STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-0214

)

ANTHONY COLLIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on May 6, 1999, by videoconference. Petitioner, its counsel, witnesses, and the court reporter participated from Orlando, Florida; Respondent and his counsel appeared in Tallahassee, Florida. The Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County Public Schools Educational Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302-1547 STATEMENT OF THE ISSUE

Petitioner seeks to terminate Respondent's employment based on several alleged criminal convictions. The issue is whether

termination is appropriate under pertinent statutes and the parties' Collective Bargaining Agreement.

PRELIMINARY STATEMENT

After Respondent's timely request for formal hearing in response to a notice of proposed termination, the school board referred the case to the Division of Administrative Hearings where it was assigned and set as described above.

At the hearing the Seminole County School Board (school board) presented Exhibits numbered 1-3 and 5-15, all received in evidence without objection. The school board also presented testimony of these witnesses: Steve Quickel, Tom Brewer, Eugene Holcomb, Paul Dupree, and John Reichert.

Respondent presented no evidence except through cross- examination of Petitioner's witnesses and a copy of the Collective Bargaining Agreement, marked and received in evidence as Joint Exhibit numbered 1.

The Transcript was filed on June 1, 1999, and the parties' Proposed Recommended Orders were filed on June 16 and June 17, 1999.

FINDINGS OF FACT

1. Respondent, Anthony Collier, has been employed by the Seminole County School Board for the last twelve years. He works as a maintenance helper, assisting and supporting skilled members of general maintenance teams, also called "SWAT" teams.

2. Each of the six school board SWAT teams is assigned to a division or zone, with 10 to 15 schools in each zone. The work day is 7:00 a.m. to 3:30 p.m., the same hours as a school day.

3. Mr. Collier changes ceiling tiles, lights, electrical ballasts, locks, and carpeting. He sometimes works independently and frequently works in classrooms or other areas occupied by students. He is described as a good worker by his supervisors and in recent years he has received high performance evaluations.

4. Approximately 12 years ago the school boards were mandated by the Florida Legislature to conduct fingerprinting and background screening of all new instructional and administrative personnel. In 1996 the school boards began the screening of existing employees and in the subsequent year included all non- instructional employees.

5. As a result of the routine screening of Mr. Collier, several arrest records were disclosed. Three of those arrests were prosecuted to a final disposition.

6. On February 19, 1991, in Case No. 90-2172CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to a reduced violation of assault, after having been charged with aggravated assault. He was sentenced to community service.

7. On February 23, 1995, in Case No. 94-3344CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to trespassing, after having been charged with burglary

   of a dwelling and petit theft. He was again adjudicated and sentenced.

8. On September 27, 1997, in Case No. 97-1589CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to 5 counts of burglary of a conveyance and 5 counts of petit theft. He was adjudicated guilty of the 5 counts of petit theft and adjudication was withheld in the 5 counts of burglary of a conveyance. For the latter disposition, Anthony Collier was placed on community control with a special condition that he serve 25 alternative weekends at the John E. Polk Correctional Facility, followed by 3 years' probation.

9. On December 17, 1998, Anthony Collier was charged with violating his conditions of probation by committing domestic violence and by resisting and fleeing arrest. Nothing in the record of this proceeding reveals the outcome of the violation of the probation charge.

10. Burglary of a conveyance is a felony violation; all of the other violations for which Mr. Collier was ultimately adjudicated were misdemeanors.

11. There are some memoranda or correspondence in Mr. Collier's personnel file that reflect school board staff were aware of some of Mr. Collier's criminal charges, but nothing specifically refers to the final disposition of the charges. He was not informed of the recommendation for his termination until

    after the fingerprinting and background screening described above.

12. The Collective Bargaining Agreement covering non- instructional personnel of the school board provides in pertinent part:

    DISCIPLINE AND TERMINATION

    
    

    Section 5.

    
    

    1. Regular employees who have been hired for a minimum of three(3) continuance years

(without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause.

* * *

1. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present:

   
   

   1. Violation of School Board Policy

   2. Violation of work rules

   3. Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor

   4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in

   5. Endangering the health, safety or welfare of any student or employee of the District

   6. The conviction of a felony in the state of Florida or notice of conviction of a substantially

      parallel offense in another jurisdiction

   7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the district, its schools or other work/cost centers

   8. Excessive tardiness

   9. Damage to School Board property

   10. Improper use of sick leave

   11. Failure to perform assigned duties

   12. Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee.

       
       

   13. There are no positions in the maintenance department for helpers or laborers that do not require work at the schools.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 231.3605(2)(c), Florida Statutes.

   15. Section 231.02(2)(a), Florida Statutes (1998) provides that school district 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.

   16. This section precludes Respondent's continued employment in his current position. In the absence of Respondent's explanation of his plea and the circumstances of his arrests, the adjudications of guilt in the certified court records are evidence of his convictions of several crimes. Petit

       theft, for which he was convicted in several counts, is a crime of moral turpitude. In re Garrett, 613 So. 2d 463 (Fla. 1993).

   17. The school district seeks to terminate Respondent pursuant to Section 231.3605, Florida Statutes, which provides that a superintendent may terminate a non-instructional employee for reasons stated in the Collective Bargaining Agreement.

   18. Some case law suggests that a "adjudication withheld" for a felony violation is a "conviction" under certain circumstances. See State v. Gloster, 703 So. 2d 1174, 1176 (Fla. 1st DCA 1997): A judge may withhold adjudication only if the defendant is placed on probation; if probation is successfully completed there is no conviction; if probation is revoked, the defendant must be adjudicated guilty of the charged offense. See also Raulerson v. State, 699 So. 2d 339 (Fla. 5th DCA 1997). But see Proffitt v. Unemployment Appeals Commission, 658 So. 2d 185 (Fla. 5th DCA 1995) and Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st DCA 1997).

   19. If Respondent's unexplained "adjudication withheld" in

       
       

       5 counts of burglary of a conveyance is a "conviction," his termination is plainly contemplated by Section 5.C.6. of the Collective Bargaining Agreement described in paragraph 12, above. But even if Respondent has no felony conviction, those other violations which preclude his continued direct contact with students are cause for his termination under the Collective Bargaining Agreement. Specifically, those violations adversely

       affect his performance or duties (Section 5.C.7.) and make it impossible for him to perform his assigned duties (Section 5. C. 11.).

   20. The evidence presented by the school board to support its intention to terminate Respondent was uncontroverted. The decision is also supported by a rational interpretation of Sections 231.02(2)(a) and 231.3605(2)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Seminole County School Board enter a final order terminating the employment of Anthony Collier.

DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Seminole County School Board Educational Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Ronald G. Meyer, Esquire Meyer and Brooks, P.a.

Post Office Box 1547 Tallahassee, Florida 32302-1547

Dr. Paul J. Hagerty Superintendent of Schools Seminole County School Board Education Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773

Tom Gallagher, Commissioner of Education Department of Education

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

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 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: 99-000214

Orders for Case No: 99-000214