STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

CAROLINE WILLIAMS,

Respondent.

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) Case No. 11-2037

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RECOMMENDED ORDER

The parties agreed to the issuance of a Recommended Order based on stipulated facts and Lee County School Board policies, which were filed by the parties on June 10, 2011.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.

PRELIMINARY STATEMENT

On March 25, 2011, Lawrence D. Tihen, Ph.D., who is superintendent for the Lee County School District (School

District), issued a Petition for Termination of Employment (Petition), recommending to Petitioner, Lee County School Board (School Board), that Respondent, Caroline Williams

(Ms. Williams), be terminated from her employment with Petitioner and alleging that Ms. Williams violated School Board Policies 5.02, 5.03, and 5.29 and is not employable by the School Board pursuant to School Board Policy 5.04 because she committed an offense listed under section 435.04, Florida Statutes (2010).1/ Ms. Williams requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge. On May 2, 2011, the parties filed a Joint Response to Initial Order, stating that an evidentiary hearing was not necessary and that the parties would submit stipulated facts and proposed recommended orders. By Order dated May 10, 2011, dates for submission of stipulated facts and proposed recommended orders were set.

The parties filed stipulated facts and School Board policies on June 10, 2011. The School Board filed its Proposed Recommended Order on June 10, 2011. Ms. Williams's Proposed Recommended Order was received by the Division of Administrative Hearings after 5:00 p.m. on June 10, 2011; therefore, her Proposed Recommended Order was deemed filed on June 13, 2011, the next business day.

FINDINGS OF FACT

1. Ms. Williams has been employed by the School Board since January 8, 2000. She is employed as a bookkeeper at Alva Middle School. She is governed by the collective bargaining agreement between the School Board and the Support Association of Lee County (SPLAC). The standard for the discipline of support personnel is "just cause" pursuant to Article 7 of the SPLAC Agreement.

2. On or about November 24, 2010, Ms. Williams was charged with 33 felony counts of Fraud and Concealing Information to obtain prescriptions pursuant to section 893.17(7)(a)8., Florida Statutes. Ms. Williams timely notified the School District of her arrest.

3. On December 21, 2010, the Office of the State Attorney, Twentieth Judicial Circuit of Florida (State Attorney), elected not to prosecute Ms. Williams for 27 of the 33 charges and formally charged Ms. Williams by criminal information with five felonies for withholding information from a practitioner pursuant to section 893.17(7)(a)8.

4. On January 13, 2011, Ms. Williams entered into a Pretrial Diversion Program contract for a period of not less than six months and not more than 18 months. In the agreement, Ms. Williams agreed to certain conditions including, but not limited to, reporting to a probation officer, submission to drug

   
   

   testing, and the completion of 20 hours of community service. Upon Ms. Williams's successful completion of the Pretrial Diversion Program agreement, the State Attorney agreed to drop the charges and dismiss the Information.

5. On November 30, 2010, Ms. Williams was suspended with pay and benefits, pending the outcome of the School District's investigation into the alleged misconduct.

6. In accordance with provision 7.10 of the SPLAC Agreement, a predetermination conference for Ms. Williams was scheduled for March 3, 2011. Ms. Williams attended the predetermination conference, accompanied by her union-retained attorney, Robert Coleman. Ms. Williams was advised that the purpose of the predetermination conference was to give her an opportunity to respond to the allegations.

7. On March 10, 2011, the School District concluded its investigation. It determined that Ms. Williams's employment should be terminated pursuant to School Board Policy 5.04 due to Ms. Williams having committed a disqualifying offense enumerated under chapter 435, Florida Statutes; violation of School Board Policy 5.02, Ethical Standards, by failing to adhere to the highest ethical standards expected of all School District employees; violation of School Board Policy 5.03, General Requirements for Appointment and Employment, which requires that an employee be of good moral character; and violation of School

   
   

   Board Policy 5.29, Complaints Relating to Employees, by failing to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 & 120.57, Fla. Stat.

9. As a bookkeeper, Ms. Williams is considered to be an educational support employee pursuant to section 1012.40(1)(a), Florida Statutes. Section 1012.40(1)(b) provides:

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

   
   

10. The SPLAC Agreement, the collective bargaining agreement applicable to this case, provides that the standard for disciplining an educational support employee is just cause. The SPLAC Agreement does not define "just cause." Section 1012.795, pertaining to instruction staff, has been used as guidance in determining what constitutes just cause and provides:

    
    

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education:

    immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

    See, e.g., Lee Cnty. Sch. Bd. v. Simmons, Case No. 03-1498 (Fla. DOAH July 15, 2003; Lee Cnty. Sch. Bd. August 12, 2003).

11. Petitioner has the burden to establish the allegations in the Petition by a preponderance of the evidence. McNeill v.

    Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996). The School Board has alleged that Ms. Williams has violated School Board Policies 5.02, 5.03, and 5.29 and is unemployable by the School Board pursuant to School Board Policy 5.04 and

    section 435.04.

    
    

12. School Board Policy 5.02 provides:

    
    

    A high-performing learning community dedicated to student achievement must seek and retain a full qualified and high- performing workforce. Through its professional standards policies, the School Board of Lee County shall establish high standards and expectations for its professional faculty and staff, including:

    
    

    * * *

    
    

    1. Dedication to high ethical standards.

       
       

13. School Board Policy 5.03 pertains to the general requirements for appointment or employment and provides that each employee must be of good moral character.

14. School Board Policy 5.29 provides:

    
    

    All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by the State Board of Education Rule, and all local, State and federal laws.

    
    

15. No evidence was presented that Ms. Williams committed the offenses for which she was arrested. The evidence establishes that she was charged and arrested for the offenses. Without establishing that Ms. Williams committed the offenses, was found guilty of the offenses, pled guilty to the offenses, or pled nolo contendere to the offenses, the School Board cannot establish that Ms. Williams violated School Board Policies 5.02, 5.03, and 5.29. Based on the School Board's Proposed Recommended Order, the School Board is taking the position that Ms. Williams's arrest means that she committed the charged offenses. Being arrested does not equate to lack of dedication to high ethical standards; a violation of high ethical standards; a lack of good moral character; or conduct that is

    
    

    not lawful, unprofessional; or a failure to contribute to a positive learning environment for students.

16. The remaining issue is whether the School Board should terminate Ms. Williams because she was arrested. Section 435.04(2)(rr) provides:

    The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction:

    
    

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    (rr) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.

    
    

    Ms. Williams was arrested and charged with violations of section 893.13(7)(a)8. These offenses are disqualifying offenses.

17. School Board Policy 5.04(2) provides:

    
    

    If it is discovered during the period of employment that an employee has an arrest record and that employee did not provide this information to the District, the employee may be subject to disciplinary action, up to and including termination. If, as a result of the background check, it is determined that a current employee committed an offense that would disqualify

    
    

    him/her from employment under the District's hiring guidelines and the District was not otherwise notified, the employee shall be terminated from employment with the District.

    
    

18. Ms. Williams informed the School Board that she had been arrested. No evidence has been presented that she committed a disqualifying offense. Therefore, Ms. Williams is not in violation of School Board Policy 5.04(2).

19. Section 435.06(2)(b) provides:

    
    

    (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter.

    
    

20. Because Ms. Williams was arrested for a disqualifying offense, the School Board must remove her from contact with any vulnerable person, which in this case would be students, until the arrest is resolved in a way that would make her eligible for employment with the School Board. Contrary to the assertions of the School Board in its Proposed Recommended Order, it does not mean that her employment has to be terminated.

21. Ms. Williams entered into a Pretrial Diversion Program pursuant to section 948.08, Florida Statutes. Section 948.08(2) requires that the person who is charged with the offenses must

    
    

    voluntarily agree to the program. The statute does not say that the defendant must plea nolo contendere to the charges before being admitted to the program, and no evidence has been presented that Ms. Williams pled nolo contendere to the five felony counts.

22. Section 948.08 further provides:

1. The criminal charges against an offender admitted to the program shall be continued without final disposition for a period of 90 days after the date the offender was released to the program, if the offender’s participation in the program is satisfactory, and for an additional 90 days upon the request of the program administrator and consent of the state attorney, if the offender’s participation in the program is satisfactory.

   
   

2. Resumption of pending criminal proceedings shall be undertaken at any time if the program administrator or state attorney finds that the offender is not fulfilling his or her obligations under this plan or if the public interest so requires. The court may not appoint the public defender to represent an indigent offender released to the pretrial intervention program unless the offender’s release is revoked and the offender is subject to imprisonment if convicted.

   
   

3. At the end of the intervention period, the administrator shall recommend:

   
   

   1. That the case revert to normal channels for prosecution in instances in which the offender’s participation in the program has been unsatisfactory;

      
      

   2. That the offender is in need of further supervision; or

      
      

   3. That dismissal of charges without prejudice shall be entered in instances in which prosecution is not deemed necessary.

The state attorney shall make the final determination as to whether the prosecution shall continue.

1. The parties have stipulated that the State Attorney does not intend to proceed with the charges if Ms. Williams successfully completes the Pretrial Diversion Program. If she does not successfully complete the Pretrial Diversion Program, the criminal proceedings may continue. In any case, the arrest has not been resolved at this time.

2. Because it has not been established that Ms. Williams has committed the offenses for which she was arrested, there is no just cause for termination. Section 435.06 does not provide specifically that the arrested employee be terminated; it provides that the employee be removed from contact with vulnerable persons until the arrest is resolved and it is determined that the employee is still eligible for employment. The School Board can remove Ms. Williams from vulnerable persons by suspending her employment until the time that the arrest is resolved and Ms. Williams is determined eligible for employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Ms. Williams from employment without

pay effective April 19, 2011, with such suspension to continue until the State Attorney has dismissed the felony drug offenses against Ms. Williams; providing that Ms. Williams be reinstated to her position immediately upon the expiration of the suspension period; providing that, if Ms. Williams is prosecuted for and convicted of, or pleads guilty (or nolo contendere) to the pending charges as a result of her failing to successfully complete the Pretrial Diversion Program, she will be discharged from her employment; and finding that Ms. Williams has not violated School Board Policies 5.02, 5.03, and 5.29.

DONE AND ENTERED this 1st day of July, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 1st day of July, 2011.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

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

Fort Myers, Florida 33966

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Gerard Robinson, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Lawrence D. Tihen, Interim 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: 11-002037TTS

Orders for Case No: 11-002037TTS