STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD )

)

Petitioner, )

)

vs. ) Case No. 97-2678

)

ROSA GRANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 7, 1997, in West Palm Beach, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lee M. Rosenberg, Esquire

Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Harvey Kaufman, Esquire

4362 Northlake Boulevard, Suite 112 Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUE

The central issue in this case, and the only issue that needs to be addressed, is whether the Respondent made material misrepresentations on her 1994 and 1996 applications for employment with the Petitioner.

PRELIMINARY STATEMENT

At the final hearing in this case, the Petitioner presented the testimony of two witnesses, one of which was the Respondent. The Petitioner also offered eight exhibits, all of which were received in evidence. Following the presentation of evidence by the Petitioner, the Respondent rested her case without offering any additional evidence.

At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on August 18, 1997. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals of all parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a school bus driver employed by the Palm Beach County School Board. The Respondent holds a non- instructional employee annual contract. The Respondent applied for her current position in 1994 and again in 1996. She was not hired when she applied in 1994.

2. On November 28, 1994, the Respondent, as part of her employment application, certified on the Applicant Security Check form that she had never been convicted or received a penalty (imprisonment, probation, fines, court costs, etc.) from a judge or a law enforcement agency, for a crime other than minor traffic

   infractions. Respondent also certified, however, that she received a fine of $110.00 in 1979 for fighting; that she was arrested in 1988 for fighting but not charged; and that she received a ticket in 1992, for which she was put on probation.

3. On a second Applicant Security Check form, signed and dated June 27, 1996, Respondent certified that she had, in fact, been convicted or received a penalty for a crime other than a minor traffic infraction, but only provided the same three incidents previously listed on her November 28, 1994, application.

4. Shortly after the 1996 application, the Petitioner offered the Respondent a job. The Respondent accepted the offer and began work shortly thereafter. Consistent with its usual practice, when the Respondent started work for the Petitioner, the Petitioner obtained a set of fingerprints from the Respondent and sent the fingerprints to the Florida Department of Law Enforcement and to the FBI along with a request for criminal history information regarding the Respondent. By early January of 1997, the Petitioner received information which caused it to believe that the Respondent had a more extensive criminal history than had been reported on her 1994 or her 1996 employment applications. The Petitioner was specifically concerned about four specific incidents not mentioned in the applications on which it believed the Respondent had been fined and/or adjudicated guilty as a result of criminal conduct.

5. The Petitioner inquired further into the matter and also afforded the Respondent an opportunity to explain why she had not disclosed on her applications the four incidents that were of concern to the Petitioner. Thereafter, apparently dissatisfied with the Respondent's explanations, the Petitioner notified the Respondent that she was being charged with "falsification of application," and that she would be suspended and terminated.

6. The only evidence in the record of this case that could arguably be described as tending to prove that the Respondent was convicted of criminal violations she failed to disclose on the 1994 and the 1996 applications is, at best, second-hand or third- hand hearsay, none of which would be admissible over objection in a civil action. In other words, there is no competent substantial evidence that the Respondent was ever convicted of any crime other than the ones she disclosed on the 1994 and 1996 applications.1

   CONCLUSIONS OF LAW

   
   

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

8. In a case of this nature the Petitioner bears the burden of proving the factual basis for its proposed action by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981); Allen v. School Board of Dade County, 571 So. 2d 568 (Fla.

   3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990); and McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).

9. Where, as here, the Petitioner seeks to establish that the Respondent misrepresented her criminal history, the Petitioner must prove, as a minimum, at least three things: (1) that the Respondent had a criminal history; (2) that the Respondent was asked to disclose her criminal history; and (3) that the Respondent, in making such disclosure, materially misrepresented her criminal history. The evidence in this case is insufficient to meet these minimum requirements because the record in this case does not contain any persuasive, competent substantial evidence regarding the nature of the Respondent's criminal history. In the absence of proof that the Respondent was arrested on some specific day for some specific charge or proof that the Respondent pled guilty to or was convicted of some specific crime on some specific date, the Respondent's failure to disclose any such arrest, plea, or conviction cannot be shown to be a misrepresentation. Accordingly, the evidence in this case is insufficient to sustain the charges against the Respondent and the charges should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: (1) dismissing the Petition For Suspension Without Pay And Dismissal

on the basis of insufficient evidence, (2) vacating the Respondent's suspension and restoring the Respondent to her position of employment, and (3) awarding back pay to the Respondent from the date of her suspension until the date she is reinstated to her position of employment.

DONE AND ENTERED this 24th day of October, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1997.

ENDNOTE

1/ Without reaching the question of what probative value it might have had, it is noted that the record in this case does not contain even a copy of the criminal history report furnished to the Petitioner by either the Florida Department of Law Enforcement or the FBI. The closest the record gets in this regard is Petitioner's Exhibit 1, which consists of a copy of a memorandum prepared by someone in the School Police Department that purports to summarize the results of the investigation into the Respondent's criminal history by either the Florida Department of Law Enforcement or the FBI. The author of that memorandum was not called as a witness to either vouch for or explain the circumstances under which the memorandum was prepared or to otherwise lend some trustworthiness to the document. Petitioner's Exhibit 1 shows what the Petitioner believed to be the criminal history of the Respondent, but that document does not constitute reliable proof of the facts asserted in the document.

COPIES FURNISHED:

Lee M. Rosenberg, Esquire Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Harvey Kaufman, Esquire

4362 Northlake Boulevard, Suite 112 Palm Beach Gardens, Florida 33410

Dr. Joan Kowal, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-002678

Orders for Case No: 97-002678