STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 00-2668
)
GREGORY E. PAYNE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on
October 19, 2000, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ana I. Segura, Esquire
School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
For Respondent: Lisa N. Pearson, Esquire
United Teachers of Dade
2929 Southwest Third Avenue, Coral Way Miami, Florida 33132
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges.
If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate his
employment.
PRELIMINARY STATEMENT
On June 21, 2000, the School Board of Miami-Dade County (School Board) suspended Respondent from his position as a Data Input Specialist II at D. A. Dorsey Educational Center and initiated a dismissal proceeding against him. Respondent subsequently requested a hearing on the matter. On or about June 30, 2000, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.
On or about August 14, 2000, the School Board served on Respondent (by facsimile transmission and United States Mail) its Notice of Specific Charges. In its Notice of Specific Charges, the School Board alleged that Respondent had engaged in the following conduct, which warranted his dismissal on the grounds of "immorality" (Count I), "conduct unbecoming a School Board employee" (Count II), and "conviction of a crime involving moral turpitude"(Count III):
On or about September 8, 1999, Respondent Gregory Payne (hereinafter "Respondent"), was arrested for Aggravated Child Abuse.
On or about September 9, 1999, the court entered an Order of Pretrial Release Conditions.
On or about October 18, 1999, in the case of State of Florida v. Gregory Payne, Circuit Court Case No. F-99-30932, the State Attorney's Office filed an Information for Aggravated Child Abuse against Respondent stating as follows: "GREGORY PAYNE, on or about September 8, 1999,. . . did unlawfully, feloniously commit an aggravated battery upon D. J. J., a child of sixteen
(16) years of age, by HITTING HIM IN THE HEAD WITH A HAMMER AND BY PLACING A HOT IRON ON HIS FACE, and during the commission of such felony the defendant committed an aggravated battery, in violation of s. 827.03, Fla. Stat. . . . against the peace and dignity of the State of Florida."
On or about October 26, 1999, Respondent Gregory Payne plead guilty to the charges.
An Order of Community Control based on a judgment of guilty of the offense was entered by the court on or about October 26, 1999.
On or about October 26, 1999, the Court entered an Order of Probation for the period of one year.
On or about November 12, 1999, a Judgment adjudicating Respondent guilty of aggravated child abuse, [Section] 827.03(1) was entered by the court and recorded by the Clerk of Circuit Court in the public records, book 18861 page 1359, of the Miami- Dade County public records. . . .
At the final hearing held in this case on October 19, 2000, the following witnesses testified: Virginia Bradford, Respondent, Dia Falco, Sara Payne, and Shara Payne. In addition to the testimony of these witnesses, 18 exhibits (Petitioner's Exhibits 1 and 3 through 19) were offered and received into evidence.
At the close of the evidentiary portion of the hearing on October 19, 2000, the undersigned announced on the record that post-hearing submittals had to be filed no later than 20 days following the Division's receipt of the transcript of the hearing. The hearing Transcript (consisting of one volume) was filed on November 27, 2000. The School Board and Respondent both timely filed their post-hearing submittals on December 18, 2000. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The School Board is responsible for the operation, control, and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida.
Respondent is now, and has been since 1986, employed by the School Board as a Data Input Specialist II.
Prior to the effective date of his suspension pending the outcome of the instant dismissal proceeding (that is, prior to the close of business on June 21, 2000), Respondent was assigned to the D. A. Dorsey Educational Center (Dorsey), an adult education center.
His suspension pending the outcome of the instant dismissal proceeding is the only disciplinary action that has been taken against him in the approximately 15 years he has worked for the School Board.
In discharging his duties as a Data Input Specialist II at Dorsey, Respondent was not responsible for supervising students, nor did he have reason to be with them alone.
As a noninstructional employee of the School Board occupying a Data Input Specialist II position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract), effective from July 1, 1999, to June 30, 2002.
Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." It provides, in pertinent part, as
follows:
Upon successful completion of the probationary period, the employees' employment status shall continue from year
to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.
The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s).
Where the Superintendent recommends termination of the employee, the 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 by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice.
Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal.
Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges.
The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented.
The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals.
The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal.
Dismissals are not subject to the grievance/arbitration procedures.
Respondent has a seven-year-old daughter, J. Since his wife passed away in 1994, he has raised J. as a single parent.
Four years ago, Respondent opened his home to a 13- year-old boy, D. J. J., whose family had been evicted from the apartment in which they had been living. D. J. J.'s stepmother had just died and his father was unable to properly care for him.
From the time that D. J. J. first became a member of Respondent's household until the incident that is the focus of the instant case (Subject Incident), Respondent treated D. J. J. like a son. D. J. J., however, did not always reciprocate and act like a dutiful son. At times, he was rude and disrespectful toward Respondent and refused to follow Respondent's instructions. On three or four occasions prior to the Subject Incident, he even used physical force against Respondent. Respondent responded to these physical attacks, not by hitting
D. J. J. back, but with words designed to impress upon D. J. J. that he needed to act appropriately and respect Respondent.
While Respondent's words may not have had any long-lasting impact on D. J. J., by talking to D. J. J., Respondent was able to resolve the situation without the use of any force.
D. J. J. was also physically aggressive toward Respondent's sister, Sara Payne, and Respondent's niece, Shara Payne.
On one occasion, during a visit to Sara's home,
D. J. J. asked Sara "to have sex with him." When Sara attempted to get D. J. J. to leave, he refused and grabbed Sara by the arms. Sara, however, was able to free her arms from D. J. J.'s grasp and push D. J. J. out the door. Sara reported to Respondent, prior to the Subject Incident, what had happened during D. J. J.'s visit.
Respondent was also made aware, prior to the Subject Incident, of an instance where D. J. J. had walked into his niece's, Shara's, classroom at Miami Northwestern High School, demanded that she leave with him, and, when she refused, pulled her by arm, until a teacher intervened by calling school security.
There is no indication that either Sara or Shara suffered any injuries as a result of the above-described incidents.
The Subject Incident occurred on September 8, 1999.
On that date, D. J. J. was 16 years of age, stood approximately five feet, two inches tall, weighed 160 pounds, 1/ and had a muscular build. Respondent was approximately 25 years older, 13 inches taller, and 40 pounds heavier than
D. J. J.
Upon returning home from work on September 8, 1999, Respondent reprimanded D. J. J. for not having done his chores around the house. D. J. J., in turn, without saying anything, picked up his house key and headed to the front door "as if he was going to leave."
When he saw D. J. J. walking toward the door, Respondent asked D. J. J. for the house key.
D. J. J. ignored Respondent's request. He continued walking, silently, toward the door.
Respondent followed D. J. J., "sticking close to [D. J. J.] because [Respondent] didn't know [D. J. J.'s] intention."
As Respondent repeated his request that D. J. J. hand him the key, D. J. J. went into the kitchen, took a hammer, laid the key down on the counter, and struck the key with the hammer with sufficient force to bend the key. D. J. J. then threw the key to the floor, moved toward Respondent, and struck Respondent in the jaw with a closed fist.
After punching Respondent, D. J. J. walked into the living room and picked up a key chain containing Respondent's house and car keys. (Respondent did not have another key to the house.)
The front door was locked from the inside 2/ and therefore D. J. J., if he wanted to exit the house (by conventional means), needed the house key to unlock the front door. (All of the house's windows, except for the "safety window," had bars on them, and the safety window was locked, with no key readily available to unlock it.)
Concerned that he and his daughter (who was also in the house at the time) might be locked in the apartment if
D. J. J. left with the house key, 3/ Respondent repeatedly requested that D. J. J. give him back his keys.
Without saying a word, D. J. J. walked into his bedroom and sat down on his bed. Respondent followed him, demanding that D. J. J. return the keys. He told D. J. J., "you can leave and it won't be no trouble, just give me the keys."
Maintaining his silence, D. J. J. stood up and started walking toward the bedroom door where Respondent was standing.
As D. J. J. approached Respondent, 4/ Respondent took a hot (plugged-in and turned-on) iron that was on a nearby ironing board in the bedroom and struck D. J. J. with the iron
in the face, thereby bruising and burning the side of D. J. J.'s face.
A scuffle ensued, with D. J. J. trying to take the iron away from Respondent. During the scuffle, Respondent was burned on the leg by the iron, as it fell to the floor.
D. J. J. then exited his bedroom and walked into the hallway, with Respondent following behind him. 5/ The hammer that D. J. J. had used to bend his house key was in the hallway. Respondent picked the hammer up and hit D. J. J. on the back of head with it.
Neither Respondent's hitting D. J. J. on the back of the head with the hammer, nor Respondent's striking D. J. J. on the side of the face with the hot iron, was reasonably necessary to protect Respondent or his daughter against D. J. J. or to further any other legitimate purpose.
Bleeding from the head wounds Respondent had inflicted, D. J. J. went to the telephone that was in the hallway and called the police, who shortly thereafter arrived on the scene.
After speaking with D. J. J. and Respondent, and then examining D. J. J.'s injuries, the police placed Respondent under arrest for "aggravated child abuse."
The police waited until Respondent's sister, Tatiana (who had agreed to care for J. in Respondent's absence), arrived at the house before transporting Respondent from the scene.
Respondent spent the night in jail.
The following day, September 8, 1999, Respondent was released pursuant to an Order of Pretrial Release Conditions, which, among other things, prohibited Respondent "from having any contact with" D. J. J. and required Respondent to "stay at least 500 feet away from [D. J. J.], [D. J. J.'s] home, place of employment and/or school at all times."
On October 18, 1999, the State Attorney's Office filed, in Miami-Dade County Circuit Court Case No. 99-30932, an "information for aggravated child abuse" against Respondent alleging the following:
GREGORY PAYNE, on or about SEPTEMBER 8,
1999, in the County [of Miami-Dade] and [the] State [of Florida], did unlawfully feloniously commit an aggravated battery upon D. J. J., a child of sixteen (16) years of age, by HITTING HIM IN THE HEAD WITH A HAMMER AND BY PLACING A HOT IRON ON HIS
FACE, and during the commission of such felony the defendant committed an aggravated battery in violation of s.827.03(1), Fla.
Stat., 6/ contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.
That same day, Respondent was arrested and taken into custody for violating the requirement of the September 8, 1999,
Order of Pretrial Release Conditions that he "stay away" from
D. J. J.
Respondent remained in jail until October 26, 1999.
On that date, Respondent entered a plea of guilty to the "aggravated child abuse" charge filed in Miami-Dade County Circuit Court Case No. 99-30932, after having discussed the matter with his attorney and determined that it was in his best interest to enter such a plea.
Respondent was thereafter adjudicated guilty of the crime and ordered to serve one year of community control, followed by one year of probation, during which he was required to "enter and successfully complete the Anger Control Program." 7/
The School Board learned of Respondent's "aggravated child abuse" conviction through a records check (Records Check E-02988).
A conference-for-the-record with Respondent was held on February 23, 2000, "to address Records Check E-02988 concerning Aggravated Child Abuse, noncompliance with School Board policy and rules regarding Employee Conduct, a review of the record, and [Respondent's] future employment status with Miami-Dade County Public Schools." At the conference, Respondent was provided a copy of the records check findings and provided the opportunity, of which he took advantage, to
"respond to the allegation that [he] 'w[as] arrested and later convicted of Aggravated Child Abuse.'" After doing so, he was advised that further review of the matter would be undertaken and that he would remain in his current assignment pending the outcome of such further review, provided he did the following:
Remain in control of [him]self at all times and, specifically, during work hours.
Comply with School Board Rule 6Gx13-4A- 1.21, Employee Conduct, a copy of which was provided to [him].
At all times material to the instant case, School Board Rule 6Gx13-4A-1.21(I), Employee Conduct, has provided as follows:
All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
A pre-dismissal conference-for-the-record was held with Respondent on May 19, 2000. At the conference, Respondent was told that a recommendation for his dismissal would be made based upon the following charges:
Just cause, including but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School
Board Rule 6Gx13-4A-1.21, Responsibilities and Duties.
The Superintendent of Schools subsequently made such a recommendation to the School Board.
At its June 21, 2000, meeting, the School Board suspended Respondent and initiated a proceeding to terminate his employment "for just cause, including, but not limited to, immorality, conviction of a crime involving moral turpitude, and violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties.
Respondent formally appealed his proposed termination pursuant to Article XXI, Section 3F. of the Union Contract, and the School Board subsequently referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a hearing on the appeal.
Prior to the hearing, the School Board filed and served on Respondent a Notice of Specific Charges, as required by Article XXI, Section 3F. of the Union Contract.
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power
except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters. Section 231.001, Florida Statutes ("Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees."). The "rules governing personnel matters" that have been adopted by the School Board include School Board Rule
6Gx13-4A-1.21.
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Florida Statutes.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Section 447.209, Florida Statutes.
It, however, must exercise these powers in a manner that is consistent with the requirements of law.
"Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of
fact are in dispute." 8/ Sublett v. District School Board of
Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).
Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371,
1372 (Fla. 1st DCA 1996); and Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the hearing, the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise (which the Union Contract does not), 9/ the district school board's proof need only meet the preponderance of the evidence standard. 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."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179
(Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were
true . . . ."); Allen v. School Board of Dade County,
571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v. School Board of Dade County, 569 So.
2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent
and substantial evidence to support both charges by a preponderance of the evidence standard.").
Where the employee sought to be terminated is an "educational support employee," the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes, 10/ which provides, in part, as follows:
As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a clerical employee, 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. 231.1725. 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.
"Employee" means any person employed as an educational support employee.
"Superintendent" means the superintendent of schools or his or her designee.
(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.
Upon successful completion of the probationary period by the employee, the employee's status shall continue from year
to year unless the 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 districtwide basis for financial reasons.
In the event the 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.
Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the Union Contract).
Pursuant to Section 231.3605, Florida Statutes, his employment may be terminated only "for reasons stated in the collective bargaining agreement."
An examination of the provisions of the Union Contract offered into evidence in the instant case 11/ reveals that bargaining unit members covered by the agreement, who (like Respondent) have successfully completed their probationary period, may be dismissed only for "just cause," which "includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or
conviction of a crime involving moral turpitude." The Union Contract further provides that these "charges are defined, as applicable, in State Board Rule 6B-4.009."
Rule 6B-4.009, Florida Administrative Code, contains the "criteria for suspension and dismissal of instructional personnel." It provides, in pertinent part, as follows:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 12/ . . .
(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.
"Aggravated child abuse" is "conduct that is inconsistent with the standards of public conscience and good morals," within the meaning of Rule 6B-4.009(2), Florida Administrative Code, as well as a "crime involving moral turpitude," within the meaning of Rule 6B-4.009(6), Florida Administrative Code. See Katz v. Education Practices
Commission, 2000 WL 1671498 (Fla. 4th DCA 2000)("The finding that appellant physically abused his stepson was, in and of itself, a proper basis on which to deny appellant's application.
§ 231.02(1), Fla. Stat. (1999)(requiring applicant for Florida Educator's Certificate to be of 'good moral character')"); Dobson v. Harris, 530 S.E.2d 829 (N.C. 2000)("False accusations of crime or offenses involving moral turpitude are actionable as slander per se. As a preliminary matter, we agree with the Court of Appeals in the case sub judice, 134 N.C. App. at 580,
521 S.E.2d at 716, that child abuse is one such crime or offense 'involv[ing] an act of inherent baseness in the private, social, or public duties which one owes to his fellowmen or to society, or to his country, her institutions and her government.' It is this perception of child abuse or neglect as 'inherently base' that not only underpins serious criminal classifications for those who commit it, see N.C.G.S. §§ 14-318.2 (1999) (Class 1
misdemeanor), 14-318.4 (1999) (felony), but also has prompted the promulgation of laws like those before us here, which recognize that, when a child's welfare is jeopardized, swiftly engaging the state's protective mechanisms is paramount") (Citations omitted); In re Wortzel, 698 A.2d 429 (D.C.
1997)("[c]hild abuse . . . involves moral turpitude per
se . . ."); Department of Business and Professional Regulation, Division of Real Estate v. Cash, 1999 WL 1486595 (Fla. DOAH
1999)(Recommended Order)("Cash pled nolo contendere to aggravated battery, a second degree felony. The crime did not directly relate to his activities as a licensed broker, but it
did involve moral turpitude, which has been described by the Florida Supreme Court in State ex. rel. Tullidge v.
Hollingsworth, 146 So. 2d 660, 661 (Fla. 1933) as involving 'the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society' and as being 'contrary to justice, honesty, principle, or good morals.'"); Brown v. Department of Insurance and Treasurer,.
1987 WL 487019 (Fla. DOAH 1987)(Recommended Order)(aggravated assault is a crime involving moral turpitude); and Dade County
School Board v. McArthur, 1976 WL 44019 (Fla. DOAH 1976)(aggravated battery is a crime involving moral turpitude).
That "aggravated child abuse" is considered to be a particularly serious offense in the State of Florida is evidenced by the Florida Legislature's having made "aggravated child abuse" a first degree felony 13/ and classified it, for purposes of sentencing, a level nine offense on the "offense severity ranking chart," which has ten offense levels, ranked from least severe (level one offenses) to most severe (level ten offenses). See Sections 827.03 and 921.0022, Florida Statutes; see also Section 950.002(9), Florida Statutes ("The court shall consider the offender's previous criminal history when sentencing a person to a county work camp in order to ensure the protection of the community. Unless otherwise indicated by the sentencing court, persons convicted of any of the following
crimes shall not be housed in a county work camp: arson; sexual battery; robbery; kidnapping; aggravated child abuse; aggravated assault; murder; manslaughter; unlawful throwing, placing, or discharging of a destructive device or bomb; aggravated battery; or armed burglary.") "Aggravated child abuse" is the type of offense that is so serious, particularly when viewed in light of a district school board's child-centered mission, that its commission by a school district employee necessarily impairs that employee's "service in the community" and "brings . . . public disgrace [and] disrespect."
According to Section 827.03(2)(a), Florida Statutes, the crime of "'aggravated child abuse' occurs when a person: Commits aggravated battery on a child."
A "child," as that term is used in Section 827.03(2)(a), Florida Statutes, is defined in Section 827.01(2), Florida Statutes, as "any person under the age of 18 years." At the time of the Subject Incident, D. J. J. was a "child," as defined in Section 827.01(2), Florida Statutes.
Pursuant to Section 784.045(1)(a), Florida Statutes,
(1)(a) A person commits aggravated battery who, in committing battery:
Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
Uses a deadly weapon.
A "battery," as that term is used in Section 784.045(1)(a), Florida Statutes, occurs when a person:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to another person.
Section 784.03(1)(a), Florida Statutes.
Depending on how they are used, a hammer and an electric clothes iron may be "deadly weapons," the use of which in committing a "battery" renders the "battery" an "aggravated battery" pursuant to Section 784.045(1)(a)2, Florida Statutes. See Brown v. State, 61 So. 2d 640 (Fla. 1952)("hammer" held to
be a "deadly weapon"); Colainni v. State, 245 So. 2d 893 (Fla. 2d DCA 1971)("ballpeen hammer" held to be a "deadly weapon"); Fincher v. State, 1999 WL 417296 (Tex. App. 1999)("hot clothing iron" held to be a "deadly weapon"); and Clem v. State, 760 P.2d
103 (Nev. 1988)("heated electric iron" held to be a "deadly weapon").
A criminal defendant charged with "battery," "aggravated battery," or "aggravated child abuse" may defend against the charge by attempting to prove that his or her use of force was justified pursuant to either Section 776.012, Florida Statutes, or Section 776.031, Florida Statutes, which provide as follows:
776.012. Use of force in defense of person
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
776.031. Use of force in defense of others
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.
"Deadly force," as that term is used in Section 776.012, Florida Statutes, and Section 776.031, Florida Statutes, is defined in Section 776.06, Florida Statutes, as "force that is likely to cause death or great bodily harm."
"Forcible felony," as that term is used in Section 776.012, Florida Statutes, and Section 776.031, Florida
Statutes, is defined in Section 776.08, Florida Statutes, as "treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking;
aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual."
It is not enough for the defendant to prove that he or she believed that there was a real threat and that therefore the use of force was necessary. "The law does not ascribe a subjective standard as to a defendant's state of mind, but concerns a reasonably prudent person's state of mind." Reimel
v. State, 532 So. 2d 16 (Fla. 5th DCA 1988). In determining whether a reasonably prudent person in the defendant's position would have deemed it necessary to use the force that the defendant employed, it is appropriate to take into consideration the relative physical size and abilities of the defendant and the victim, particularly if the victim was unarmed. See Florida Standard Jury Instructions in Criminal Cases, Miscellaneous Instructions, 3.04(d) Justifiable Use of Deadly Force; Florida
Standard Jury Instructions in Criminal Cases, Miscellaneous Instructions, 3.04(e) Justifiable Use of Nondeadly Force; and People v. Hardin, 2000 WL 1844796, n.7 (Cal. App. 2000)("There
is one detail that demands attention. It is clear that at some point after defendant 'rushed' Ms. Levingston that he did take the hammer away from her and that he was on his knees straddling her while she was on the floor. Once Ms. Levingston (79 years old, described at 5 feet 3 inches tall and weighing approximately 110 pounds) was disarmed, defendant (who was 22 years old and who is described in the probation report as being
5 feet 11 inches tall and weighing 185 pounds) could no longer entertain the belief that she constituted an imminent and deadly peril to him. His right to use deadly force in self-defense ended at that moment.").
Under Article XXI, Section 3D. of the Union Contract, which provides that "conviction of a crime involving moral turpitude" constitutes "just cause" for termination, an employee convicted of "aggravated child abuse" may not defend against an allegation that the conviction provides "just cause" for the employee's termination by attempting to prove that, notwithstanding the conviction, his or her use of force was legally justified and that therefore he or she did not actually commit the "aggravated child abuse" of which he or she was convicted. Cf. The Florida Bar v. Vernell, 374 So. 2d 473, 475
(Fla. 1979)(in a bar disciplinary proceeding, an attorney charged with having been convicted of misdemeanors "did not have the right to a trial de novo before the referee for the purpose
of showing that his conviction was erroneous"); and McGraw v.
Department of State, 491 So. 2d 1193, 1195 (Fla. 1st DCA 1986)(private investigator whose license was revoked pursuant to a statutory provision authorizing disciplinary action where the licensee has been "found guilty of the commission of a crime which directly relates to the business for which the license is held" was not entitled, in the disciplinary proceeding below, to relitigate the question of his guilt of the crime of which he had been found guilty in the prior criminal proceeding).
The Notice of Specific Charges served on Respondent in the instant case (in Count III thereof) alleges that there is "just cause" warranting Respondent's termination based upon, among other things, his 1999 conviction in Miami-Dade County Circuit Court Case No. 99-30932 for "aggravated child abuse."
At hearing, the School Board established that, on October 26, 1999, following the effective date of the Union Contract, Respondent was adjudicated guilty of "aggravated child abuse" in Miami-Dade County Circuit Court Case No. 99-30932 after entering a plea of guilty to the charge. The School Board thereby met its burden of proving that, while a School Board employee whose terms and conditions of employment were governed by the Union Contract, Respondent was convicted of a "crime involving moral turpitude," which, under Article XXI, Section 3D. of the Union Contract, constitutes "just cause" for
termination. See State v. McFadden, 2000 WL 1675950, (Fla.
2000)("For purposes of impeaching a witness with a prior conviction under section 90.610(1), however, we find no basis to deviate from the definition of conviction most consistently used by this Court, which requires a judgment of the court adjudicating the defendant guilty."); Weathers v. State, 56 So. 2d 536, 538 (Fla. 1952)("Our present thought is that one is convicted when the jury returns a verdict of guilty and the judge clinches the finding by adjudicating the guilt though the prisoner may never be punished."); State v. Keirn, 720 So. 2d 1085, 1087 (Fla. 4th DCA 1998)("Over time, the most frequent construction of a statute's use of the term 'conviction' has required a trial court's adjudication of the defendant's guilt after a plea or verdict."); Tito v. State, 593 So. 2d 284, 286 (Fla. 2d DCA 1992)("We believe that the word 'conviction' as used in the habitual offender statute should be given its usual meaning of an adjudication of guilt . . . ."); and Castillo v.
State, 590 So. 2d 458, 461 (Fla. 3d DCA 1991)("For purposes of this statute [Section 790.23, Florida Statutes], we construe 'conviction' to mean an adjudication of guilt.").
Respondent concedes that he was convicted of "aggravated child abuse" after pleading guilty to the charge, as alleged in the Notice of Specific Charges, but he contends that "this plea should not be interpreted . . . to mean that the
Respondent must automatically be dismissed by the School Board," citing in support of his position School District of Palm Beach County v. Woessner, 1998 WL 870077 (Fla. DOAH 1998)(Recommended Order), a teacher dismissal case in which the undersigned stated, among other things, the following:
If the teacher is criminally charged and pleads guilty to having committed these crimes, but adjudication of guilt is withheld, as in the instant case, there is no criminal "conviction," as that term is used in Section 231.36, Florida
Statutes. . . .
While the teacher may not be "technically guilty of conviction of a crime involving moral turpitude," the teacher's guilty plea may be used to establish that the teacher committed such a crime and thereby engaged in immorality and violated the Code of Ethics of the Education Profession in Florida. See Boshnack v. World Wide Rent-A- Car, 195 So. 2d 216, 218 (Fla. 1967); Estate
of Wallace v. Fisher, 567 So. 2d 505, 508 (Fla. 5th DCA 1990); MacNeil v. Singer, 389 So. 2d 232, 234 (Fla. 5th DCA 1980); School Board of Palm Beach County v. Kenny, No. 88- 1441 (Fla. DOAH February 6, 1989; Brown v.
City of Hialeah, 30 F.3d 1433, 1437 (11th Cir. 1994). Although it may be considered as evidence of the teacher's guilt, a guilty plea that was entered as a plea of convenience 14/ is not conclusive evidence that the teacher committed the crime to which he or she pled guilty. The teacher must be given an opportunity to explain the circumstances surrounding the plea and to otherwise contest the inference of guilt arising from the plea. See The Florida Bar v. Schreiber, 631 So. 2d 1081, 1082 (Fla.
1994); The Florida Bar v. Marks, 492 So. 2d 1327, 1328 (Fla. 1986); The Florida Bar v.
Lancaster, 448 So. 2d 1019, 1021-22 (Fla.
1984); Kinney v. Department of State, Division of Licensing, 501 So. 2d 129, 132 (Fla. 5th DCA 1987).
According to Respondent, his guilty plea to the "aggravated child abuse" charge was "entered as a plea of convenience" 15/ and, notwithstanding his guilty plea and conviction, "he is innocent of the crime" inasmuch as "he acted in self-defense on the day in question because he was afraid for his life."
Respondent's reliance on Woessner is misplaced.
Unlike the teacher in Woessner, Respondent was adjudicated
guilty of the "crime involving moral turpitude" to which he pled guilty. As a result of his conviction, the School Board, under Article XXI, Section 3D. of the Union Contract, has "just cause" to terminate him, regardless of whether his plea constituted an admission of guilt or was simply entered as a matter of convenience, in his "best interest," pursuant to Florida Rule of Criminal Procedure 3.172(d). Where the School Board, as in the instant case, has alleged in its Notice of Specific Charges that an employee covered by the Union Contract should be terminated based upon the employee's "conviction of a crime involving moral turpitude," in order to have the authority, under the contract, to terminate the employee, the School Board need not prove that the employee actually committed the "crime involving moral turpitude" of which the employee was convicted. Mere proof of the conviction is sufficient.
In any event, although proof of Respondent's conviction of "aggravated child abuse," standing alone, is enough to establish that there exists "just cause" to terminate Respondent under Article XXI, Section 3D. of the Union Contract, the School Board further proved at hearing, by a preponderance of the evidence, that Respondent indeed committed "aggravated child abuse" during his confrontation with D. J. J. on
September 8, 1999, when he struck the then 16-year-old on the side of the face with a hot clothing iron and thereafter hit him on the back of the head with a hammer. Such conduct constitutes, as alleged in Count I of the Notice of Specific Charges, "immorality" (as that term is defined in Rule 6B- 4.009(2), Florida Administrative Code, and used in Article XXI, Section 3D. of the Union Contract), and it also constitutes, as alleged in Count II of the Notice of Specific Charges, "conduct unbecoming a public employee," in violation of School Board Rule 6Gx13-4A-1.21(I), Employee Conduct. 16/ Notwithstanding
Respondent's claim that his actions were justified, the record evidence fails to establish that the force he used was reasonably necessary to defend either himself or his daughter against D. J. J., who was unarmed and considerably smaller (13 inches shorter and 40 pounds lighter) than Respondent.
Respondent further argues, in the alternative, that, if he is to be punished for his use of force during the Subject
Incident, the "totality of circumstances" justify the imposition of a penalty less severe than termination. Article XXI, Section 3D. of the Union Contract, however, unlike the collective bargaining agreement between the School Board and AFSCME that was involved in Centellas v. School Board of Dade County, 683
So. 2d 644 (Fla. 3d DCA 1996), Bell v. School Board. of Dade County, 681 So. 2d 843 (Fla. 3d DCA 1996), and Collins v. Dade County School Board, 676 So. 2d 1052 (Fla. 3d DCA 1996), does not "incorporate[] the concept of 'progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record).'" Indeed, it speaks of, not "just cause" for discipline, but rather "just cause" for termination. Under this provision of the Union Contract, if a bargaining unit employee is guilty of "misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude," or any equally inappropriate conduct, the School Board may terminate the employee without taking into consideration the employee's length of employment or disciplinary record, or any other circumstances. See Mistletoe
Express Service v. Motor Expressmen's Union, 566 F.2d 692, 695 (10th Cir. 1977)("In a proper case an arbitrator, in reliance on custom or usage in an industry, may construe a "just cause"
provision of a labor contract to include a progressive discipline requirement and may determine that certain conduct is "just cause" for discipline but not for discharge. In the instant case, however, s [Section] 11(G) explicitly says that failure to settle in 24 hours is just cause for discharge.
Subsection (G) is in sharp contrast with Subsections (F) and (K) which provide for graduated disciplinary measures culminating in discharge. The parties could have provided for progressive discipline in Subsection (G) but they did not. Nothing in the record justifies a rational inference that the parties intended anything other than discharge when an employee violated Subsection (G). In reducing the penalty from discharge to suspension, the arbitrator substituted his views of proper industrial relationships for the provisions of the contract. He expressly found that there was just cause for discipline. The contract says that the acts, which the arbitrator found are just cause for discipline, are just cause for discharge. The arbitrator may not rewrite the labor contract.").
At any rate, even if the "totality of circumstances" in the instant case were to be examined (as Respondent suggests they should be), such an examination would yield the conclusion that Respondent's offenses (that is, his commission of, and conviction for, "aggravated child abuse") are so serious that they warrant his dismissal, notwithstanding that he has worked
for the School Board since 1986 and, in that time, has not been the subject of any disciplinary action.
Respondent's "conviction of a crime involving moral turpitude," his "immorality," and his "conduct unbecoming a School Board employee" provide the School Board with "just cause," under Article XXI, Section 3D. of the Union Contract, to terminate Respondent's employment.
The requirements prescribed by Section 231.3605, Florida Statutes, and Article XXI, Section 3D. of the Union Contract having been met, the School Board should take final action to effectuate Respondent's termination on the grounds set forth in Count I ("immorality"), Count II ("conduct unbecoming a School Board employee"), and Count III ("conviction of a crime involving moral turpitude") of the Notice of Specific Charges.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through III of the Notice of Specific Charges.
DONE AND ENTERED this 5th day of January, 2001, in
Tallahassee, Leon County, Florida.
STUART M. LERNER
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 5th day of January, 2001.
ENDNOTES
1/ It appeared to Respondent, however, that D. J. J. weighed only 140 pounds.
2/ Apparently, the door could be locked (with a key) either from the outside or the inside of the house.
3/ Had D. J. J. left with the key and locked the door (from the outside) with Respondent and his daughter still inside, Respondent could have used the telephone in the house (which was operational) to call for assistance.
4/ There is no indication that D. J. J., as he approached Respondent, made any verbal threats or threatening gestures.
5/ Had Respondent truly been fearful that D. J. J. (who was unarmed and approximately 25 years younger, 13 inches shorter, and 40 pounds lighter than Respondent) posed an imminent threat to his and his daughter's lives (as Respondent claimed in his deposition and hearing testimony), it is inconceivable that he would have followed D. J. J. around the house and confronted him (as he did). One would have expected Respondent, instead, to have telephoned the police and then retreated to another part of the house (with his daughter).
6/ This is a scrivener's error. The crime of "aggravated child abuse" is described in subsection (2), not subsection (1), of Section 827.03, Florida Statutes. Compare with Janes v. State,
585 So. 2d 424 (Fla. 1st DCA 1991)("As to the allegation regarding the charge of conspiracy to traffic, we note appellant's argument that Count II of the information cites section 893.13 as authority therefor, rather than section 893.135(1)(b). However, given the description of the charge, this was clearly a scrivener's error.").
7/ The judgement of conviction, like the information, erroneously indicated that the commission of "aggravated child abuse" was a violation of subsection (1) of Section 827.03, Florida Statutes.
8/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
9/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, No. 96-3683 (Fla. DOAH February 20, 1997) (Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
10/ Notwithstanding the holding in Rosario v. Burke, 605 So. 2d 523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non- certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In
Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non- certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd. of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
11/ The entire Union Contract was not offered into evidence.
12/ "Immorality" may be established, even in the absence of "specific" or "independent" evidence of impairment where the conduct in which the employee engaged is of such nature that it "must have impaired" the employee's "service." See Purvis v.
Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d
DCA 2000); and Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995).
13/ The judgment of conviction recorded in Miami-Dade County Circuit Court Case No. 99-30932 erroneously indicated that the crime of which Respondent was adjudicated guilty, "aggravated child abuse," was a second degree felony. Since July 1, 1999, the effective date of Chapter 99-168, Laws of Florida, "aggravated child abuse" has been a first degree felony.
14/ Pursuant to Florida Rule of Criminal Procedure 3.172(d), a defendant may enter a guilty plea without admitting guilt, where the defendant "acknowledges that he or she feels the plea to be in his or her best interest."
15/ None of the court documents from Miami-Dade County Circuit Court Case No. 99-30932 that were received into evidence in the instant case, however, reflects that the guilty plea Respondent entered was a plea of convenience made pursuant to Florida Rule of Criminal Procedure 3.172(d). Compare with Paterno v.
Fernandez, 569 So. 2d 1349, n.2 (Fla. 3d DCA 1990)("Although the defendant now alleges in her affidavit that she plead guilty as a matter of convenience, neither the plea agreement nor the plea colloquy reflects that convenience was the reason for the plea.").
16/ While "conduct unbecoming a public employee" is not specifically mentioned in Article XXI, Section 3D. of the Union Contract, it nonetheless may constitute "just cause" for termination within the meaning of that contractual provision inasmuch as the, "but is not limited to," language used in the provision makes abundantly clear that the provision's list of things constituting "just cause" is non-exclusive. Cf. Dietz v. Lee County School Board, 647 So. 2d 217, 219 (Fla. 2d DCA 1994)(Blue, J., specially concurring)("By statute, all contracts except continuing must contain provisions allowing dismissal during the term only for just cause. § 231.36(1)(a). The statute then defines 'just cause' as including but not limited to: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Just cause therefore includes but is not limited to five of the seven deadly sins. We assume that drunkenness and immorality, which are not included in the non- exclusive list of sins constituting just cause, would also be grounds for dismissal. . . . I agree with the majority--that the legislature left that [just cause] determination to the respective wisdom of each school board by providing no definite
parameters to the term 'just cause.' If this was not the legislature's intent, section 231.36 should be amended.").
COPIES FURNISHED:
Ana I. Segura, Esquire
School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
Lisa N. Pearson, Esquire United Teachers of Dade
2929 Southwest Third Avenue, Coral Way Miami, Florida 33132
Roger C. Cuevas, Superintendent Dade County School Board
1450 Northeast Second Avenue Room 92
Miami, Florida 33132-1308
Honorable Charlie Crist Commissioner 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 2001 | Agency Final Order | |
| Jan. 05, 2001 | Recommended Order | School Board had "just cause," under collective bargaining agreement, to terminate non-instructional employee. |
