STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-2544

)

KENNETH DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 30, 1998, at West Palm Beach, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, 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: Donald Appignani, Esquire

Phillips, Richard, Rind and Navarrete, P.A. 690 North Kendall Drive

Miami, Florida 33156 STATEMENT OF THE ISSUES

Whether Petitioner's employment should be terminated on the grounds alleged in the Administrative Complaint dated June 3, 1998.

PRELIMINARY STATEMENT

Petitioner proposes to terminate the Respondent's continuing

contract as a foreman of the fire alarm shop based on the results of a criminal background screening. Respondent timely challenged the proposed action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of James P. Kelly, Melinda Wong, and Don Chenicek. These three witnesses are employed by Petitioner. Mr. Kelly is chief of Petitioner's police department. Ms. Wong is the director of Petitioner's employee records and information services.

Mr. Chenicek is the director of Petitioner's intrusion alarm and radio communications departments. Petitioner presented its pre- numbered Exhibits 1, 2, 3, 4, 7, 10, and 13, which were admitted into evidence. Respondent testified on his own behalf and presented the additional testimony of Gary Mitten, Norman Bevans, Larry Tower, George Wayne Hildebrand, Joseph Pitti, Craig Hollingsworth, and Bernadine Bell. Mr. Mitten is the president of Local 1227, the labor union that represents the Respondent.

The remaining witnesses are employed by the Petitioner.

Mr. Bevans is a team leader for Petitioner's central shops and maintenance plant operations. Mr. Tower is a preventative maintenance general foreperson. Mr. Hildebrand is a fire alarm technician. Mr. Pitti is a trades helper. Mr. Hollingsworth is a fire alarms technician. Ms. Bell is an inventory control technician. Respondent presented his pre-numbered Exhibits 2, 3, 4, and 5, each of which was admitted into evidence. Official

recognition was taken of Sections 231.02, 435.03, 435.07,

112.011, and 231.045, Florida Statutes.

A transcript of the proceedings has been filed. At the request of the Respondent, the time for filing post-hearing submissions was extended to September 24, 1998. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. For the past seventeen years, Respondent has been employed by the Petitioner. At the time of the formal hearing, he held the position of a fire alarm foreman. He previously held the positions of a fire alarm technician and a trades helper. Respondent has been a good employee and has a good work record.

2. Respondent is represented by the National Conference of Firemen and Oilers, AFL-CIO, Local 1227. Gary Mitten is the president of that union.

3. Pursuant to its rule making authority and to implement Sections 231.02 and 230.23(5), Florida Statutes, the Petitioner revised its Rule 3.12, effective September 3,1997, to provide as follows:

   Definitions: For the purposes of this policy:

   1. "Prospective Employee" means an applicant who has received an offer of employment.

   2. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of adjudication of guilt.

      1. A prospective or current employee who is recommended to fill a non-instructional position shall, as a condition of employment, file a complete set of fingerprints taken by an authorized law enforcement officer or a designated employee of the District trained to take fingerprints. The prints will be processed pursuant to the requirements of Section 231.02(2)(a), Florida Statutes.

* * *

1. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes.

   
   

   * * *

   
   

   6. Any provision of the law notwithstanding, all personnel currently required to be certified under Section 231.17, Florida Statutes, and by January 1, 1998, for all other personnel currently employed by the District who have not been fingerprinted and screened in the same manner outlined in Section (1) shall submit a complete set of fingerprints taken by an employee of the school or district who is trained to take fingerprints. The prints shall be processed according to Section 231.02(2)(a), Florida Statutes. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. Such action shall be subject to appeal. . . .

2. Section 231.02, Florida Statutes, pertains to the qualifications of school personnel and provides, in pertinent part, as follows:

   1. To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . .

      (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . .

      1. Any provision of law notwithstanding,

         by January 1, 1997, . . . for all other personnel currently employed by any district school system or any other public school who have not been fingerprinted and screened in the same manner outlined in paragraph (a) shall submit a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. The fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . .

         Employees found through fingerprint

         processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . .

      2. Personnel who have been fingerprinted or screened pursuant to this subsection and who have not been unemployed for more than 90 days shall not be required to be refingerprinted or rescreened in order to comply with the requirements of this subsection.1

3. Section 435.03, Florida Statutes, provides, in pertinent part, as follows:

   1. All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.

   2. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense

      prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

      
      

      * * *

      
      

      (n) Chapter 796, relating to prostitution.

      
      

4. Section 435.06, Florida Statutes, provides, in pertinent part, as follows:

   1. When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity.

   2. The employer must either terminate the

      employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.

5. Section 435.07, Florida Statutes, provides exemptions from disqualification, in pertinent part, as follows:

   Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

   1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

      
      

      * * *

      (b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions;

      
      

      * * *

      
      

      (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . .

6. In December 1997, Respondent was fingerprinted pursuant to School Board Rule 3.12. The subsequent screening reflected that Respondent was arrested by the Riveria Beach Police Department on March 13, 1997, and charged with solicitation of prostitution, which is a misdemeanor offense pursuant to Section 796.07, Florida Statutes. This is also a disqualifying offense pursuant to Section 435.03(2)(n), Florida Statutes. Respondent subsequently entered a plea of nolo contendere; he was assessed a monetary fine, and adjudication of guilt was withheld.

7. James P. Kelly is responsible for conducting background screenings of employees as Chief of the Petitioner's police

   department. Melinda Wong is the director of Petitioner's employee records and information services departments. Mr. Kelly and Ms. Wong serve as members of Petitioner's Criminal Background Check Committee, which was formed to consider the results of background screenings and to consider appeals of employees found to have a disqualifying conviction.

8. By memorandum dated January 5, 1998, Respondent was notified as to the results of the background screening and advised, in pertinent part, as follows:

   This past year you were fingerprinted pursuant to Florida Statutes, Section 231.02. Based on the criminal history indicated below, the Criminal Background Check (CBC) Committee will recommend your termination from employment with the District. You have a right to appear before the CBC Committee to appeal that determination and request exemption from the requirement that you be disqualified from further employment. In order for an exemption to be granted, you must demonstrate sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; and any other evidence or circumstances indicating that you will not present a danger if continued employment is allowed.

   On March 13, 1997, in Riveria Beach,

   Florida, you were arrested for solicitation of prostitution for which you subsequently pled guilty. . . .

   
   

9. Respondent appeared before the Committee accompanied by Mr. Mitten, his union representative. Respondent told the Committee that he had been drinking on the night in question and

   had let a friend, who he later identified as Billy Scott, drive his vehicle. Respondent further related that he had fallen asleep and that when he awakened, he and Mr. Scott were being arrested for solicitation of prostitution. Respondent asserted that his plea was one of convenience and entered only after the

   Public Defender told him the plea would not affect his employment.2

10. The Committee thereafter caused the School Police to investigate the circumstances surrounding Respondent's arrest. From that investigation, it was revealed that the supporting arrest documents do not reflect the presence of another person in Respondent's vehicle. Casting further doubt on Respondent's versions of the events was the fact that Respondent was cited as driving with an open container of alcohol. The citation indicates that Respondent was the driver of the vehicle, and not merely a passenger. Further, an interview of the arresting officer led the investigator to conclude that Respondent was in the car alone at the time of the incident. Based on the information that had been made available to it, the Committee concluded that Respondent's version of the events had not been confirmed.

11. Respondent was invited to appear before the Committee to explain the discrepancies between his version of the events and the results of the investigation.

12. Respondent, accompanied by Mr. Mitten, told the Committee that the person driving the car was Billy Scott, who was visiting from California. Respondent also said that

    Mr. Scott had told him that he (Scott) was not formally booked because he had a brother-in-law (Respondent was not certain as to the relationship) on the Riveria Beach Police Department who had

    interceded on his behalf. Respondent thereafter gave the investigator the telephone number and address of Mr. Scott's temporary residence. The investigator verified that the address was a valid address and called the telephone number, leaving a message on an answering machine. Later, a person claiming to be Mr. Scott telephoned the investigator and verified Respondent's version of the events. Subsequent to that call, the investigator received a call from a woman who stated that the investigator had left a message on her answering machine, that she had a son named Billy Scott, that Billy Scott had not been to California since he was an infant, and that Billy Scott did not have a relative who worked for the Riveria Beach Police Department.

13. Based on the information before it, the Committee concluded that Respondent had committed a disqualifying offense and that the evidence offered by Respondent in mitigation of that offense was not credible. Because there was no mitigating evidence within the meaning of Section 435.07(3), Florida Statutes, the Respondent's work record was not considered.3

14. The Committee recommended to the Superintendent that Respondent's employment be terminated. The Superintendent accepted that recommendation and, in turn, recommended to the School Board that Respondent's employment be terminated. The School Board thereafter accepted the recommendation of termination from the Superintendent and voted to terminate Respondent's employment, subject to his right to contest the

    proposed action pursuant to Chapter 120, Florida Statutes.

    
    

15. Respondent's testimony at the formal hearing was similar to the explanation of the events he gave the Committee. That self-serving, uncorroborated testimony is insufficient to establish by clear and convincing evidence that he is entitled to an exemption, as required by Section 435.07(3), Florida Statutes.

16. Respondent asserts that the disqualification does not apply to his position because his position does not require direct contact with students. That assertion is rejected. The evidence is clear that Respondent's job duties require his presence at the various schools of the district at times the children are present. Although Respondent typically checks in at a school's office when he first comes on campus, he thereafter is not monitored or otherwise supervised while on the school campus. This opportunity to have contact with students provides the Petitioner with a sufficient basis to consider him to be an employee who has direct contact with students.4

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

18. Petitioner established that Respondent has sufficient opportunity to be in contact with student while he is on school premises to be considered to be employed in a position of direct contact with students.

19. Petitioner established that Respondent was duly fingerprinted pursuant to the provisions of Section 231.02(2)(b), Florida Statutes, and to School Board Rule 3.12. The subsequent screening reflected that Respondent entered a plea of guilty to the charge of solicitation for prostitution, which is a

    disqualifying offense pursuant to the provisions of Section 435.03(2)(n), Florida Statutes.

20. Pursuant to Section 435.06(2), Florida Statutes, the employer has two viable options: terminate Respondent's employment or grant him an exemption pursuant to Section 435.07, Florida Statutes.

21. Section 435.07(3), Florida Statutes, requires that the disqualified employee establish by clear and convincing evidence that he should not be disqualified from employment. Once Petitioner established that Respondent had been entered a plea of nolo contendere to the charge of solicitation for prostitution, the burden shifted to Respondent to demonstrate his entitlement to an exemption. Respondent has failed to meet that statutory burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that terminates Respondent's employment.

DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998

ENDNOTES

1/ Respondent asserts that Petitioner had no right to require that he be fingerprinted because he was fingerprinted when he was first employed. That assertion is rejected. The testimony of Chief Kelly established that no screening was done on employees at the time Respondent was first employed and any fingerprinting that had been done was no longer available.

2/ Respondent asserted at the formal hearing that he discussed the matter with his supervisor prior to entering the plea and was informed that the plea would have nothing to do with his employment. That uncorroborated testimony is not credible because the person Respondent named as being his supervisor was not his supervisor at the time Respondent would have been considering entering a plea.

3/ Section 435.07(3), Florida Statutes, sets forth the type factors that are to be considered in determining whether an employee should be granted an exemption. Because the employee's work history is not one of those factors, the Committee acted within its discretion in not considering Respondent's work record.

4/ Petitioner takes the position that all of its employees should be considered as having direct contact with the students because there is always the potential for such contact. Whether that position constitutes an invalid, unpromulgated rule as asserted by Respondent need not be addressed because Petitioner established that Respondent has direct contact with students.

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302

West Palm Beach, Florida 33406

Donald Appignani, Esquire

Phillips, Richard, Rind & Navarrete, P.A. 6950 North Kendall Drive

Miami, Florida 33156

Dr. Joan P. Kowal, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard

Suite C-316

West Palm Beach, Florida 33406

Frank T. Brogan, Commissioner Department of Education

The Capitol, Plaza Level 08 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.

1 Respondent asserts that Petitioner had no right to require that he be fingerprinted because he was fingerprinted when he was first employed. That assertion is rejected. The testimony of Chief Kelly established that no screening was done on employees at the time Respondent was first employed and any fingerprinting that had been done was no longer available.

2 Respondent asserted at the formal hearing that he discussed the matter with his supervisor prior to entering the plea and was informed that the plea would have nothing to do with his employment. That uncorroborated testimony is not credible because the person Respondent named as being his supervisor was not his supervisor at the time Respondent would have been considering entering a plea.

3 Section 435.07(3), Florida Statutes, sets forth the type factors that are to be considered in determining whether an employee should be granted an exemption. Because the employee's work history is not one of those factors, the Committee acted within its discretion in not considering Respondent's work record.

4 Petitioner takes the position that all of its employees should be considered as having direct contact with the students because there is always the potential for such contact. Whether that position constitutes an invalid, unpromulgated rule as asserted by Respondent need not be decided because Petitioner established that Respondent has direct contact with students.

Docket for Case No: 98-002544

Orders for Case No: 98-002544