STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on January 26, 2010, by video teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner has just cause to terminate Respondent’s employment as a non- instructional employee, and, if not, what penalty is reasonable.

PRELIMINARY STATEMENT

On November 20, 2009, Petitioner filed a Petition for Termination of employment with DOAH. A final hearing was conducted on January 11, 2010.

At the hearing, Petitioner presented the testimony of one witness and submitted 10 exhibits for admission into evidence. Respondent did not appear.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the Transcript of the hearing filed with DOAH on February 5, 2010. Petitioner filed its Proposed Recommended Order (PRO) on February 15, 2010.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner employed Respondent as a bus operator on May 17, 2001. The employment is governed by the terms of the collective bargaining agreement between Petitioner and the Support Association of Lee County (SPALC). Respondent is an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2008).1

2. On March 26, 2009, a jury convicted Respondent of burglary of a dwelling, a second degree felony, and one count of battery. Respondent unlawfully entered the home of her husband and, while remaining inside without permission, committed

   battery on another individual who was there with her husband's permission.

3. School Board Policy 5.04 prohibits the employment of an individual who has committed burglary within the past 10 years. The policy also prohibits the employment of an individual who has committed battery within five years. Respondent is not employable under either guideline, and Respondent presented no evidence in mitigation of either policy.

   CONCLUSIONS OF LAW

   
   

4. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), Fla. Stat. (2009). The parties received adequate notice of the final hearing.

5. 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).

6. Petitioner satisfied its burden of proof. For the reasons stated in the Findings of Fact, Petitioner showed by a preponderance of evidence that a felony and misdemeanor

conviction within one year provided just cause for Petitioner to terminate Respondent's employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order terminating Respondent's employment.

DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2010.

ENDNOTE

1/ References to subsections, sections, and chapters are to Florida Statutes (2008), unless otherwise stated.

COPIES FURNISHED:

Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966

Sandra Williams 1620 Heiman Avenue

Fort Myers, Florida 33905

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, Superintendent Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

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: 09-006436TTS

Orders for Case No: 09-006436TTS