01-002850 Palm Beach County School Board vs. Cassandre Lawrence Status: Closed Recommended Order on Thursday, February 21, 2002.

Summary: Petitioner established just cause to discipline Respondent based on her having confessed to felony theft charge as part of deferred prosecution agreement, but her confession did not constitute just cause for termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2850

)

CASSANDRE LAWRENCE, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties ha ving been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter in West Palm Beach, Florida, on November 27, 2001, as

scheduled . The hearing was adjourned that same day.

APPEARANCES

For Petitioner: Alan M. Aronson, Esquire

Office of the Chief Counsel

for the School Board

Palm Beach County School Board

3318 For est Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Cassandre Lawrence, pro se

902 42nd Street

West Palm Beach, Florida 33407

STATEMENT OF THE ISSUE

The issue in this case is whether Petiti oner has just cause

to terminate Respondent’s employment as an educational support

employee, where Respondent has confessed to a felony shoplifting

charge as part of a deferred prosecution agreement pursuant to

which criminal charges will be dismissed if R espondent

satisfactorily complies with the agreement.

PRELIMINARY STATEMENT

In a Notice of Suspension Without Pay and Recommendation

for Termination From Employment dated June 29, 2001, the

Superintendent of Schools for the School District of Palm Bea ch

County, Florida notified Respondent Cassandre Lawrence that he

intended to urge the Palm Beach County School Board (the

"Board") to (a) suspend her without pay effective July 11, 2001,

and (b) to terminate her employment, effective 15 days after the

Boa rd's decision or, alternatively, following an administrative

hearing if timely requested. The superintendent based his

recommendation on allegations that Respondent had pleaded guilty

to a felony crime of retail theft and had failed to timely

notify the D istrict of her conviction.

The Board accepted the superintendent's recommendation at

its regular meeting on July 11, 2001. Respondent timely

requested a formal administrative hearing, and, on July 18,

2001, the matter was referred to the Division of Ad ministrative

Hearings.

The Administrative Law Judge assigned the case issued a

Notice of Hearing on July 25, 2001, that set the final hearing

for November 27, 2001, in West Palm Beach, Florida. Prior to

that date, the case was transferred to the undersi gned, who

convened the final hearing on November 27 as scheduled. The

Board appeared through counsel, and Respondent appeared pro se .

The Board presented two witnesses, both District employees:

Carl Holeva, Manager of Personnel Compliance; and Paul Lac hance,

Director of Professional Standards . In addition, the Board

introduced ten exhibits into evidence, numbered 1 - 4, 4 - A, 5, 6,

and 8 - 10. Respondent testified on her own behalf, presented no

additional witnesses, and offered no exhibits.

The final hear ing transcript was filed with the Division of

Administrative Hearings on December 24, 2001. Following

instructions given at the conclusion of the hearing, the Board

timely filed its proposed recommended order on January 22, 2002.

Respondent did not timel y file a proposed recommended order per

se, but she did submit a letter dated January 20, 2002, which

was received for filing on February 11, 2002. A copy of

Respondent’s letter was transmitted to the Board’s counsel

together with a Notice of Ex - Parte Com munication issued February

13, 2002.

The undersigned has considered the parties’ respective

post - hearing submissions.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. At all times material, R espondent Ca ssandre Lawrence

(“Lawrence”) was employed in the Palm Beach County School

District (the “District”) as a paraprofessional (teacher’s

aide), a position which she had held for approximately six years

before the events that gave rise to the instant proceedin g. 1

Lawrence was working at Northmore Elementary School during the

2000 - 01 school year.

2. O n December 26, 2000, Lawrence and a female companion

were arrested at the Boynton Beach Mall on shoplifting charges.

Lawrence was charged with grand retai l theft, which is a third

degree felony.

3. Pursuant to Board Rule 6Gx50 - 3.13, 2 all District

employees must report any arrests, convictions, “commitment[s]

to a pretrial diversion program,” or pleas of any kind within 48

hours after the reportable event . 3 At the time of Lawrence’s

arrest, however, the District’s schools were closed for

Christmas vacation, so she did not report the incident

immediately.

4. Instead, on January 9, 2001 —— Lawrence’s first day back

at work after the holidays —— Lawrence subm itted to the District’s

Chief Personnel Officer a written disclosure of her arrest,

which stated:

On December 26, 2000 I was shopping in the

Boynton Beach Mall with a friend.

Unknowingly, she put some items in my

shopping bag. I was falsely arrested. My

friend has admitted doing so [sic]. I felt

that being an employee of the School Board

that [sic] I should report this matter.

This matter would be dissolved [sic] very

soon. I have never been in any trouble or

accused before. This situation has really

been bothering me. After this matter has

been straightened out I will be forwarding

you the necessary paper work.

Lawrence’s statement was provided to the District’s Office of

Professional Standards on January 10, 2001. That office opened

a case file o n Lawrence.

5. On March 29, 2001, Lawrence reached an agreement with

the state attorney that provided for her referral to a pretrial

intervention program (“PTI”). See Section 948.08, Florida

Statutes (governing pretrial intervention programs). This

agr eement was reduced to writing on April 3, 2001, when the

parties executed a contract they called the Deferred Prosecution

Agreement (“Agreement”).

6. Under the Agreement, the state attorney promised, in

return for Lawrence’s agreement to abide by condit ions specified

in the Agreement, to defer the prosecution of Lawrence for a

period of 18 months from the date of April 3, 2001. Further,

the state attorney agreed that if Lawrence complied with the

conditions of the Agreement, then “no criminal prosecutio n

concerning [the shoplifting] charge [would] be instituted[.]”

By signing the Agreement, Lawrence expressly waived her

constitutional rights to a speedy trial.

7. On the same day she executed the Agreement, and in

consideration thereof, Lawrence signed this statement:

I, Cassandre Lawrence freely and voluntarily

admit that I am guilty of the allegations

[of grand theft] contained in [the charging

document].

(This statement will be referred to hereafter as the

“Confession.”) 4

8. Sometime shortly afterw ards —— the evidence does not

reveal the exact date —— Lawrence reported to the District that

she had entered into a PTI pursuant to the Agreement. As a

result, on April 19, 2001, Mr. Holeva of the District's Office

of Professional Standards met with Lawrence , her attorney (who

participated by telephone), and her union representative, 5 to

investigate the circumstances surrounding the shoplifting charge

against Lawrence. In this meeting, Lawrence acknowledged that,

to enter into a PTI, she had signed the Confe ssion wherein she

admitted guilt to the felony theft charge —— a so - called “435

offense.” 6

9. Following this interview, the Office of Professional

Standards referred Lawrence’s case to the Case Management Review

Committee (the “Committee”). The Committee is composed of a

dozen senior District employees who are responsible for

determining whether probable cause exists to discipline an

employee suspected of having engaged in misconduct.

10. Upon review, the Committee determined that Lawrence

had violated Board Rule 6Gx50 - 3.13 by failing to timely report

her arrest and later referral to a PTI within 48 hours after

these respective events had occurred. (Yet, it should be noted,

Lawrence had not concealed the material facts, nor had she

attempted to mislead the District.) However, the Committee

considered Lawrence’s purported failures strictly to follow the

notification rule to be, collectively, a minor infraction that,

without more, would have warranted at most a written reprimand.

11. Much more importa nt, the Committee found that Lawrence

was guilty of a “435 offense.” Because the District’s settled

policy and consistent practice is to terminate any employee who

has committed a “435 offense,” the Committee recommended that

Lawrence’s employment be term inated.

12. The Superintendent accepted the Committee’s

recommendation that Lawrence be fired. By letter dated June 29,

2001, the Superintendent notified Lawrence that he would

recommend to the Board at its July 11, 2001, meeting that she be

suspended w ithout pay pending dismissal.

13. The Board subsequently accepted the Superintendent’s

recommendation. Lawrence has been suspended without pay since

on or about July 11, 2001.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has per sonal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

15. Generally speaking, "[i]n accordance with the

provisions of s. 4(b) of Art. IX of the State Constitution,

district school boards [a re empowered to] operate, control, and

supervise all free public schools in their respective districts

and may exercise any power except as expressly prohibited by the

State Constitution or general law." Section 230.03(2), Florida

Statutes.

16. The dist rict superintendent is responsible for

recommending the placement of school personnel and requiring

compliance and observance by all personnel of the laws,

policies, and directives of the school district. The

superintendent has the authority to recommend to the school

board that a district employee be dismissed from employment.

See Section 230.33(7)(e), Florida Statutes.

17. "Under Florida law, a school board's decision to

terminate an employee is one affecting the employee's

substantial interests; the refore, the employee is entitled to a

formal hearing under section 120.57(1) if material issues of

fact are in dispute," for a school board is "a state agency

falling within Chapter 120 for purposes of quasi - judicial

administrative orders." Sublett v. Dis trict School Board of

Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

18. A district school board employee against whom a

dismissal proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated a nd the conduct which occasioned [said] violation."

Jacker v. School Board of Dade County , 426 So. 2d 1149, 1151

(Fla. 3d DCA 1983)(Jorgenson, J. concurring).

19. Once the school board, in its notice of specific

charges, has delineated the offenses allege d to justify

termination, those are the only grounds upon which dismissal may

be predicated, and none other. See Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999);

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Klein v. Department of Business and Professional

Regulation , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967 (Fla.

5th DCA 1992); Willner v. Department of Profession al Regulation,

Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

denied , 576 So. 2d 295 (1991).

20. At hearing, the school board has the burden to prove

the allegations contained in the notice of specific charges by a

preponderance of the e vidence, unless the collective bargaining

agreement covering the bargaining unit of which the employee is

a member prescribes a more demanding standard of proof. See

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996)("The Scho ol Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense which may warrant dismissal."); Sublett v.

Sumter County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995). Neither party here has pointed to or offered in evidence

any contractual provision that would require the Board to

satisfy a stricter standard of proof. 7

21. Where, as here, the employee whose discharge is sought

is an "educational support employee," the school board must also

act in accordance with the provisions of Section 231.3605,

Florida Statutes, which provides:

(1) As used in this section:

(a) "Educational support employee" means

any person employed by a district school

system who is so employed as a teacher

assistant, a n education paraprofessional , a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Department of Education or district

school board pursuant to s. 231.1725. This

section does not apply to persons employed

in confidential or management positions.

This section applies t o all employees who

are not temporary or casual and whose duties

require 20 or more hours in each normal

working week.

(b) "Employee" means any person employed

as an educational support employee.

(c) "Superintendent" means the

superintendent of sch ools or his or her

designee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a colle ctive bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

col lective 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.

(c) In the event the superintendent seeks

termination of an employee, the district

school board may suspend the employee with

or without pay. The employee shall receive

written notice and shall have the

opportunity to formally appeal the

termination. The appeals process shall be

determined by th e appropriate collective

bargaining process or by district school

board rule in the event there is no

collective bargaining agreement.

(Emphasis added).

22. Lawrence is an "educational support employee," within

the meaning of Section 231.3605(1)(a), Fl orida Statutes, who has

completed the probationary period and is covered by a collective

bargaining agreement. Accordingly, pursuant to Section

231.3605(2)(b), Florida Statutes, her employment may be

terminated "for reasons stated in the collective bargai ning

agreement."

23. An examination of the Union Contract reveals that a

bargaining unit member covered by the contract may be

disciplined, dismissed, demoted, or suspended for “just cause”

as governed by “applicable State Statutes.”

24. Lawrence, whose job entails the instruction and

supervision of young children, did not take issue with the

Board’s assertion that she is an employee required by law to be

screened pursuant to Chapter 435, Florida Statutes. It is

concluded that Lawrence is a covered employee under that

chapter.

25. Under both the more lenient “Level 1 screening

standards” and the more stringent “Level 2” standards, felony

theft is a disqualifying offense. See Sections 435.03(2)(r) and

435.04(2)(w), Florida Statutes. When a cov ered employee is

found guilty of a disqualifying offense, his or her employer

must either terminate the employee, transfer the employee to a

position for which background screening is not required, or

grant the employee an exemption from disqualification. Section

435.06(2), Florida Statutes.

26. It is concluded that conviction of a disqualifying

“435 offense” constitutes “just cause” for dismissal under the

Union Contract.

27. At this point, a few words about the Board’s rationale

for terminating L awrence’s employment are in order. First, the

Board’s position does not depend on whether Lawrence actually

committed the crime with which she was charged. Indeed, the

Board made no attempt at hearing to prove that Lawrence actually

stole merchandise fro m a merchant in the Boynton Beach Mall on

December 26, 2000, other than to introduce her Confession.

28. Second, Lawrence’s reasons for signing the Confession

are irrelevant to the Board. Thus, regarding the Confession,

the Board offered no evidence at hearing to rebut Lawrence’s

explanation for having admitted guilt —— which was, recall, that

she had done so not because she was in fact guilty but, on the

advice of counsel, to avoid the expense and uncertainty of a

trial.

29. Third, the Board has not relied on Lawrence’s alleged

technical violations of the notice requirements of Board Rule

6Gx50 - 3.13 as grounds for termination. To the contrary, the

Board made clear at hearing that these were minor infractions

for which an employee would not be fired.

30. In sum, then, the Board’s decision to discharge

Lawrence rests entirely on the undisputed fact that she signed

the Confession, an act which the Board describes as a “guilty

[plea] in her best interest.”

31. The dispositive question is whether Lawrence pleaded

guilty to the felony shoplifting charge.

32. In answering this question, the starting point is

Chapter 435, Florida Statutes, wherein the legislature clearly

expressed its intent that no covered employee (such as Lawrence)

be either:

[a] found guilty of, regardless of

adjudication, or

[b] entered a plea of nolo contendere or

guilty to,

any disqualifying offense (such as felony theft). See Sections

435.03(2) and 435.04(2), Florida Statutes.

33. Also important is Board Rule 6Gx50 - 3.12, which

authorizes the Board to discharge any District employee who has

been convicted of, among other crimes, a disqualifying offense

under Chapter 435, Florida Statutes. This Rule defines the term

“conviction” to mean “a determination of guilt that is the

result of a plea or trial regardless of whether adjudication is

withheld.”

34. The word “plea” is a term of art in criminal law.

Legally speaking, a plea is not precisely the same thing as a

confession or admission. As the former Fifth Circuit C ourt of

Appeals explained:

A confession only relates to a set of facts

and, therefore, requires only a knowledge of

the factual situation. A guilty plea is

something more; it is an admission of all

the elements of the crime charged. . . .

While all gui lty pleas are confessions, not

all confessions are guilty pleas.

United States v. Robertson , 582 F.2d 1356, 1368 (5th Cir.

1978)(en banc).

35. A confession is not conclusive evidence of guilt;

hence, a confession alone would not support a criminal

convic tion. See Kercheval v. United States , 274 U.S. 220, 223,

47 S.Ct. 582, 583 (1927). In contrast,

A plea of guilty . . . is itself a

conviction. Like a verdict of a jury it is

conclusive. More is not required; the court

has nothing to do but give judgme nt and

sentence.

Id.

36. Earlier in this Order, the undersigned denominated

Lawrence’s signed admission of guilt the “Confession.” That

label was deliberately chosen, reflecting the legal conclusion,

hereby stated, that Lawrence confessed to the crime; she did not

plead guilty . (That Lawrence referred to her Confession as a

“plea” in her hearing testimony is, of course, not determinative

of the legal characterization of her action.) As is clear from

the Agreement’s plain language, Lawrence waived her right to a

speedy trial, not her right to a trial.

37. The bottom line is, Lawrence has not been convicted of

the charge stemming from her December 2000 arrest at the Boynton

Beach Mall. Rather, she has agreed to abide by certain terms

and conditions i n return for the state’s promise to drop the

felony charge against her if she complies. If the state

attorney elects to resume the criminal prosecution of Lawrence,

e.g. because she breaches the Agreement, then “the state must

prove the charges against [h er] just as if no [deferred

prosecution] agreement had existed.” See State v. Fitzgerald ,

640 So. 2d 214, 216 (Fla. 2d DCA 1994).

38. As of this writing, the criminal charge against

Lawrence is still pending (unless the state attorney agreed to

shor ten the period of deferred prosecution —— but no evidence in

the record suggests that such has occurred). If the criminal

prosecution were reinstated, Lawrence might plead guilty to a

crime (though perhaps a lesser offense which would not be a

disqualifying “435 offense”), she might be convicted after a

trial, or a jury of her peers might find her not guilty . At

this point, speculating about possible outcomes serves no useful

purpose, except to underscore that, for all that has transpired,

Lawrence theoreti cally could be acquitted of the felony charge

upon which the Board would base her termination, were the

criminal case to proceed to trial.

39. Because Lawrence did not enter a plea of guilty or

nolo contendere, 8 and because she was not found guilty as th e

result of a trial, she clearly has not been “convicted” of a

crime as the term “conviction” is defined for purposes of Board

Rule 6Gx50 - 3.12. 9 It is equally clear that Lawrence was not

“found guilty” as that term is used in Sections 435.03(2) and

435.04 (2), Florida Statutes. 10 Therefore, she is not subject to

exclusion from employment pursuant to Section 435.06, Florida

Statutes.

40. For these reasons, the Board does not, at the present

time , have just cause to terminate Lawrence’s employment.

41. This does not mean, however, that Lawrence should get

off scot - free. The Confession is significant, because therein

Lawrence admitted (for whatever reasons) having committed an act

involving dishonesty, which is a serious matter. With just

cause, the Boa rd can and should discipline Lawrence for her

admitted conduct.

42. The appropriate punishment for Lawrence is suspension

from employment without pay until the criminal charge is dropped

pursuant to the Agreement or Lawrence is acquitted of the

charge , should she be prosecuted therefor. As soon as either of

these events occurs, Lawrence should be reinstated to her

previous position, subject to a 90 calendar day probationary

period during which she may be discharged without recourse. (Of

course, after reinstatement Lawrence should not be summarily

fired for past conduct, i.e. the subject arrest.) If, however,

Lawrence is found guilty of, or pleads guilty (or nolo

contendere) to, the felony theft charge that has been brought

against her, then the Board will have just cause to terminate

her employment, and should do so.

43. As for Lawrence’s alleged violations of Board Rule

6Gx50 - 3.13(2), it is concluded that the Board has established,

at most, one technical infraction relating to Lawrence’s failure

t o report her arrest within 48 hours after the occurrence. (The

allegation that she also failed to timely report her commitment

to a PTI was not established by a preponderance of evidence.)

Because it is unclear on the face of the Rule whether or not the

brief reporting period is tolled during District - wide holidays

and vacations, however, it was not unreasonable for Lawrence to

wait until returning to work after Christmas break to report her

arrest. More important is that Lawrence clearly did not attempt

to conceal the facts or mislead the District; she certainly

satisfied the spirit of Board Rule 6Gx50 - 3.13 if not the strict

letter thereof. Under these circumstances, it is concluded that

Lawrence should not receive any additional punishment based on

wha t can fairly be called a trifle. De minimis non curat lex .

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order that

suspends Lawrence from employment without pay effective July 11,

2001, such suspension to continue until the court has dismissed

the felony theft charge pending against her or until she is

acquitted of the charge, whichever first occurs. The final

order should further provide that Lawrence shall be reinstated

to he r prior position, subject to a 90 calendar day probationary

period, immediately upon the expiration of the suspension

period. Finally, the final order should state that if Lawrence

is prosecuted for and convicted of, or pleads guilty (or nolo

contendere) to, the pending charge, she will be discharged from

employment with the District.

DONE AND ENTERED this 21st day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law J udge

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 Hea rings

this 21st day of February, 2002.

ENDNOTES

1 / A paraprofessional is a non - instructional employee working in

a classroom setting with students.

2 / None of the Board Rules cited in this Order are printed in

the Florida Administrative Code, but all were introduced into

evidence at hearing. The Board’s rules should be on file with

the Secretary of State's Office. See Rule 6G - 1, Florida

Administrative Code.

3 / On May 18, 1999, Lawrence executed a document styled “Self -

Reporting of New Arrests and Convictions Affidavit” (which all

District employees are required to sign) in which she

acknowledged being aware of, and promised to comply with, the

Board’s self - reporting requirements.

4 / Lawrence’s unrebutted testimony was that she signed the

Confession, on the advice of counsel, solely in consideration of

the Agreement —— which allowed her to avoid the expense and

uncertainty of a trial —— and not because she had committed the

crime of shoplifting. In fact, at hearing Lawr ence vigorously

maintained her innocence of the criminal charge. For reasons

that will become clear, it is not necessary to decide whether

Lawrence actually committed the crime with which she has been

charged. The trier, however, accepts Lawrence’s testi mony in

this regard to this extent: Whatever reasons motivated her,

Lawrence did not sign the Confession because she believed

herself to be morally culpable for the alleged crime.

5 / Lawrence is protected under the Agreement Between the School

District of Palm Beach County, Florida and the Association of

Educational Secretaries and Office Professionals dated July 1,

2000 – June 30, 2003 (the “Union Contract”).

6 / The term reflects the fact that Chapter 435, Florida

Statutes, lists numerous crimes that will disqualify a

perpetrator from certain public occupations. Among these “435

offenses” are theft, robbery, and related crimes “if the offense

is a felony.” See Sections 435.03(2)(r) and 435.04(2)(w),

Florida Statutes.

7 / Where the district school b oard, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672 - 73 (Fla. 1993)("Once the executive has ne gotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); Hillsbor ough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); Palm Beach County School

Board v. Auerbach , No. 96 - 3683 (Fla. DOAH February 20, 1997)

(Recommended Order)("Long - standing case law establishes that in

a teacher employment discipline case, the school district has

the burd en of proving its charges by a preponderance of the

evidence. . . . However, in this case, the district must comply

with the terms of the collective bargaining agreement, which

. . . requires the more stringent standard of proof: clear and

convincing ev idence.").

8 / A plea of nolo contendere has the same effect as a guilty

plea in the criminal case in which it is entered. See Peel v.

State , 150 So. 2d 281, 291 (Fla. 2d DCA 1963), cert. denied , 380

U.S. 986 (1965).

9 / The Board was obviously aware of the difference between a

guilty plea and commitment to a pretrial diversion program,

because it specifically referenced both in Rule 6Gx5 — 3.13(2).

Clearly, had the Board intended to treat commitment to a

pretrial diversion program as the equivalent of a conviction, it

could easily have done so.

10 / Not to belabor the point, but the term “found guilty” in the

context of the subject statutes plainly refers to a finding by

the trier of fact upon evidence presented at trial. The term

cannot inferentially include situations where, as here, the

accused merely has confessed to a crime, because the statutes

specifically exclude from employment persons who, in the

alternative to being “found guilty,” have entered a plea of

guilty or nolo contendere. The latter proviso would be mere

surplusage if “found guilty of” equaled “confessed to,” for

guilty pleas are a subset of all confessions; thus, in other

words, whenever an accused pleads guilty, he necessarily has

confessed to the crime.

COPIES FURNISHED:

Alan M . Aronson, Esquire

Office of the Chief Counsel

for the School Board

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

Cassandre Lawrence

902 42nd Street

West Palm Beach, Florida 33407

Honorable Ch arlie Crist, Commissioner

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard

Room C316

West Palm Beach, Florida 33406 - 5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.