STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs.

ONDRAUS REDDING,

Respondent.

)

)

)

)

) Case No. 02-3103

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 16, 2002, in Sanford, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

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

Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Ondraus Redding, pro se

342 South Wymore Road Apartment 101

Altamonte Springs, Florida 32714 STATEMENT OF THE ISSUE

Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.

PRELIMINARY STATEMENT

On or about July 15, 2002, Respondent received a letter from Paul J. Hagerty, Superintendent, Seminole County Public Schools, advising him that he was recommending his termination from employment for "misconduct in office and conduct unbecoming an employee of the School Board." The letter further advised Respondent of his right to an administrative hearing.

On July 23, 2002, Respondent forwarded a letter to the Superintendent requesting an administrative hearing.

On August 6, 2002, Petitioner forwarded a Petition for Termination to the Division of Administrative Hearings. On August 7, 2002, an Initial Order was sent to both parties.

On August 16, 2002, the case was scheduled for final hearing on September 16, 2002, in Sanford, Florida.

The final hearing was conducted on September 16, 2002, as scheduled. Petitioner presented 5 witnesses: Carol Peterson, Crime Lab Analyst, Florida Department of Law Enforcement; Officer Rob Hollinger, Lake Mary, Florida, Police Department; Kim Vandergrift, Lake Mary, Florida, Police Department; and David Steindl and John Reichert, employees of Petitioner.

Petitioner offered eight exhibits which were received into evidence and marked Petitioner's Exhibits 1 through 8.

Respondent appeared and testified on his own behalf; he offered no documentary evidence.

No transcript was ordered. Both parties submitted Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:

1. Petitioner is the governing board of the School District of Seminole County, Florida.

2. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner.

3. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida."

4. At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits

   possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added)

5. At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location."

6. During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana.

7. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor.

8. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent.

9. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully

   completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement.

10. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows:

    Section 5.

    
    

    1. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause.

       
       

       * * *

       
       

       C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case]

       
       

       1. Violation of School Board Policy

       
       

       * * *

       
       

       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

       
       

       * * *

       
       

       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/costs centers . . . .

       
       

11. No evidence was offered to suggest that subparagraphs

1. and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter. Section

      120.57 and Subsection 231.36(6)(a)2., Florida Statutes (2001).

      
      

   2. Subsections 230.03(2) and (3), Florida Statutes (2001), read as follows:

      1. SCHOOL BOARD.–In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall 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.

         
         

      2. SUPERINTENDENT.–Responsibility for the administration and management of the schools and for the supervision of instruction in the district shall be vested in the superintendent as the secretary and executive officer of the school board, as provided by law.

   3. A district school board is considered the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Subsection 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 other legitimate reasons." Section 447.209, Florida Statutes.

   4. "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," for "a 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).

   5. The appropriate standard of proof in a school board dismissal proceeding is preponderance of evidence, unless the collective bargaining agreement covering the bargaining unit of which the employee is a member prescribes a more demanding standard of proof. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County

      School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995). Neither party here has pointed to or offered evidence of any contractual

      provision that would require Petitioner to satisfy a more strict standard of proof.

   6. Because the statute and rules providing grounds for terminating Respondent's contract are penal in nature, they must be construed in favor of the employee. Rosario v. Burke, 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

      Professional Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

      
      

   7. When a school board seeks to terminate an employee's contract for cause, it must establish each and every element of the charge. MacMillan v. Nassua County School Board, 629 So. 2d

      226 (Fla. 1st DCA 1993).

      
      

   8. 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. "Public employees when faced with the ultimate sanction of termination are entitled to have the charging document specify the rule the agency alleges to have been violated and the conduct which occasioned the violation of the rule." Jacker v. School Board

      of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983) (Jorgenson, J. concurring).

   9. Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. 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); Klein v. Department of Business and

      Professional Regulation, 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

   10. The Petition for Termination indicates "respondent be terminated for just cause, including but not limited to: misconduct in office, immorality and conduct unbecoming an employee of the School Board [Exhibit A attached]." The attachment, Exhibit A, is a letter dated July 15, 2002, from Paul J. Hagerty to Respondent, which relates that "[Y]our admission to possession of a controlled substance constitutes misconduct in office and conduct unbecoming an employee of the School Board, and is grounds for termination . . . ." The notification letter makes no mention of "immorality." No evidence was presented to support the allegation of "immorality."

   11. Where the employee sought to be terminated is an "educational support employee," the district school board must act in accordance with the provisions of Section 231.3605, Florida Statutes (2001), which provides, in part, as follows:

       (1) As used in this section:

       
       

       1. "Educational 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.

          231.1725.

          
          

          * * *

          
          

       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 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.

          
          

       2. In the event a 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.

   12. Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes (2001), who is covered by a collective bargaining agreement (the "Official Agreement Between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County").

   13. Pursuant to Section 231.3605, Florida Statutes (2001), his employment may be terminated only "for reasons stated in the collective bargaining agreement."

   14. An examination of the provisions of the collective bargaining agreement offered into evidence in the instant case 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." "Violation of School Board Policy" is listed as a reason for discharge providing just cause is present in Article VII, DISCIPLINE AND TERMINATION, Section 5., of the collective bargaining agreement.

   15. Seminole County School Board has a published policy titled "Drug-free Workplace" which states, in part, "[S]chool Board employees shall not . . . possess or use . . . marijuana

       . . . before, during, or after school hours at school or in any other school district location."

   16. Petitioner established that, on July 3, 2002, Respondent was charged with possession of cannabis (less than

       20 grams), and that on July 22, 2002, in Seminole County Court case number 02-6363, he pled nolo contendere, which plea was accepted by the Court which "withheld adjudication of guilt." This criminal violation involving possession of marijuana did not occur at a school or in any other school district location. Petitioner has failed to prove that Respondent committed a violation of Petitioner's Policy - Drug-Free Workplace.

   17. Subsections 440.102(13)(a) and (b), Florida Statues, which are part of the statute implementing the "drug-free workplace program" read as follows:

       (13) COLLECTIVE BARGAINING RIGHTS.–

       
       

       1. This section does not eliminate the bargainable rights as provided in the collective bargaining process if applicable.

          
          

       2. Drug-free workplace program requirements pursuant to this section shall be a mandatory topic of negotiations with any certified collective bargaining agent for nonfederal public sector employers that operate under a collective bargaining agreement.

       
       

   18. Petitioner passionately suggests that Respondent should be "discharged for conduct unbecoming an employee." This Administrative Law Judge has no argument with the concept that "possession of marijuana is a criminal offense." More to the point, the collective bargaining agreement and Petitioner's

       Drug-Free Workplace Policy do not address possession of misdemeanor amounts of marijuana except when that possession occurs at school or in any other school district location. Had Petitioner wanted to terminate individuals in possession of misdemeanor amounts of marijuana anywhere, that more general language should have been included in its Drug-Free Workplace Policy or in the collective bargaining agreement.

   19. Section 231.02, Florida Statutes (2001), requires that all school district employees shall be of good moral character.

   20. The Florida Supreme Court in Florida Board of Bar

       
       

       Examiners, Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978), defines good moral character as: "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation."

   21. In Wash & Dry Vending Company v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 429 So. 2d 790, 792 (Fla. 3rd DCA 1983), the court referred to the definition of good moral character found in Zemour, Inc. v. State of Florida, Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), and states:

       Moral character as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe such difference; the observance of the rules of right conduct, and conduct

       which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.

       
       

   22. Other than Respondent's plea of nolo contendere to the misdemeanor charge of possession of cannabis, no evidence was presented that suggests Respondent not to be of good moral character. Petitioner failed to carry the burden of proof of this allegation, if, arguably, it is a basis for termination of an educational support employee.

   23. Petitioner argues that Respondent's possession of a misdemeanor amount of marijuana constitutes "just cause" for termination. "Just cause" for discipline of a non- instructional, educational support employee is not defined in the collective bargaining agreement or in any statute or rule. Petitioner's argument that it is not limited to the enumerated offenses in paragraph C, Section 5. of the collective bargaining agreement is buttressed by the peculiar language in that section that the employee may be disciplined for those twelve reasons, "providing just cause is present." That is, both the specific violation and just cause are required for discipline under that section. For instructional staff under contract, it is defined in Subsection 231.36(1)(a), Florida Statutes (2001), to include, but not be limited to, "misconduct in office, incompetency,

       gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." See, also, similar provisions for suspension or dismissal of administrative, supervisory or instructional staff on continuing contract, in Subsection 231.36(4)(c), Florida Statutes (2001).

   24. The legislature has provided clear guidance for school districts regarding instructional and non-instructional employees who are hired to fill positions requiring direct contact with students. Subsection 231.02(2)(a), Florida Statutes (2001), requires fingerprinting upon employment and a criminal history background check. Employees found to have been convicted of a crime involving moral turpitude are not eligible for employment in a position requiring direct contact with students. Subsection 231.02(2)(a), Florida Statutes (2001).

   25. To the extent that these provisions may be used as guidance to discipline Respondent, they are inapplicable. His position does not require "direct contact" with students, but only incidental contact. He has not been convicted of a crime of moral turpitude. If Petitioner wishes to articulate policy which sets unique standards of conduct for its non- instructional, educational support employees, it is not precluded from doing so. Other than as contained in the collective bargaining agreement, it apparently has not done so.

   26. While Petitioner maintains that it has "zero tolerance" for drug violations, as it relates to educational support employees, such as Respondent, its written Drug-Free Workplace policy is not so circumscribed; it is geographically limited to "at school or in any other school district location." If it does have a zero tolerance policy, so as to include the offense committed by Respondent, evidence of such has not been provided. It is not described in the collective bargaining agreement, or in the Drug-Free Workplace policy. In this proceeding, Petitioner failed to prove the policy it seeks to apply against Respondent and "just cause" for his dismissal.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Seminole County School Board enter a final order rejecting the recommendation for termination of

Ondraus Redding, removing him from suspension, and restoring back pay.

DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida.

JEFF B. 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 10th day of October, 2002.

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Ondraus Redding

342 South Wymore Road Apartment 101

Altamonte Springs, Florida 32714

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

Dr. Paul J. Hagerty, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

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: 02-003103

Orders for Case No: 02-003103