STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs.

RON CARDENAS,

Respondent.

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) Case No. 00-2353

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RECOMMENDED ORDER

A formal hearing was conducted in this case on February 10, 2004, in Pensacola, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

For Respondent: Ron Cardenas, pro se

Department of Corrections No. 202263 Reception and Medical Center

Post Office Box 628

Lake Butler, Florida 32054 STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.

PRELIMINARY STATEMENT

On or about May 16, 2000, Petitioner Escambia County School Board (Petitioner) issued a Civil Service Notice of Disciplinary Action terminating the employment of Respondent Ron Cardenas (Respondent). According to the notice, Respondent was dismissed in bad standing based on his conviction of a crime involving moral turpitude and his unexcused absence from work.

On May 31, 2000, Respondent requested a formal hearing to challenge Petitioner's decision. On June 5, 2000, Petitioner referred this request to the Division of Administrative Hearings.

On July 6, 2000, the undersigned issued a Notice of Hearing scheduling the hearing for October 12, 2000. Subsequently, the parties agreed to cancel the hearing and place the case in abeyance pending resolution of Respondent's criminal appeal.

See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), Rev. gr., 832 So. 2d 103 (Table) (Fla.

November 19, 2002).

After substantial delay, the undersigned issued a Notice of Hearing on January 9, 2004. The notice scheduled the hearing for February 10, 2004, and provided for Respondent to appear by telephone due to his incarceration.

During the hearing, Petitioner presented the testimony of two witnesses and offered four exhibits that were admitted into

evidence. Respondent appeared at the hearing by telephone due to his incarceration but did not testify on his own behalf or present any exhibits for admission into evidence.

Neither party filed a copy of the transcript of the proceeding.

Petitioner filed a Proposed Recommended Order on February 23, 2004. As of the date of issuance of this

Recommended Order, Respondent has not filed proposed findings of fact and conclusions of law. Additionally, one issue involved in Respondent's conviction remains under review by the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State, Case

No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002).

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors.

2. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury.

3. Respondent had a history of poor attendance at work.

   
   

   Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work.

4. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged.

5. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000.

6. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter.

7. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002).

8. The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a

   question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v.

   State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002).

9. At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect.

10. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

12. Section 1012.40, Florida Statutes (2003) (formerly Section 231.3605, Florida Statutes (2001), and its predecessors), states as follows in relevant part:

    1. As used in this section:

       
       

       1. "Education support employee" means any person employed by a district school system who is employed as . . . a member of the

          maintenance department, . . . or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to

          s. 1012.39. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require 20 or more hours in each normal working week.

          
          

       2. "Employee" means any person employed as an educational support employee.

       
       

       (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist.

       
       

       1. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the district school superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a district-wide basis for financial reasons.

          
          

       2. In the event a district school superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement.

13. Petitioner has the burden of proving by a preponderance of the evidence that Respondent was convicted of a crime involving moral turpitude and that he was absent without approved leave from April 17, 2000 through May 17, 2000. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal.") Petitioner has met its burden.

14. Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude as follows:

    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

15. Respondent was convicted on two counts of BUI manslaughter as that offense is defined in Sections 327.35 and 327.351, Florida Statutes (1995). Convictions for BUI manslaughter, like convictions for driving under the influence and/or manslaughter, involve moral turpitude. See Antel v. Dept. of Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056 (Fla. 5th DCA 1988)(manslaughter by culpable negligence); Kiner v. State Board of Education,

    433 So. 2d 656 (Fla. 1st DCA 1977)(manslaughter); Munroe County School Board v. Sharon Fuller, DOAH Case No. 03-1133 (Recommended Order, October 3, 2003)(DUI convictions); Department of Professional Regulation, Division of Real Estate v. June E. Dupee, DOAH Case No. 87-0435 (Recommended Order, August 31, 1987) (DUI/manslaughter). Petitioner had just cause to terminate Respondent's employment based on his convictions for a crime involving moral turpitude.

16. Petitioner's Rule 2.4 and Section 1012.67, Florida Statutes (2003), as well as its predecessor Section 231.44, Florida Statutes (1999), authorize Petitioner to terminate the employment of any employee who is willfully absent from duty without leave. In this case, Respondent's unauthorized absence was willful even though he was in jail at least part of the time. See Ene Stokes as Superintendent of Madison County School Board v. Doctor Randal Choice, DOAH Case No. 89-2022 (Recommended Order, January 2, 1990)(Employee was willfully absent from duty even though he was incarcerated because he

willed the series of acts which set in motion the chain of events that eventually resulted in his incarceration).

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating Respondent's employment.

DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 2nd day of March, 2004.

COPIES FURNISHED:

Ron Cardenas

Department of Corrections No. 202263 Reception and Medical Center

Post Office Box 628

Lake Butler, Florida 32054

Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

Jim Paul, Superintendent Escambia County School Board

215 West Garden Street Pensacola, Florida 32502

Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 323299-0400

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 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: 00-002353

Orders for Case No: 00-002353