vs.
Respondent.
) Case No. 07-3721
Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing in this proceeding on October 11, 2007, in Bartow, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioner: Donald H. Wilson, Jr., Esquire
For Respondent: Kevin P. Cox, Esquire
The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to
terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent of proposed agency action to terminate Respondent's employment on June 12, 2007. Respondent requested an administrative hearing by letter dated May 21, 2007. On June 12, 2007, Petitioner adopted the recommendation of the Superintendent to terminate Respondent's employment, and, on August 16, 2007, Petitioner referred the matter to DOAH to conduct the administrative hearing.
At the hearing, Petitioner presented the testimony of five witnesses and submitted four exhibits for admission into evidence. Respondent testified and called seven witnesses and submitted no exhibits for admission into evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the one-volume Transcript of the hearing filed with DOAH on October 25, 2007. Petitioner timely filed its Proposed Recommended Order (PRO) on November 5, 2007. Respondent filed his PRO on November 7, 2007.
Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County,
Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract.
By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent.
The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are:
On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students.
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Your conduct in this situation is aggravated by the fact that you made reference to the
weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination.
It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately
25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17).
The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides:
It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement
personnel. . . .
Petitioner's Exhibits 8 and 10.
The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The
document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful.
The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings.
Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on
May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007.
On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight."
Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m.
One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them."
The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other
evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent.
The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after
May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing.
Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center.
Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3.
Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove
directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense.
Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students.
The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent.
The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer
to the location of the firearm in the center console, and otherwise fully cooperated in the investigation.
The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law.
At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health.
The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding.
The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center.
The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2007). DOAH provided the parties with adequate notice of the administrative hearing.
The termination of employment that occurred on June 12, 2007, is proposed agency action, rather than final agency action taken previously that DOAH reviews as would an appellate court. The purpose of a proceeding conducted pursuant to Subsection 120.57(1) is to formulate final agency action, rather than to
review agency action previously taken. McDonald v. Department of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977).
The administrative hearing is a de novo proceeding in which either party may submit relevant and material evidence through the date of the hearing. The evidence is not limited to that evidence available to Petitioner when Petitioner proposed the termination of Respondent's professional service contract. Id.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
Petitioner proved two of the allegations stated in the charging document. Petitioner showed by a preponderance of evidence that the possession of a firearm on campus on May 11, 2007, violated the written policy of Petitioner and that the violation was intentional. Petitioner also proved the unalleged aggravating factor that Respondent possessed an unloaded hunting rifle on campus in his truck sometime prior to May 11, 2007. Petitioner did not prove the remaining grounds for the proposed termination of employment, including those stated in the charging document and the unalleged aggravating factors.
Petitioner cites three cases for the proposition that the trier of fact may draw an inference of impaired effectiveness from the nature of the offense. Purvis v. Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highland County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1996). Unlike the cited cases, this proceeding includes direct evidence of the continued effectiveness of Respondent as an educator. An inference authorized in the cited cases would require the fact- finder to ignore the direct evidence of unimpaired effectiveness.
Petitioner did not prove that the possession of a firearm on May 11, 2007, or the earlier possession of a hunting rifle were unlawful. Rather, the evidence and relevant legal authority show that the possession of a firearm on campus was lawful.
Subsection 790.115(1), in relevant part, prohibits a person from exhibiting a firearm on school property in a rude, careless, angry, or threatening manner. It is undisputed that Respondent did not exhibit, in any manner, the firearm located in his truck on May 11, 2007. If Respondent exhibited a hunting rifle located in his truck prior to May 10, 2007, there is no evidence that Respondent did so in a rude, careless, angry or threatening manner.
Subsection 790.115(2)(a) generally prohibits the possession of a firearm on any school property subject to certain exceptions. However, Subsection 790.115(2)(a)3. authorizes a person to carry a firearm in a vehicle on school property (the vehicle exception), but also authorizes school districts to:
. . . adopt written and published policies that waive the exception . . . for purposes of student and campus parking privileges.
Petitioner argues that the possession of a firearm on campus by Respondent was unlawful because Petitioner adopted a written policy waiving the statutory vehicle exception. Petitioner's proposed statutory interpretation is not supported by relevant judicial decisions.
Petitioner's written policy generally prohibits the possession of firearms on school campuses but omits an express waiver of the vehicle exception. Such a written policy does not waive the vehicle exception. State of Florida v. Ragland, 789 So. 2d 530, 534 (Fla. 5th DCA 2001).
In Ragland, local police officials arrested a student for possessing a 30.6 Browning Bolt Action Rifle and ammunition in his vehicle that he parked on the campus of Brevard County Community College (BCC). BCC had in place two written policies intended to waive the vehicle exception in Subsection 790.115(2)(a)3. The two policies provided inter alia:
3. WEAPONS. Possession, display or use of any firearm . . . is against the Code of Conduct and Florida Law.
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No students . . . may have weapons in their possession at any time on college property.
Ragland, 789 So. 2d at 533.
The trial court granted the student's motion to dismiss the criminal charges, in relevant part, because BCC had not adopted written policies waiving the statutory vehicle exception. The state appealed, and the appellate court upheld the trial court's dismissal of the charges against the student. The appellate court explained:
The BCC publications do not expressly waive the vehicle exception to the proscription of firearms . . . on campuses. Section 790.115 generally proscribes weapons on school grounds, as does the published policy [of BCC]. The statute excepts from its proscription weapons that are in a vehicle and securely encased. The publications do not deviate from the statute in the proscriptions they make. Although the publications do not affirmatively provide for the vehicle exception, they do not give notice of an intent on the part of BCC (if there indeed was one) to swallow the exception. Instead, the publications invoke Florida law, and therefore affirmatively suggest that Florida law has not been waived. We think that the failure to state expressly that BCC waive the exception means that there was no waiver.
Ragland, 789 So. 2d at 533-534.
The written policy of Petitioner, like that of BCC, invokes Florida law and does not affirmatively suggest that the written policy waives the vehicle exception. The written policy of Petitioner is not sufficient to waive the statutory vehicle exception.
Although DOAH does not have authority to determine the constitutionality of a statute, an ALJ in an administrative hearing generally must construe statutes, rules, and written policies in a manner that is consistent with the state and federal constitutions. Willette v. Air Products and Bassett and
Department of Labor and Employment Security, Division of Workers' Compensation, 700 So. 2d 397, 399 (Fla. 1st DCA 1997). Any doubt concerning the proper interpretation of Petitioner's written policy must be resolved in a manner that interprets the statute implemented in a constitutional manner.
In Willette, the court rejected an agency's argument that a validly adopted rule which contradicts a statute is entitled to enforcement in the absence of a Section 120.56 rule challenge. As the court explained:
Executive branch rulemaking is authorized in furtherance of, not in opposition to, legislative policy. Just as a court cannot give effect to a statute (or administrative rule) in a manner repugnant to a constitutional provision, so a duly promulgated rule, although "presumptively valid until invalidated in a section 120.56 rule challenge" [citations omitted], must
give way . . . to any contradictory statute that applies.
Willette, 700 So. 2d at 399.
The decision in Willette is consistent with the separation of powers act. Fla. Const., Art. II, § 3. The act encompasses two prohibitions. First, no branch of government may encroach upon the powers of another. Second, no branch may delegate to another its constitutionally assigned power. The second prohibition is the non-delegation doctrine. Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 264-265 (Fla. 1991).
The non-delegation doctrine prohibits the Legislature from delegating legislative authority to another branch of government, including Petitioner. The written policy of Petitioner must be interpreted in a manner that is consistent with the non-delegation doctrine because Petitioner may not implement by written policy that is either non-rule policy or an unpromulgated rule that which the non-delegation doctrine prohibits an agency from implementing by rule. Compare Willette, 700 So. 2d at 399 (rulemaking is authorized in furtherance of, not in opposition to, legislative policy).
The constitutional infirmity of Petitioner's assertion that its written policy waives the statutory vehicle exception is
illustrated in the concurring opinion in Ragland. As the opinion explains:
The obvious problem with the statue herein is that the Legislature set a policy directly contrary to that which it authorized the school boards, in their unbridled discretion to veto, at least as it relates to parking on campus. The Legislature made it legal to have a securely encased firearm in a vehicle even on a campus. But, if the State is correct, it then gave the school boards the authority to amend the statute to make what the Legislature had declared legal a third degree felony. If the Legislature did so, it has permitted the various school boards to either approve or disapprove the Legislature's policy concerning securely encased firearms in vehicles on campus without setting "any definite limitations." Therefore, it is the Brevard Community College, in its unbridled discretion, which created the third degree felony attempted to be enforced in this case. And it did so under its authority to regulate parking privileges on its campus.
And, if the State is correct, the Legislature, by this provision, did not merely permit various school authorities to "opt out" of the policy permitting encased firearms on campus, it permitted such school authorities to create a felony where none existed before. Further, it has authorized the various school authorities to enact differing policies making an act legal on one campus to be a third degree felony on another even within the same geographic area. To make such a delegation constitutional, the Legislature must give some guidance to the school authorities in setting a policy which, in effect, creates a felony. There should be some rational basis spelled out by the Legislature (other than mere disagreement with the legislative policy) for a school district to elect not to accept the
Legislature's policy relating to encased firearms on campus but instead make such an act a third degree felony.
Ragland, 789 So. 2d at 535.
The lawfulness of the possession of a firearm on the Ridge Center campus recognizes Respondent's constitutional right to bear arms. § 790.25(4), Fla. Stat. (2006). However, the lawful exercise of a constitutional right by Respondent does not preclude adverse employment action by a public employer to protect a compelling governmental interest. Cf. Hitt v. North Broward Hospital District, 387 So. 2d 482 (Fla. 4th DCA 1980), citing Perry v. Sindermann, 408 U.S. 593 (1972)(public employer may take adverse employment action based on employee's exercise of constitutional rights if the employer shows that the governmental interest asserted to support such impingement is compelling).
Petitioner has a compelling governmental interest in the protection of students and school personnel from the physical harm that can be caused by firearms. That governmental interest is sufficient to discipline Respondent for the lawful exercise of his constitutional right to bear arms.
The evidence in this proceeding supports a finding of just cause for taking some adverse employment action against Respondent. On balance, however, the evidence does not support a finding that just cause exists to terminate Respondent's professional service contract. When all of the intentional
violation of Petitioner's written policy on May 11, 2007, and some previous date is considered with all of the surrounding facts and circumstances in evidence, just cause exists to suspend Respondent from his employment for 90 days beginning on June 12, 2007, and ending on September 9, 2007, and reinstating Respondent to his position and pay grade on September 10, 2007, with back pay and
benefits.
RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order.
DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007.
1/ All references to subsections, sections, and chapters are to Florida Statutes (2006) unless otherwise stated.
2/ The Arrest Report charges Respondent with a violation of Section 790.115 and does not distinguish between subsections.
Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP
Kevin P. Cox, Esquire
Deborah K. Kearney, General Counsel Department of Education
Interim Commissioner of Education Department of Education Turlington Building, Suite 1514
Dr. Gail McKinzie, Superintendent Polk County School Board
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.
