00-002608 Palm Beach County School Board vs. Barry Hill Status: Closed Recommended Order on Wednesday, June 13, 2001.

Summary: Palm Beach County School Board failed to show, by clear and convincing evidence, that Respondent teacher possessed cocaine; therefore, recommend that termination be reversed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2608

)

BARRY HILL, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

in West Palm Beach, Florida, on January 10 and 11, 2001, before

Florence Snyder Rivas, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Laura Pincus, Esquire

Virginia Tanner-Otts, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406-5813

For Respondent : Matthew E. Haynes, Esquire

Chamblee, Johnson, Haynes & Martinelli

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner proved, by clear and convincing

evidence, just cause to terminate Respondent's

emplo y ment.

PRELIMINARY STATEMENT

By letter dated June 6, 2000, Superintendent of Schools

H. Benjamin Marlin (Marlin), acting on behalf of the School

Board of Palm Beach County (School Board), notified Respondent,

Barry Hill (Hill) of his recommendation to terminate Hill's

employment.

The events giving rise to this case occurred on or about

December 16, 1999, when Hill was arrested and charged with

driving under the influence (DUI) and driving with an expired

license tag and a broken taillight.

The School Board alleged that during the personal property

inventory that followed Hill's arrest, the police discovered a

plastic baggie containing 7.4 grams of cocaine, which

constituted the additional offense of introdu c tion of contraband

into a correctional instit u tion.

The School Board further alleged that two additional clear

plastic baggies, each containing 7.7 grams of c o caine, were

recovered from the car Hill was driving at the time of the

traffic stop.

The School Board asserts that the foregoing narcotics

related offenses constitute just cause for termination.

Pursuant to the Collective Bargaining Agreement between Palm

Beach County Clas s room Teachers Association (CTA) and the School

Board, Article II, Section M, these charges must be

substantiated by clear and convin c ing evidence in order to

justify termination.

On June 14, 2000, the School Board voted to terminate Hill,

who thereafter made a timely request for a formal hearing before

the Division of Administrative Hea r ings (DOAH).

At the final hearing, the School Board presented the

te s timony of V. Gray, Delray Beach Police Officer; Scott

McGuire, Delray Beach Police Officer; Paul Houlihan, Principal

of Palm Beach Gardens High School; Craig Lawson, Assistant State

Atto r ney; Christopher Jellinek, Criminal Probation Officer for

the Department of Corrections; Ray Miller, Personnel Compliance

A d ministrator for the School District; Sharon Kelley, Director

of Employee Relations for the School District; James P. Kelly,

Chief of the Palm Beach County School District Police; and Gina

Evanzia, Senior Forensic Scientist for the Palm Beach County

Sheriff’s Office Crime Labor a tory.

Hill presented the testimony of Helene Samango, Executive

Director of the CTA ; and his former attorneys Michael Dubiner

and Mark Wile n sky. Hill also testified in his own behalf.

Petitioner's Exhibits 1, 8-10, 13-14, 28-34, and 42-44 were

admitted into evidence. Respondent did not admit any exhibits

into evidence.

Official recognition was taken of Chapter 435,

Section 230.23, Florida St atutes; Section 230.33, Florida

Statutes; Section 120.569, Florida Statutes; Section 120.57,

Florida Statutes; Section 231.36, Florida Statutes; State Board

of Education A d ministrative Rules Chapter 6B-1 and Chapter 6B-4,

Florida Administrative Code; School Board Policies 3.12 and

3.27; and School Board D i rective 3.27.

The Transcript of the formal hearing was filed on

February 15, 2001. Petitioner filed a Motion for Leave to Amend

Administrative Complaint on February 28, 2001, which was granted

on March 13, 2001. Respondent filed a Motion for Dismissal on

March 1, 2001, which was denied on March 13, 2001.

The rendition of this Recommended Order was delayed when

the parties timely filed unopposed motions for enlargements of

time in which to file their Proposed Recommended Orders. Good

cause was shown as to each motion, and extensions of time were

therefore granted through May 10, 2001.

FINDINGS OF FACT

1. Hill was a School Board employee from 1978 up to and

including December 15, 1999. In the 1999-2000 school year,

Hill was assigned to Palm Beach Gardens High School. Although

classified as a "teacher on special assignment," his employment

responsibilities paralleled those of an Assistant Principal.

2. Hill's job responsibilities included monitoring the

halls, supervising the campus and working with st u dents in

various functions. He was also responsible for st u dent

discipline.

3. Hill enjoyed his work with students and was good at it.

He was very well liked by students and interacted positively

with them. His authority was rarely cha l lenged.

4. In his last two annual evaluations, Hill was described

as a "team player" who "maintains excellent rapport with all

students" and serves a "vital role" in the o p eration of the

school.

5. Hill's life and previously unblemished career began to

unravel on the night of December 16, 1999. Sometime around

midnight, Hill was the subject of a traffic stop. Hill was

driving a car owned by his sister, and was alone when pulled

over on Atlantic Avenue, Delray Beach, Florida.

6. Hill was detained because a Delray Beach police off i cer

had observed that Hill's driving was erratic; that his left

taillight was out; and the car's license tag was out of date.

7. At all times during the traffic stop and the events

which transpired after, Hill conducted himself as a "perfect

gentleman." He was polite and fully cooper a tive with the

police.

8. After failing a roadside sobriety test, Hill was

a r rested and taken to the Palm Beach County Jail.

9. Hill consented to a breath test, which revealed an

u n lawful blood alcohol level of .159/ .158.

10. The test result triggered an automatic suspension of

Hill's driving privileges; however, those privileges were

reinstated by the Department of Highway Safety and Motor

Vehicles when it came to light that the so-called Intoxilyzer

breath analysis machine on which Hill's test was performed had

not been maintained in the manner required by law.

11. While being held in custody, Hill's pe r sonal

belongings, including the contents of his pockets, were taken

from him at the jail. During this process, police claim to have

found a baggie weighing 7.4 ounces and containing cocaine.

12. The evidence established that at least two Delray

Beach police officers were involved in the portion of the

booking process which resulted in the alleged discovery of a

"dime bag" of cocaine; however, at the final hearing, Delray

Beach Police Officer Scott McGuire (McGuire) was the only

witness produced by the School Board who claimed knowledge of

the circumstances surrounding the alleged discovery of the

baggie, which allegedly contained 7.4 grams of cocaine.

13. McGuire's testimony fell far short of clear and

convincing evidence that Hill did in fact possess a dime bag, a

baggie, 7.4 grams of cocaine, or 7.4 grams of a substance

containing cocaine.

14. McGuire's testimony alternated general statements

about what usually happens during the booking process with what

happened with respect to Hill's booking on the night of

December 16, 1999 . McGuire's casual demeanor while testifying,

coupled with the imprecise nature of the questions asked and the

answers given by him, rendered the undersigned unable to

conclude that an appropriate chain of custody had been

maintained. In other words, the School Board failed to establish

by clear and convincing evidence that the contents of Hill's

pockets--and only the contents of Hill's pockets--were at all

times accounted for and handled in a manner adequate to assure

that no items were removed or added.

15. Initially, the School Board, relying solely upon

police reports, asserted that the baggie alleged to have been

found in Hill's possession contained 7.4 grams of cocaine.

16. That assertion was negated by Gina Evanzia (Evanzia),

Senior Forensic Scientist for the Palm Beach County Sheriff's

Office Crime Labor a tory and the only School Board witness with

personal knowledge of the actual baggie alleged to have been

found among Hill's possessions.

17. Evanzia testified that the baggie which the School

Board attributed to Hill was not large enough to hold 7.4 grams

of anything.

18. The baggie provided to Evanzia for testing and alleged

to have come out of Hill's pocket contained 18 milligrams of a

substance which contained cocaine, and not the 7.4 grams alleged

to have been found in Hill's possession on the night of

December 16, 1999.

19. At the time of Hill's arrest and at final hearing,

neither McGuire nor any other witness provided a useful physical

description of the baggie alleged to have been in Hill's pocket.

20. The gaps in McGuire's testimony coupled with the

unexplained discrepancies between the 7.4 gram baggie alleged to

have been found in Hill's possession and the much smaller baggie

about which Evanzia testified makes it impossible to determine

what, if any, contraband was found on Hill's person.

21. The alleged discovery of the 7 .4 gram baggie resulted

in the p o lice recommending that Hill be charged with introducing

contraband into a correctional facility. Declining to do so,

the State Attorney instead charged Hill with possession of

c o caine.

22. Prior to the time Hill was transported to the jail,

the arresting officers searched Hill's sister's car for

contraband. Finding none, the police made arrangements for the

car to be impounded and towed to a privately owned lot for

storage.

23. After the car was placed in the custody of the towing

company, one of its employees claimed to have found two more

baggies alleged to contain significant amounts of cocaine in

plain sight on the floorboard of the car.

24. Police tested the baggies for fingerprints but found

none. There is no credible evidence that there was any cocaine

on the floorboard of the car while it was in Hill's possession

and control. The testimony of Officer V. Gray (Gray) that he

failed to spot the baggies "[because he] didn't have a

flashlight to go through the car real good" was so implausible

that Gray was readily cross-examined out of it on the next page

of transcript. 1/ No criminal charges were brought against

Hill on account of these ba g gies.

25. Although Hill had substantial and legitimate defenses

to the criminal charges which the State Attorney did elect to

file, Hill accepted responsibility for the arrest by accepting

the State Attorney's offer to enter into a plea bargain which

would take into account Hill's previously spotless record.

26. The State Attorney, believing that Hill should be

afforded an opportunity to atone for the aberrational events of

December 16, 1999, and to rehabilitate hi m self, permitted Hill

to plead guilty to a misdemeanor charge of driving while

intoxicated, and to dispose of the cocaine charge by entering a

pretrial inte r vention (PTI) program.

27. At the time of the final hearing, Hill was in full

compliance with all of the terms of the PTI agreement.

28. At all times material to this case, Hill was

appropriately contrite about the DUI arrest. He was and is

willing to demonstrate his contrition and his commitment to

public service by accepting any assignment, coupled with any

degree of probation and/or superv i sion deemed appropriate by the

School Board, to assure that he is fully rehabilitated before

being allowed to resume contact with students.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdi c tion over the parties to and the subject of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

30. Pursuant to Section 231.36 (4)(c), Florida Statutes,

instructional personnel may be dismissed for proper or just

cause. Under the terms of the Collective Bargaining Agreement

between Palm Beach County Classroom Teachers Association and the

School District of Palm Beach County, Florida, Article II,

Se c tion M, the material allegations must be proved by clear and

convincing evidence.

31. "Clear and convincing evidence requires that the

ev i dence must be found to be credible; the facts to which the

witnesses testify must be precise and explicit and the wi t nesses

must be lacking in confusion as to the facts in i s sue. The

evidence must be of such weight that it produces in the mind of

the trier of fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations sought to be

established." Smith v. Department of Health and Rehabilitative

Services , 522 So. 2d 956, 957 (Fla. 1st DCA 1988); citing

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

32. The School Board has failed to meet this heavy burden

of proof. It has failed to establish by clear and convincing

evidence that Hill was in possession of cocaine on December 16,

1999.

RECOMMENDATION

Based o n the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a Final Order

reinstating Hill's employment with the School Board with back

pay and benefits retroactive to the date of termination.

DONE AND ENTERED this 13th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of June, 2001.

ENDNOTE

1/ Q: Assuming...it was actually

found on the floorboard in plain view in the

vehicle, you wouldn't need a flashlight to

see that?

A: I wouldn't think so.

Transcript, Volume I, pages 30, ln. 23-31, ln.1.

COPIES FURNISHED:

Laura Pincus, Esquire

Virginia Tanner-Otts, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406-5813

Matthew E. Haynes, Esquire

Chamblee, Johnson, Haynes & Martinelli , P.A.

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Art Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C-316

West Palm Beach, Florida 33406

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

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.