Findings Of Fact On March 28, 1978, Kenneth Williams submitted application for employment to Duval County School Board (Exhibit 24) in which he acknowledged prior arrest for auto theft in 1968 and indicated he was placed on parole. This application was never signed by Williams but was treated for all purposes, including his employment, as a complete application. Due to administrative error, the normal police name check was not accomplished on this application and Respondent was hired as a science teacher by Duval County school system. On 24 March 1978 Respondent applied to the Florida Department of Education for a teacher's certificate (Exhibit 12). On this application in Item V which inquired if applicant had been arrested, Respondent checked the "Yes" block and on the two lines below he showed the place, date, nature of charge and disposition of the two most serious charges for which Respondent had been arrested and convicted. He there showed a 1968 auto theft and a 1969 robbery. Disposition of both was that he is on parole. At the time this application was approved and issued on 23 May 1978, Petitioner was certainly aware that Respondent had been convicted of at least two felonies. Had inquiry been made to determine Respondent's full criminal record, it would have been disclosed that in 1965 Respondent was found guilty of petty larceny (Exhibit 13) and sentenced to six months; in 1967 he was convicted of two counts of larceny of a motor vehicle (Exhibit 14) and sentenced to seven years imprisonment; in 1969 he was convicted of robbery and sentenced to 25 years confinement to start after the seven-year sentence was terminated (Exhibit 15); that a probation of October 7, 1966, was set aside and Respondent was sentenced to serve six months for resisting an officer (Exhibit 16); that in 1974 Respondent was found to be in violation of Florida's Financial Responsibility Law and fined $25 (Exhibit 17); that in 1975 he was found guilty of attempted petty larceny and sentenced to 60 days, of which 45 were suspended (Exhibit 18); that in 1976 he was charged with battery and the charge was nol- prossed (Exhibit 19); and that in 1976 and 1977 he had three convictions for driving with a suspended license (Exhibits 20, 21 and 22). The three offenses for which Respondent had been sentenced to prison for 25 and seven years, i.e., robbery and two larcenies of vehicles, had been reported. Those not reported carried a total sentence of less than six months in jail. Following Respondent's arrest in 1979 on a charge of battery (Exhibit 19), this was reported to the Duval County school system, security division, with the information that Respondent had a lengthy arrest record. The information was then passed by the security division to the Personnel Department with the recommendation that Respondent not be employed in a position requiring contact with children (Exhibit 26). The information on the arrest record was also passed to the Florida Department of Education for appropriate action. At the time of this arrest, the Respondent was assigned as science teacher at Forrest High School. The battery charge was nol-prossed in 1980. Upon receipt of Respondent's arrest record at the Department of Education, the case was assigned to a staff member for investigation and recommendation. His report (Exhibit 31) states that Respondent does not deny the arrest record and "indeed recorded same in his application for certification." As noted above, Respondent reported the three most serious offenses of which he had been convicted in the space provided on the application form. The fact that arrests for the less serious offenses of petty larceny were not included by Respondent on his application was evidently known and considered by this investigator in reaching his conclusion that the issue of fraudulent application for certification does not arise in this application. At the time Exhibit 31 was prepared, the procedure for processing complaints against teachers was being revised and neither the old system nor the new system was followed to its proper conclusion. As a result no final action was taken by Petitioner on the recommendation of the investigator that no probable cause for disciplinary action existed on the allegation that Williams was unfit to retain his certification. At the time this recommendation was made (and without the prescribed follow-up to a final agency action), Respondent's record, as known by Petitioner, showed Respondent had been paroled in 1973, to remain on probation until 1986; that he enrolled at the University of North Florida and graduated with a BA degree in 1978 with a major in natural science; that he had been teaching with satisfactory evaluations in the Duval County school system for over a year; and that the battery charge stemmed from a domestic dispute. On 31 October 1980 Respondent proceeded to the apartment of his former girlfriend, Shirley Hall, and the mother of his eight-year-old son to take the boy a Halloween costume. When Ms. Hall would not allow the Respondent to see the boy, angry words were exchanged and Respondent departed. He was later seen shortly after midnight, November 1, 1980, in the vicinity of Ms. Hall's car which was parked in a lot near her apartment by both Ms. Hall's mother, who was visiting, and by a neighbor. By mid-morning on November 1, 1980, Ms. Hall became aware that the interior of her car had been burned during the night and she called the police. When she parked the car on the evening of October 31, 1980, Ms. Hall locked the car as she did every time she left the car unattended. Williams, two or three years ago when on friendly relations with Ms. Hall, had been given a key to Ms. Hall's car. No evidence was presented that he had returned the key or that he still had the key. Upon arrival, the police found the car unlocked and two plastic milk cartons of one-gallon capacity inside the car. Both of these cartons contained gasoline and one was melted about one-third away from the top. The physical evidence indicates that one carton with gasoline and rolled paper wick had been placed under the steering wheel and one placed on the back seat of the car. The wicks had been lighted, the door closed and the ensuing flames and smoke had blackened the windows and cause serious damage to the upholstery and overhead of the car. Lack of oxygen in the car caused both fires to become extinguished before enough heat was generated to cause the gas to explode or to blow out the windows. Approximately two days later Respondent was arrested and charged with arson (Exhibit 23). Following a mistrial the case was nol-prossed. This charge against Respondent received publicity in the Jacksonville papers and at least once was reported on TV news. While these charges were pending, Respondent was removed from his position at Forrest High School and assigned to the media center for the duration of that school year. In September 1981 Respondent was assigned to Ribault Junior High School as a science teacher. In March 1982 he received an overall evaluation of satisfactory from his principal at Ribault.
The Issue Whether Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.
Findings Of Fact The stipulations of the parties in the pre-hearing stipulation, the testimony presented, and the evidence received at the final hearing support the following Findings of Fact: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Escambia County School Board, issue a final order affirming suspension without pay of Respondent’s employment, pending disposition of his criminal charges. DONE AND ENTERED this 22nd day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 22nd day of December, 2017. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Malcolm Thomas, Superintendent Escambia County School District 75 North Pace Boulevard Pensacola, Florida 32505 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether there is just cause to terminate Crystal Edwards’ employment as a school bus driver with the Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Petitioner has the authority to hire, discipline, and terminate employees. Edwards started her employment with the School Board on July 22, 2013. Edwards was employed as a School Bus Driver I. She transported school-age children to and from school safely. As a School Board employee, Edwards was expected to comply with School Board policies. As part of the new hire orientation, Edwards received training on policy 3.02. She was also given a copy of the Transportation Handbook and trained on the procedures of the handbook. Edwards also signed the Self- Reporting of New Arrests and Convictions, policy 3.13. On March 24, 2014, Edwards was arrested by Riviera Beach Police Department and charged with criminal trespass. On June 6, 2014, she went into a pre-trial diversion program to resolve the criminal charge. Edwards failed to self-report the arrest and disposition of the criminal trespass charge to the School Board as required by School Board policies. On July 7, 2014, the School Board gave Edwards a written reprimand for violation of School Board policies 3.02, 3.13, and 1.013 for failing to self-report the arrest and disposition of her March 24, 2014, criminal charge. The written reprimand directed Respondent to refrain from violations of School Board policies and Florida state laws. The reprimand further stated that “failure to do so can result in appropriate disciplinary action being taken, up to and including termination.” On or about October 24, 2014, Edwards attended her son’s football game. At the time, Edwards did not have custody of her son but was allowed to attend his games. After talking to her son, Edwards decided that he was in danger and took him away from his guardian to the police station to report her concerns about his safety. On February 7, 2015, Edwards was arrested by Palm Beach County Sherriff’s Office and charged with two felony counts of Family Offense—Interference with Custody of Minor Incompetent Person for her actions of removing her son from the football field location on October 24, 2014, and taking him to the police station. Edwards’ actions were in violation of the court order, which prohibited Edwards from visiting with her son without supervision. On February 9, 2015, Edwards self-reported her February 7, 2015, arrest to the School Board. The same day, the Office of Professional Standards (“OPS”) opened an investigation into the criminal allegations. Brenda Johnson ("Johnson"), OPS human resources specialist, was assigned to investigate the matter. An administrative open-case letter was issued to Edwards informing her that OPS was opening an investigative case regarding the off-duty criminal activity and arrest of February 7, 2015. In the February 9, 2015, letter, OPS instructed Edwards to report any subsequent conviction in accordance with policy 3.13 and stated: This self-report must be completed within forty-eight (48) hours of the final judgment being entered. Failure to report your conviction or plea as described could result in disciplinary action, up to and including termination of employment. In addition, as a result of a conviction/plea you may be subject to disciplinary action for violations of School Board Policies that prohibit criminal activity. On January 20, 2016, Edwards self-reported her next arrest of domestic battery on the School Board Self Reporting of Arrest Information Template form. Edwards was incarcerated from February 9, 2016, to Friday, February 19, 2016. On February 12, 2016, the State Attorney’s Office dismissed Edwards’ battery charge by filing a no-file document while Edwards was incarcerated. Johnson was monitoring Edwards’ criminal court cases and she discovered the battery charge was dismissed by looking at the court docket on the website. By letter dated February 18, 2016, the OPS issued an administrative closure letter because of the no-file dismissal of Edwards’ battery case. On February 19, 2016, Edwards’ February 7, 2015, felony case was reduced to a misdemeanor, and she pled guilty to a one- count misdemeanor charge of contributing to the delinquency of a child, a violation of section 827.04(1)(a). The other felony count was nolle prossed. Edwards was adjudicated guilty, sentenced to 14 days jail with credit for 14 days served, and standard court costs were imposed. She had a lawyer who represented her in the matter, case number 2014CF013245AMB. On February 23, 2016, Edwards self-reported the conviction of the final judgment.1/ She provided her supervisor, Howard Brown, a copy of the battery no-file paperwork and the misdemeanor conviction in person. On February 23, 2016, Johnson discovered that Edwards had been convicted of contributing to the delinquency or dependency of a child. Since Edwards’ conviction was a disqualifying offense, Johnson directed the reassignment of Edwards to a non-student contact position. By letter dated February 23, 2016, Edwards was re-assigned to a temporary duty location at North Transportation Facility pending the outcome of the investigation. Johnson continued the investigation of Edwards’ allegations to determine if Edwards met the level II background screening criteria to maintain her eligibility for employment. School Board employees are required to meet the requirements for level II background screening under section 435.04. On March 7, 2016, a predetermination meeting was held with the OPS and Edwards, who was represented by a union representative. The purpose of the predetermination meeting was to allow Respondent the opportunity to respond to the allegations and provide any additional information supportive to the case or to rebut any information. Johnson completed Edwards’ investigation and determined that Edwards’ conviction for contributing to the delinquency or dependency of a child under section 827.04 is a disqualifying offense. As such, Johnson concluded that Edwards is ineligible for employment and Edwards’ actions and conviction violated the self-reporting of arrest policy 3.13; Code of Ethics 3.02 and 3.106; criminal background check policy 3.12; and section 435.04. Johnson testified that based on the investigation, the superintendent recommended that Edwards be terminated because her conviction of a disqualifying offense made her ineligible for employment. Superintendent Robert Avossa has consistently terminated employees who no longer are qualified for their position based on them not meeting the background policy 3.12 and section 435.04. The School Board terminates employees who are convicted of disqualifying offenses enumerated under section 435.04. On April 13, 2016, by letter, the School Board notified Edwards of the recommendation of suspension without pay and termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order suspending Respondent, Crystal Edwards,’ employment for a period of 15 days without pay and terminating her employment from the School District of Palm Beach County, Florida. DONE AND ENTERED this 24th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 24th day of January, 2017.
The Issue The issue in the case is whether the Orange County School Board (Petitioner) had just cause for termination of the employment of Michele O'Neill (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed under a professional services contract by the Petitioner as a classroom teacher at Lakemont Elementary School, a unit of the Orange County Public School System. At all times material to this case, Dr. Susan Stephens was the principal of Lakemont Elementary School. The Petitioner has adopted a "Drug-Free Workplace" policy (the Policy) that in relevant part provides as follows: No employee shall use, possess, manufacture, distribute, or be under the influence of controlled substances or alcohol while on duty or on school board property, except when he/she is using a controlled substance in conformance with the instructions of a physician. The Policy provides for "Reasonable Suspicion testing" and provides that such tests may be performed "based on a belief that an employee is using or has used alcohol or drugs" in violation of the Policy, and further provides as follows: Reasonable suspicion testing must be based on specific, contemporaneous documented objective and articulable observations and circumstances which are consistent with the long and short term effects of alcohol or substance abuse; including, but not limited to, physical signs and symptoms, appearance, behavior, speech and/or odor on the person. Supervisors who have Reasonable Suspicion that an employee may be under the influence while on duty are required to immediately direct the employee to submit to testing as provided for by the board. Reasonable Suspicion shall be in accordance with training provided to managers, and will require confirmation by two trained managers. One of the two managers may include the supervisor, if trained. A refusal to submit to testing will result in a recommendation to terminate the employee. The Policy includes an "observation checklist" of characteristics indicative of potential alcohol or controlled substance use, which "includes, but is not limited to" slurred speech, confusion/disorientation, odor of alcohol on breath or person, rapid/continuous eye movement or an inability to focus, and improper job performance and/or violation of authority. Dr. Stephens has received training in "Reasonable Suspicion" observations. During the 2002-2003 school year, the Respondent was seriously injured in an automobile crash that required an extended absence from the classroom. She eventually returned to teaching about a year later, but continued to suffer the after- effects of the injuries, including an altered and uneven manner of walking. For the vast majority of the Respondent's employment with the Petitioner, her performance has been evaluated as "effective," and she was regarded as a good teacher. There is some evidence that, after the Respondent's post-accident return to teaching, there were concerns related to the Respondent's job performance. A letter from Dr. Stephens to the Respondent dated February 25, 2005, specifically addressed a number of issues, including collaboration with co-workers, anger management, and focusing on academic instruction during classroom time. Also subsequent to the Respondent's return to the classroom, a small number of parents whose children were being taught by the Respondent expressed various concerns about the education the students were receiving. For various reasons, some parents asked that their children be transferred to the classrooms of other teachers. Late in the school day on Friday, September 30, 2005, a parent contacted Dr. Stephens and reported that during a classroom meeting with the Respondent, the parent detected the odor of alcohol on the Respondent. The parent asked that the child be transferred to another teacher's classroom. Dr. Stephens attempted to locate the Respondent at that time, but the school day was finished and the Respondent had apparently left the campus. On Monday, October 3, 2005, Dr. Stephens came to the Respondent's classroom to discuss the requested transfer, and during the meeting, Dr. Stephens detected the odor of alcohol emanating from the Respondent. Dr. Stephens returned to her office and asked the school's assistant principal, Randall Hart, to go to the Respondent's classroom and talk to her. He did so and then returned to Dr. Stephens' office where he reported to her that the Respondent smelled of alcohol. Dr. Stephens contacted the Petitioner's Employee Relations department to inquire as to how to proceed, and was provided the names of several school board personnel who had received training in "Reasonable Suspicion" observations. From the names provided to Dr. Stephens, she contacted Dr. Suzanne Ackley, principal of Brookshire Elementary School in Winter Park, and asked her to come to Lakemont Elementary School and observe a teacher for indications of being under the influence. Dr. Ackley arrived shortly after being contacted by Dr. Stephens. Dr. Stephens and Dr. Ackley went to the Respondent's classroom and met with the Respondent. No students were present in the room at the time. Dr. Stephens identified Dr. Ackley as the principal of Brookshire Elementary. Dr. Ackley engaged the Respondent in a conversation about curriculum issues. During the meeting, Dr. Ackley detected the odor of alcohol emanating from the Respondent, and believed that the Respondent's speech sounded "slurred." After meeting the Respondent, Dr. Ackley and Dr. Stephens returned to the school office. Dr. Ackley told Dr. Stephens that she had detected the odor of alcohol while talking to the Respondent. Dr. Ackley then left the Lakemont campus. Shortly after Dr. Ackley departed, and in accordance with the Policy, Dr. Stephens informed the Respondent that there was concern related to possible alcohol use. Dr. Stephens ordered the Respondent to accompany her to a facility used by the school board for alcohol and controlled substance testing. Although the Respondent initially agreed to accompany Dr. Stephens to the facility and to submit to the test, within a few minutes, the Respondent changed her mind and refused to travel with the principal to the testing facility. The Respondent stated that she wanted to go home prior to going to the testing facility, ostensibly to retrieve some prescription medications that she wanted to take to the facility. The Respondent testified that she had not been using alcohol on October 3, 2005. She offered vague testimony about an immaterial personal matter, the import of which was that the Respondent went to an emergency room on October 1, 2005, where she received prescriptions for medications including Flexeril, a muscle relaxant. She asserted that she did not refuse to submit to the test, but that she merely wanted to drive herself home to retrieve the prescription medications prior to continuing on to the drug testing facility, to establish that the behaviors exhibited were related to the use of the medications prescribed at the hospital. The Respondent's testimony is not credible and is rejected. The Respondent offered the expert testimony of Dr. Rahn Shaw, who opined that the prescribed medications could have accounted for some of the Respondent's physical presentation on October 3, 2005; however, there is no evidence that use of the referenced medications could create an odor of alcohol on or about a person taking the medications. Dr. Stephens declined to permit the Respondent to go home before submitting to the test, and continued in attempting to convince the Respondent to accompany her to the testing facility. Dr. Stephens specifically and repeatedly advised the Respondent that failure to comply with the request would jeopardize the Respondent's employment status, but the Respondent refused to comply. The Respondent decided to leave the school grounds. She went to her car and began to drive the vehicle from the campus, but did not get far from her parking space. The Respondent was prevented from doing so by the school's D.A.R.E. officer, who arrived after being contacted by school personnel concerned about the Respondent's ability to operate the vehicle. The D.A.R.E. officer is also a uniformed police officer. The officer testified that she eventually persuaded the Respondent to exit the vehicle and escorted her to an office in the school where students, who were passing in the vicinity, would not see the Respondent. The officer further testified that Respondent smelled of alcohol at the time the officer intervened in the situation. The Respondent insisted that she was not under the influence of alcohol, and in response, the officer performed a gaze nystagmus test and a "finger-to-nose" test, after which the officer concluded that the Respondent was not capable of driving herself home. Several of the Petitioner's witnesses testified that they were concerned about the Respondent's ability to transport herself home in her personal vehicle. The refusal to permit the Respondent to transport herself to her home or to the testing facility was clearly reasonable based on the observations of the Respondent's behavior. It should also be noted that Dr. Shaw testified that persons using Flexeril "shouldn't be driving or operating machinery because it makes everybody I know drowsy and lethargic" and that "you could qualify for a DUI in this state by taking that medicine and driving most of the time." A cab was called, and the Respondent was taken home in the cab on October 3, 2005. Prior to leaving the campus, Dr. Stephens again attempted to convince the Respondent to submit to the testing and advised that the Respondent's employment was in jeopardy, but to no avail. Dr. Stephens had been in communication with the Employee Relations department during the incident, and had been told to direct the Respondent to contact the Employee Relations department on Tuesday, October 4th, if she chose not to comply with the testing directive. After determining that the Respondent would not comply with the directive and prior to the Petitioner's departure from the school grounds on October 3rd, Dr. Stephens instructed the Respondent to contact the Employee Relations department on the next day. The Respondent later returned to the school grounds and retrieved her vehicle. The Respondent failed to contact the Employee Relations department on October 4, 2005. At the close of that day, and after the Respondent had failed to make contact, Shonda Von Schriltz, senior manager for the Petitioner's Employee Relations department, sent two letters by express mail to the Respondent. The first letter gave notice of a meeting scheduled for October 10, 2005, to discuss the incident. The second letter advised that the Respondent would be placed on "Relief of Duty" with pay, and that the Respondent was required to remain available to school personnel during school hours while on the paid relief period. Attempts to deliver the letters apparently failed for reasons that are unclear. In any event, there was no communication between the Respondent and the Petitioner until October 13, 2005. On that date, a predetermination conference, which was arranged based on an October 12, 2005, request from a teacher's union representative, was held. During the meeting, at which Ms. Von Schriltz was present, the Respondent denied that she had used alcohol on October 3, 2005, or that she had been requested to submit to testing. She had no recollection of having been told anything by Dr. Stephens, and was unable to offer a rationale for leaving campus early on October 3rd. During the October 13th meeting, the Respondent was directed to maintain contact with the Employee Relations department, but after the meeting ended, there was no contact until November 8, 2005, when the Respondent answered one of several telephone calls that had been placed to her number by Ms. Von Schriltz. During the November 8th conversation, the Respondent had no recollection of Ms. Von Schriltz or of the October 13th meeting, and instructed Ms. Von Schriltz to contact the Respondent's legal counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Michele O'Neill. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of June, 2006. COPIES FURNISHED: Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Elizabeth F. Swanson, Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of November, 2011.
The Issue The issue in this case is whether the suspension without pay of Respondent, Deborah Peterson, by Petitioner, Escambia County School Board (the “Board”), was justified or appropriate.
Findings Of Fact The Board is responsible for hiring, supervising, and firing all employees within the Escambia County School system. This responsibility includes taking administrative action when an employee violates any rule or policy created by the Board. Respondent is employed by the Board as a cafeteria worker at Westgate School, a K-through-12 school for special needs students. She is not an instructional employee, but she does have direct contact with students. Respondent has had no prior disciplinary or negative administrative action taken against her. She is considered a very good employee and would be welcomed back to work once she is eligible. By letter dated August 29, 2017, Respondent was notified that “you are placed on suspension with pay effective August 18, 2017, pending the outcome of an arrest for a disqualifying offense.” The letter did not identify the disqualifying offense nor did it cite to any authority supporting whether the alleged offense was disqualifying in nature. It merely stated that Respondent had been arrested and that the arrest was for a disqualifying offense. On the same day, Respondent was notified by way of another letter from the Superintendent of schools that he was recommending to the Board that Respondent’s suspension be without pay. Although the Superintendent can suspend an employee, only the Board has authority to do so without pay. The letter said the matter would be brought up at the upcoming Board meeting on September 19, 2017. Once again, the letter did not identify the specific facts, stating only that “[t]he conduct at issue involves an arrest for a disqualifying offense.” The letter did not cite to any authority for the proposed action. The letter did, however, include a statement that Respondent could “review any and all documentation and records that support this action.” Respondent was subsequently notified (via letter dated September 21, 2017) that the Board had approved the Superintendent’s recommendation for suspension without pay. The letter stated in pertinent part that, “[Respondent] is suspended without pay beginning Wednesday, September 20, 2017, based on conduct as more specifically identified in the notice letter to the employee.” At no point did any of the correspondence to Respondent specifically identify the disqualifying offense. However, as noted above, Respondent was invited to meet with Ms. Oakes, the Board’s director of personnel services, after the August 29, 2017, letters were provided to Respondent. Respondent did meet with Ms. Oakes, who explained that the disqualifying offense alluded to in the letters was Respondent’s arrest for theft in the State of Alabama. Respondent was, therefore, orally notified as to the disqualifying offense at issue. This fact was established by Ms. Oakes during her testimony at final hearing. Respondent did not testify at final hearing or otherwise attempt to contradict Ms. Oakes’ testimony. According to documentary evidence presented at final hearing, Respondent had been arrested for illegally redeeming a “Redemption ticket” at a casino in Armore, Alabama. The value of the ticket, which belonged to one of Respondent’s friends, was $1,180.89. After her arrest for the theft, Respondent entered into a pre-trial diversion agreement with the State of Alabama. Pursuant to the agreement, Respondent admitted to the crime as charged, waived her right to a speedy trial, consented to six months’ supervision by the Court, agreed to pay an assessment of $750, was to make restitution to the victim, was to refrain from the use of alcohol or drugs, agreed to not violate any federal or state laws, was to maintain gainful employment, and would have no further contact with the victim. Once the terms of the pre-trial diversion agreement were completed, all charges against Respondent would be nolle prossed. As of the date of final hearing, the pre-trial diversion agreement was still in place. No competent, substantial evidence was introduced as to how Respondent is progressing in her pre-trial diversion. The Board does not consider the action taken against Respondent to be disciplinary in nature. From the Board’s perspective, only actions taken as a result of an employee’s violation of their school-related duties are deemed disciplinary. Other actions, such as in Respondent’s case or in the case of a teacher allowing their certification to lapse, for example, are not deemed disciplinary. Rather, they are “administrative” actions. The action taken by the Board does not divest Respondent of her status as an “employee” of the Board. She is suspended, but not terminated from employment. This fact is important as Respondent has apparently been engaged in training to become a school bus driver. However, she was purportedly notified by someone from the school that she could not finish her training because of her suspension.1/ Respondent is required under her pre-trial diversion contract to either be gainfully employed or in a training or educational setting. Respondent challenges the action by the Board on two bases: 1) that the notice she received was deficient because the letters did not contain a specific statement as to the disqualifying offense; and 2) that the crime of theft cannot be used by the Board for disciplining an employee because the crime does not appear in the list of disqualifying offenses set forth in chapter 1012, Florida Statutes. The offense is included in chapter 435, but Respondent asserts that chapter does not apply to school boards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Escambia County School Board, upholding the decision to suspend Respondent, Deborah Peterson, without pay. DONE AND ENTERED this 1st day of March 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 March 2018.
