he has taken the position that he did not want people around him who used drugs in their life. He is a social drinker who rarely overindulges in alcoholic drink.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. The Board seeks to dismiss Respondent because of his being found driving while under the influence of alcohol and in the possession of marijuana, claiming this activity constitutes a violation of School Board Policy 6Gx52- 7.12(2)(f) and (g). The burden of proof in this case is to establish the Respondent's misconduct and its disqualifying aspects by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990); Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990).

    
    

26. Consistent with the provisions of Section 230.33(7) and 231.3605(2)(b), Florida Statutes, the Superintendent of Schools has the power to discipline educational support employees. If the employee has, as here, successfully completed the probationary period, his status as an employee shall continue from year to year unless the Superintendent terminates the employee for reasons stated in the collective bargaining agreement or, in a case where there is no collective bargaining agreement, in a school board rule.

    
    

27. Pursuant to Article 10, "Employee Rights", of the collective bargaining agreement between the Pinellas County School Board and the School Employees Union, the private life of an employee is her or her own so long as it does not impinge upon the ability of the employee to perform his or her duties and to meet all of his or her responsibilities. Here, the Board has determined that Mr. Potter's driving while under the influence of alcohol, along with his being discovered in possession of marijuana, impinges upon his ability to perform his duties and to meet all of his responsibilities. While there have been no recorded complaints of Respondent's misconduct from students, parents, faculty or the general public as a result of this incident, and while there has been substantial evidence that historically, prior to this incident, Respondent has performed in an exemplary manner, there is evidence from Board personnel, including his superiors, that the community knowledge of Respondent's misconduct interferes with his effectiveness as an employee due to his close working relationship with students and other Board employees. This determination is within the Board's authority to make.

    
    

28. Article 29 of the Collective Bargaining Agreement indicates that the Board will follow a system of progressive discipline regarding its employees and that the severity of the problem or the employee behavior will determine whether all steps will be followed or whether suspension or dismissal ab initio is appropriate.

    
    

29. School Board Policy 6Gx52.7.12, supplemented effective October, 1991, and dealing with work performance and discharge - support service personnel, provides for a system of progressive discipline in dealing with "deficiencies in employee work performance and/or conduct." The policy directs:

    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. Employee conduct which may lead to a recommendation for suspension and/or

    dismissal during the term of appointment includes...:

    * * *

    1. Misconduct, which is defined as conduct that is serious enough to impair the employee's effectiveness in the school district or which may bring the service of the School Board of Pinellas County into disrepute.

    2. Being publicly under the influence of alcoholic beverages or drugs.

       
       

30. Notwithstanding Respondent's protestations, the evidence of record is sufficient to support a finding that Respondent was under the influence of alcohol when he was stopped by the Sheriff's deputy on the April 29, 1995. Even the Board's representative, Dr. O'Howell, indicates that had that been the totality of Respondent's misconduct he would not have been recommended for dismissal.

    
    

31. Public DUI is not the totality of Respondent's misconduct, however. He was found, at the same time, to be in possession of marijuana. Given that the marijuana was not his, and accepting, arguendo, his explanation for having it in his possession, his failure to dispose of it when he discovered it was inordinately poor judgement, and his decision to retain possession of it, for

    whatever reason other than to turn it over to the police, constitutes, under the law, criminal misconduct. It is this misconduct which, the better weight of the evidence has established, impairs his effectiveness as an employee who must deal with students, and which may bring the service of the Board into disrepute. His misconduct, therefore, constitutes a legitimate basis for the Board's failure to follow a course of progressive discipline in this case and to proceed immediately to suspension and discharge.

    
    

32. In that regard, however, while suspension without pay is a proper punishment in this instance, discharge appears draconian. There have been no complaints from students, parents, faculty, or the public regarding Mr. Potter's misconduct. To be sure, it is not condoned. However, his supervisors, his coworkers, and others all have indicated he is a valuable and productive employee. If his suspension without pay from April 29, 1995 to a date in the future when the Board agrees to his return to duty is implemented, Respondent will have paid a serious fine for his misconduct and will have undoubtedly learned a valuable lesson. Further, by giving Respondent a second chance and returning his to duty, the Board will retain a productive and valuable employee.

RECOMMENDATION

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

RECOMMENDED that Robert Potter be suspended without pay from May 2, 1995 until such time as the School Board of Pinellas County shall vote to return him to duty at its next meeting for the consideration of this Recommendation but that he not be dismissed from employment with the Board.

RECOMMENDED this 30th day of November, 1995, 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 30th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER

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

FOR THE PETITIONER:

FOR THE RESPONDENT:

1. - 4. Accepted and incorporated herein.

5. Accepted and incorporated herein except for last

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

Mark E. Schleben, Esquire

1423 South Ft. Harrison Avenue Clearwater, Florida 34619

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools Post Office Box 2942 Largo, Florida 24649-2942

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs. DOAH CASE NO.: 95-2721

ROBERT POTTER,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated on or about May 2, 1995, the superintendent of Schools for Pinellas County, Florida, recommended to the Pinellas County School Board that ROBERT POTTER be dismissed from his employment for the reasons stated in the letter; and

WHEREAS, said ROBERT POTTER timely requested an administrative hearing; and

WHEREAS, an administrative hearing was conducted on October 24, 1995, before Hearing Officer Arnold Pollock, Division of Administrative Hearings; and

WHEREAS, the entire record of the case including the Hearing Officer's Recommended Order, Petitioner's Proposed Findings of Fact, the Respondent's Proposed Findings of Fact, the Transcript of Proceedings with Exhibits and the Petitioner's Exceptions to the Hearing Officer's Recommended Order and the Respondent's Exceptions to the Hearing Officer's Findings of Fact, Conclusions of Law and Recommended Order have been carefully reviewed, it is

ORDERED AND ADJUDGED that Respondent's Exception No. 1 to Paragraph 2 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that on April 29, 1995, the Respondent's vehicle passed over the side line near the right hand curb on West Bay Drive in Largo and that the vehicle veered towards the left hand side of the road. (Transcript of Proceedings, Testimony of Deputy Kenneth Kanoski, Page 6, Lines 23-25 and Page 7, Lines 1-5.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 2 to Paragraph 3 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that on April 29, 1995, the Respondent was slow in his movements, that his speech was slightly slurred, that the Respondent was unsteady on his feet or weaving, and that the Respondent failed a field sobriety test. (Transcript of Proceedings, Testimony of Deputy Kenneth Kanoski, Page 7, Lines 18-20 and Page 8, Lines 1-19.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 3 to Paragraph 4 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that both substance samples were subsequently transmitted to the Pinellas County Forensic Laboratory where they were tested and determined to be marijuana; that the chain of custody of the material tested was properly maintained; and that the materials that were found by Deputy Kanoski on April 29, 1995, were the same materials tested at the Pinellas County Forensic Laboratory. (Transcript of Proceedings, Testimony of Deputy Kenneth Kanoski, Page 11, Lines 22-25 and Page 12, Lines 6-11; Testimony

of Kevin Lothridge, Page 2, Lines 4-25 and Page 7, Lines 6-25; Petitioner's Exhibit No. 3.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 4 to Paragraph 5 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the Finding that the Respondent stated to Deputy Kanoski on April 29, 1995, "I can't hide it from you." (Transcript of Proceedings, Testimony of Deputy Kenneth Kanoski, Page 10, Lines 10-14; Testimony of Robert Potter, Page 193, Lines 9-10.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 5 to Paragraph 5 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that the Intoxilizer 5000 test on the Respondent was run consistent with established procedures and protocols. (Transcript of Proceedings, Testimony of Deputy Frank Arena, Page 43, Lines 22-25, Page 44, Lines 1-25 and Page 45, Lines 1-20; Petitioner's Exhibit No. 1.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 6 to Paragraph 6 of the Hearing Officer's Recommended Order is denied in that "he [Respondents claims the marijuana found on his person by the deputies was not his" is an accurate statement that was supported by substantial competent evidence. (Transcript of Proceedings, Testimony of Robert Potter, Page 185, Lines 3-5.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 7 to Paragraph of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that the Respondent stated that earlier that day he had loaned his truck to an acquaintance by the name of Beach, who was to use it to move property belonging to Beach and his roommate from one apartment to another. The truck was to have been returned earlier in the evening but was not, and when it was returned, Respondent did not look in it or examine it carefully. He merely got in the truck and set off to retrieve his fishing rod. (Transcript of Proceedings, Testimony of Robert Potter, Page 185, Lines, 14-25, Page 186, Lines 1-2 and 20-25, Page 18, Lines 1-16.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 8 to Paragraph 8 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding on how the Respondent realized that a foreign substance was in his vehicle on April 29, 1995. (Transcript of Proceedings, Testimony of Robert Potter, Page 188 Lines 16-22, Page 189, Lines 8-15, Page 190, Lines 9-25, Page 191, Lines 1-20.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 9 to Paragraph 9 of the Hearing Officer's Recommended Order is denied in that it is within Hearing Officer's authority to determine the Respondent's desire to show the substance to Mr. Beach was not a justification for taking possession of it.

Section 120.5(1)(b)9, Florida Statutes.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 10 to Paragraph 10 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that there was impairment of the Respondent's faculties. (Transcript of Proceedings, Testimony of Deputy Kenneth Kanoski, Page 8, Lines 12-19; Testimony of Deputy Frank Arena, Page 46, Lines 1-12; Petitioner's Exhibit No. 1.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 11 to Paragraph 12 of the Hearing Officer's Recommended Order is denied in that the School Board Policy at the time of the incident was consistent with the provisions of the Collective Bargaining Agreement. The Respondent's Exception to No. 11 to Paragraph 12 of the Hearing Officer's Recommended Order is accepted in that the School Board Policy 6Gx52-7.12 does not state that progressive discipline will not be followed if the employee's effectiveness is impaired or it may possibly bring the Board's service into disrepute or unless the employee is publicly under the influence of alcohol or drugs. The Respondent's Exception to No. 11 to Paragraph 12 of the Hearing Officer's Recommended Order is denied in that the School Board Policy 6Gx52-.12 states that 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'S Exhibit No. 4 and Agreement Between the School Board of Pinellas County, Florida and School Employee Union, Local 1221, Firemen & Oilers 1994-9.) It is further

ORDERED AND ADJUDGED that that the Respondent's Exception No. 12 to Paragraph 13 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that the Respondent has frequent contact with students and supervised those students who worked on campus in a work study program with the plant operation. (Transcript of Proceedings, Testimony of Donald Bitting, Page 84, Lines 6-18; Testimony of William Clark, Page 134, Lines 22-25 and Page 135, Lines 1-2; Testimony of James McGaughey, Page 148, Lines 15-25.) Additionally the Respondent's Exception No.

12 to Paragraph 13 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that Mr. Bitting is familiar with the charges against the Respondent and has knowledge regarding the concerns of parents and the community about the quality and behavior of Board employees. (Transcript of Proceedings, Testimony of Donald Bitting, Page 84, Lines 22-25 and Page 85, Lines 5-18.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 13 to Paragraph 14 of the Hearing Officer's Recommended Order is denied in that Mr. Bitting's opinion was given in response to Respondent's counsel's cross-examination and was admitted at the hearing without objection from Respondent. (Transcript of Proceedings, Testimony of Donald Bitting, Page 93, Lines 14-1.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 14 to Paragraph 15 of the Hearing Officer's Recommended Order is denied in that the Hearing Officer found in Paragraph 31 of the Recommended Order that the misconduct of the Respondent while off duty impairs his effectiveness as a School Board employee and that there was substantial competent evidence to support this finding. (Transcript of Proceedings, Testimony of Donald Bitting, Page 93, Lines 5-15; Testimony of Dr. Martha O'Howell, Page 9, Lines 14-25, Page 98, Line 1-12.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 15 to Paragraph 16 of the Hearing Officer's Recommended Order is denied in that Dr. Martha O'Howell as an administrator in the Office of Professional Standards is responsible for investigating allegations of employee misconduct and making recommendations to the Superintendent regarding what, if any, disciplinary action should be taken and that her opinion of whether the Respondent's actions on April 29, 1995, negatively affected his job performance is relevant in order to establish if the Respondent's conduct was serious enough to impair his effectiveness in the school district or bring the service of the School Board into disrepute. (Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 95, Lines 15- 18, Page 9, Lines 10-25, Page 98, Lines 1-12, Petitioner's Exhibit No. 4.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 16 to Paragraph 17 of the Hearing Officer's Recommended Order is denied in that Dr. Martha O'Howell as an administrator in the Office of Professional Standards is responsible for investigating allegations of employee misconduct and making recommendations to the Superintendent regarding what, if any, disciplinary action should be taken and that her opinion is relevant in order to determine if the Respondent's actions on April 29, 1995, were severe enough to follow all steps of progressive discipline or recommend dismissal; and that the provisions in the School Board Policy 6Gx52-.12 are consistent with the provision found in Article 29 , Section G(4) of the Agreement Between the School Board of Pinellas County, Florida and School Employee Union, Local 1221, Firemen & Oilers 1994-9. Additionally, the Respondent's Exception No. 16 to Paragraph 17 of the Hearing Officer's Recommended Order is accepted regarding the fact that the Board has previously

reinstated one employee after serving a 196 day suspension without pay who admitted to use of marijuana on the day of his father's death. It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 1 to the Hearing Officer's Recommended Order, Conclusion of Law No. 24, that the Division of Administrative Hearings has jurisdiction over the parties and subject matter in the case is denied in that Respondent submitted himself to such jurisdiction by requesting a hearing and the hearing resulted from the fact that a substantial interest of a party was being determined by an agency. Therefore, Division of Administrative Hearings has jurisdiction [Section 120.5, Florida Statutes (1993)] and in that the exclusive means provided in the Collective Bargaining Agreement for the Respondent to appeal his proposed termination is through the Administrative Procedures Act, Chapter 120, Florida Statutes (1993), Collective Bargaining Agreement Between Pinellas County School Board and School Employees Union, Local 1221 Fireman and Oilers, 1994-9, Article 24-A. It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 18 to the Hearing Officer's Recommended Order, Conclusion of Law No. 2, is denied in that there is competent substantial evidence in the Record that the Respondent's misconduct interferes with his effectiveness as a School Board employee (Transcript of Proceedings, Testimony of Donald Bitting, Page 85, Lines 1-18; Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 9, Lines 15-25 and Page 98, Lines 1-12.) and in that where the Respondent's misconduct impairs his effectiveness as an employee is in fact the applicable standard [Pinellas County School Board Policy 6Gx52-.12(2)(f)) and in that the Hearing Officer did not abdicate his responsibility, but rather did make a specific Finding that the Respondent's misconduct impaired his effectiveness as an employee of the Pinellas County School Board (Hearing Officer's Recommended Order, Page 14, Paragraph 31). It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 19 to the Hearing Officer's Recommended Order, Conclusion of Law No. 29, is denied in that the cited School Board Policy does not conflict with Article 10 of the Collective Bargaining Agreement. it is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 20 to the Hearing Officer's Recommended Order, Conclusion of Law No. 30, is denied in that the Hearing Officer finds that the Record is sufficient to support a Finding the Respondent was under the influence of alcohol. In order for such evidence to be sufficient it must provide a preponderance of the evidence. Additionally, the Hearing Officer found at Finding of Fact No. 10 that the credible evidence presented at the hearing indicated that the Respondent was under the influence of alcohol. (Hearing Officer's Recommended Order, Finding of Fact No. 10.) Dileo v. School Board of Dade County, 569 So.2d 883 (Fla.3rd DCA 1990); Accord, Allen v. School Board of Dade County, 571 So.2d 568 (Fla.3rd DCA 1990). It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 21 to the Hearing Officer's Recommended Order, Conclusion of Law No. 31, is denied in that the Respondent was found to be in knowing possession of marijuana (Hearing Officer's Recommended Order, Conclusion of Law No. 31) and in that knowing possession of marijuana is criminal misconduct [Section 893.13, Florida Statutes (1993)] and in that there was competent substantial evidence in the Record that the conduct of the Respondent does in fact impair his effectiveness as an employee. (Transcript of Proceedings, Testimony of Donald Bitting, Page 85, Lines 1-18; Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 9, Lines 15-

25 and Page 98, Lines 1-12.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 22 to the Hearing Officer's Recommended Order, Conclusion of Law No. 32, is accepted in that suspension without pay is not a proper punishment in this instance. Dismissal is an appropriate punishment. It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 23 is denied in that due to the Respondent's misconduct of driving while intoxicated and being in possession of marijuana the Respondent should not be reinstated to his position but should rather be dismissed. It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 24 is denied in that there is competent substantial evidence in the Record to establish that the presence of an employee who is willing to possess an illegal drug and drive under the influence of alcohol presents a safety and security risk to students and employees at the school where they are employed (Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 97, Lines 21-25 and Page 98, Lines 1-12) and in that an employee who possesses an illegal drug and drives while under the influence of alcohol does not meet the expectations of this community of the type of individual who will be employed by the School Board. (Transcript of Proceedings, Testimony of Donald Bitting, Page 85, Lines 7-18; Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 98, Lines 9-12.) It is further

ORDERED AND ADJUDGED that the Respondent's Exception No. 25 is denied in that whether or not a School Board employee's behavior presents good role model for the students they come in contact with is a relevant consideration and in that there is competent substantial evidence in the Record to support the conclusion that the Respondent's conduct in this matter presents a poor role model for the students which he comes in contact with (Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 97, Lines 21-25 and Page 98, Lines 1-12.) It is further

ORDERED AND ADJUDGED that the Hearing Officer's Recommended Order is hereby ACCEPTED AND ADOPTED and incorporated herein in its entirety with the exception of the recommended penalty. It is further

ORDERED AND ADJUDGED that the Petitioner's Exception to the Hearing Officer's Recommended Penalty is accepted and adopted. ROBERT POTTER shall be dismissed from his employment for the following reasons:

1. The presence of an employee who is willing to possess an illegal drug and drive under the influence of alcohol presents a safety and security risk to students and employees at the school where they are employed. (Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 97, Lines 21-25 and Page 9, Lines 1-12.)

2. A Pinellas County School Board employee who possesses an illegal drug and drives while under the influence of alcohol presents a poor role model for the student which they come in contact with. (Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 97, Lines 21-25 and Page 98, Lines 1-12.)

   
   

3. An employee who possesses an illegal drug and drives while under the influence of alcohol does not meet the expectations of this community of the type of individual who will be employed by the School Board. (Transcript of Proceedings, Testimony of Donald Bitting, Page 85, Lines 7-18; Transcript of Proceedings, Testimony of Dr. Martha O'Howell, Page 98, Lines 9-12.) It is further

ORDERED AND ADJUDGED that ROBERT POTTER is hereby dismissed from his employment, effective January 10, 1996. It Is further

ORDERED AND ADJUDGED that ROBERT POTTER is hereby notified of his right to appeal this Order to the Second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the Clerk of the Court and on Keith B. Martin, Assistant School Board Attorney, within thirty (30) days of this date.

Dated: January 10, 1996.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Andrea M. Thacker

Chairman

Attest: Ex-officio Secretary

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DISTRICT COURT OPINION

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND, IF FILED, DETERMINED DISPOSITION THEREOF.

ROBERT DALE POTTER, IN THE DISTRICT COURT OF APPEAL OF FLORIDA

Appellant, SECOND DISTRICT

vs. CASE NO. 96-00509

DOAH CASE NO. 95-2721

PINELLAS COUNTY SCHOOL BOARD,

Appellee.

/

Opinion filed November 13, 1996.

Appeal from the Pinellas County School Board. Mark Schleben, Clearwater for Appellant.

Keith B. Martin, Assistant School Board Attorney, Largo, for Appellee. PER CURIAM

Affirmed.

FRANK, A.C.J., and PARKER, J., and FICARROTTA, GASPER J., ASSOCIATE JUDGE,

Concur.

Docket for Case No: 95-002721

Orders for Case No: 95-002721