03-002497 Palm Beach County School Board vs. Ray Ano Status: Closed Recommended Order on Tuesday, June 29, 2004.

Summary: Respondent may not be terminated solely because he pled guilty to an offense that would disqualify him from employment pursuant to Section 435.06, Florida Statutes. Section 1012.33 provides the exclusive basis for termination during the school year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03-2497

)

RAY ANO, )

)

Respondent. )

_________________________________)

AMENDED RECOMMENDED ORDER

The parties presented this case in legal briefs submitted

in lieu of an evidentiary hearing pursuant to the Agreed Motion

to Request Submission of Briefs in Lieu of Hearing filed

April 30, 2004, which was granted in an Order entered by

Patricia Hart Malono, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings, on May 4, 2004.

STATEMENT OF THE ISSUES

(1) Whether the employment screening standards in

Chapter 435, Florida Statutes, can, without more, serve as the

basis for the Petitioner's terminating the Respondent's

employment as a teacher.

(2) If so, whether Respondent's actions were sufficient to

warrant termination of his employment.

PRELIMINARY STATEMENT

In the Administrative Charges section of a Petition for

Suspension Without Pay and Dismissal From Employment dated

July 1, 2004, the Palm Beach County School Board ("School

Board") asserted that just cause existed to suspend and

terminate Ray Ano from his employment as a teacher. Mr. Ano

timely requested a formal hearing, and the School Board

forwarded the matter to the Division of Administrative Hearings

for assignment of an administrative law judge. A Notice of

Hearing was issued on July 31, 2003, scheduling the final

hearing for October 20, 2003.

On August 6, 2003, the School Board filed an Amended

Petition for Suspension Without Pay and Dismissal From

Employment, in which it alleged that Ray Ano failed to report to

the School Board his arrest for defrauding an innkeeper,

obstructing justice, and resisting an officer with violence;

that Mr. Ano failed to report to the School Board his plea of

guilty to these three charges; and that the charge of resisting

an officer with violence is a violation of Sections 435.03(2);

435.04(2)(gg) and 435.06(2), Florida Statutes (2002). 1 The

School Board asserted that Mr. Ano should be suspended without

pay for 15 days and terminated "pursuant to Sections 1012.33,

1012.27(5) and 435.06(2), 435.03(2), 435.04(2)(gg), Florida

Statutes; Florida Administrative Code Rules 6B-1.006, 6B-4.009;

Palm Beach County School Board Policies 1.013, 3.13 and 3.27 and

Article 2, Section M of the Collective Bargaining Agreement

between the Classroom Teachers Association and The School Board

of Palm Beach County." Mr. Ano filed Respondent's Motion for

More Definite Statement with Incorporated Memorandum of Law on

November 17, 2003; the School Board responded that it had no

objection to providing a more definite statement, stating that

the School Board relied on Florida Administrative Code Rule 6B-

4.009(2) and (6) when drafting its Amended Petition.

On October 10, 2003, the parties filed a Joint Motion for

Continuance, which was granted in an Order entered October 14,

2003. The final hearing was re-scheduled for December 5, 2003,

but this hearing was also continued in an Order entered

December 2, 2003, granting the Respondent's Agreed Motion to

Cancel Hearing and Stay Proceedings. The case was placed in

abeyance by Order entered January 5, 2004, to allow the parties

the opportunity to pursue settlement negotiations. On

February 19, 2004, Mr. Ano advised that the parties were unable

to reach a settlement agreement, and the final hearing was

re-scheduled for May 7, 2004.

On April 30, 2004, the parties filed their Agreed Motion to

Request Submission of Briefs in Lieu of Hearing. The motion

included stipulations of facts and law by the parties, and the

parties also specified:

n. The sole question remaining for

determination by the court is as follows:

1. Whether or not F.S. §435 is applicable

to teachers, and - if so - whether the

actions of Respondent herein are sufficient

to warrant termination of his employment. [ 2 ]

The motion was granted in an Order entered May 4, 2004, the

hearing scheduled for May 7, 2004, was cancelled, and the

parties were directed to file their legal briefs on or before

May 21, 2004.

The parties timely filed their legal briefs, and the

arguments presented therein have been considered in preparing

the Recommended Order. Those portions of the stipulations

included in the Agreed Motion to Request Submission of Briefs in

Lieu of Hearing setting forth the facts underlying this case

have been included herein as findings of fact, with some

modifications that do not change the substance of the stipulated

facts. Those portions of the stipulations setting forth the

statutes and rules underlying this case have been included

herein in the Conclusions of Law.

FINDINGS OF FACT

Based on the stipulations of the parties and on the

contents of Exhibits 1 through 4 attached to the Agreed Motion

to Request Submission of Briefs in Lieu of Hearing, the

following findings of fact are made:

1. At all times material to these proceedings, Mr. Ano was

employed by the School Board as a teacher, a position that he

has held for approximately 21 years.

2. The facts and events stated in the Palm Beach County

Sheriff's Office Offense Report prepared April 5, 2002, 3 led to

the arrest of Raymond Ano and his wife, Toby Ano, late on the

evening of March 28, 2002, and the early morning hours of

March 29, 2002.

3. An Amended Information was filed on September 18, 2002,

with the Criminal Division of the Circuit Court of the Fifteenth

Judicial Circuit in and for Palm Beach County, Florida, charging

Raymond T. Ano with battery on a police officer, resisting an

officer with violence, and defrauding an innkeeper.

4. On October 31, 2002, Mr. Ano pled guilty to the

offenses of battery (lesser), resisting an officer with

violence, and defrauding an innkeeper. In an Order entered

November 5, 2002, the court withheld adjudication of guilt and

sentenced Mr. Ano to probation for 18 months for defrauding an

innkeeper and for resisting an officer with violence and for

12 months for battery, with the sentences to run concurrently.

5. Mr. Ano did not report his arrest and guilty plea to

the School Board; however, this violation of School Board policy

is not, of itself, sufficient to justify termination of his

employment. 4

6. On July 16, 2004, the School Board voted to suspend

Mr. Ano without pay and to terminate his employment, based on

Mr. Ano's plea of guilty to the charge of resisting an officer

with violence.

7. The School Board followed its procedural rules in

investigating this matter and in voting to terminate Mr. Ano's

employment.

8. An Amended Petition for Suspension without Pay and

Dismissal from Employment was issued July 30, 2003, in which the

School Board alleged that there was just cause for Mr. Ano's

suspension and termination based on his failure to report his

arrest and his plea of guilty to an offense enumerated under

Chapter 435, Florida Statutes, specifically, resisting arrest

with violence, in violation of Section 843.01, Florida Statutes.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

10. The parties stipulated to the relevant facts and

jointly requested that the following issue be decided in this

case: Whether Chapter 435, Florida Statutes, is applicable to

teachers. It would not be appropriate, however, for the

undersigned to address such a broad issue, and, accordingly, the

issue is rephrased to correspond with the factual circumstances

of this case: Whether the School Board may terminate Mr. Ano's

employment solely on the basis of his having pled guilty to the

crime of resisting an officer with violence, a violation of

Section 843.01, Florida Statutes, which would provide the basis

for terminating an employee pursuant to Sections 435.04(2)(gg)

and 435.06(2), Florida Statutes.

11. Section 435.01, Florida Statutes, defines the

applicability of the employment screening provisions of

Chapter 435, Florida Statutes, as follows: "Whenever a

background screening for employment or a background security

check is required by law for employment, unless otherwise

provided by law, the provisions of this chapter shall apply."

12. The legislature has enacted several statutes as part

of the Florida K-20 Education Code, Chapters 1000-1013, Florida

Statutes, dealing specifically with the manner in which teachers

may be terminated from their employment. Section 1001.42(5),

Florida Statutes, confers on district school boards the power

and responsibility to "designate positions to be filled,

prescribe qualifications for those positions, and provide for

the appointment, compensation, promotion, suspension, and

dismissal of employees, subject to the requirements of chapter

1012 ." (Emphasis added.)

13. It is not clear from the parties' stipulation whether,

at the times relevant to this proceeding, Mr. Ano was employed

under a professional services contract or under a continuing

contract. Section 1012.33, Florida Statutes, covers persons

employed by district school boards under both types of contracts

and provides in pertinent part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

* * *

(4)(a) An employee who had continuing

contract status prior to July 1, 1984, shall

be entitled to retain such contract and all

rights arising therefrom as prescribed by

rules of the State Board of Education

adopted pursuant to s. 231.26, Florida

Statutes (1981), unless the employee

voluntarily relinquishes his or her

continuing contract.

* * *

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office, incompetency, gross

insubordination, willful neglect of duty,

drunkenness, or conviction of a crime

involving moral turpitude, as these terms

are defined by rule of the State Board of

Education. Whenever such charges are made

against any such employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

such employee is discharged, his or her

contract of employment shall be thereby

canceled. Any such decision adverse to the

employee may be appealed by the employee

pursuant to s. 120.68, provided such appeal

is filed within 30 days after the decision

of the district school board.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). The district school board

must notify the employee in writing whenever

charges are made against the employee and

may suspend such person without pay; but, if

the charges are not sustained, the employee

shall be immediately reinstated, and his or

her back salary shall be paid. If the

employee wishes to contest the charges, the

employee must, within 15 days after receipt

of the written notice, submit a written

request for a hearing. . . .

(Emphasis added.)

14. "It is a well-known principle of statutory

construction that 'a specific statute covering a particular

subject area controls over a statute covering the same and other

subjects in more general terms.'" Engineering Contractors Ass'n

of S. Florida, Inc. v. Broward County , 789 So. 2d 445, 451

(Fla. 4th DCA 2001); see also G.E.L. Corp. v. Department of

Environmental Protection , 29 Fla. L. Weekly D1352 (Fla. 5th DCA

June 4, 2004), and cases cited therein. In McKendry v. State ,

641 So. 2d 45, 46 (Fla. 1994), the court stated:

We begin our analysis . . . by applying

accepted rules of statutory construction to

the statutes in question. First, a specific

statute covering a particular subject area

always controls over a statute covering the

same and other subjects in more general

terms. Adams v. Culver , 111 So. 2d 665, 667

(Fla. 1959); State v. Billie , 497 So. 2d

889, 894 (Fla. 2d DCA 1986), review denied,

506 So. 2d 1040 (Fla. 1987). The more

specific statute is considered to be an

exception to the general terms of the more

comprehensive statute. Floyd v. Bentley ,

496 So. 2d 862, 864 (Fla. 2d DCA 1986),

review denied, 504 So. 2d 767 (Fla. 1987).

15. The legislature has included in Section 1012.33(1)(a),

(4)(c), and 6(a), Florida Statutes, the exclusive bases for

terminating teachers' employment during the term of their

contracts, and the provisions of that statute govern the

suspension and termination of Mr. Ano and not Chapter 435,

Florida Statutes, a general statute dealing with "all persons

required by law to be screened pursuant to the provisions of

this chapter." § 435.01, Fla. Stat. 5 Mr. Ano may not,

therefore, be terminated from his employment with the School

Board solely because he pled guilty to resisting an officer with

violence. 6

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Palm Beach

County, Florida, enter a final order:

(1) Finding that Mr. Ano's plea of guilty to a violation

of Section 843.01(2)(gg), Florida Statutes, does not provide a

legally-sufficient basis for terminating Mr. Ano's employment

with the School Board of Palm Beach County, Florida;

(2) Reinstating Mr. Ano's employment with the School Board

of Palm Beach County, Florida; and

(3) Paying Mr. Ano his back salary from the date of his

suspension without pay.

DONE AND ENTERED this 1st day of July, 2004, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2004.

ENDNOTES

1 / All references to the Florida Statutes herein are to the 2002

edition unless otherwise specified.

2 / These issues have been re-stated in both the Statement of the

Issues and in the Conclusions of Law below.

3 / This report is included as Exhibit 1 to the parties Agreed

Motion to Request Submission of Briefs in Lieu of Hearing.

4 / School Board Policy 6Gx50-3.13 requires employees to

self-report in writing with the appropriate

documentation any arrests and/or criminal

charges, including criminal traffic

violations, to the employee's immediate

supervisor/designee within forty-eight

(48) hours of said arrest and/or criminal

charges. In addition, all district

employees shall self-report in writing any

conviction, finding of guilt, withholding of

adjudication, commitment to a pretrial

diversion program, or entering a plea of

guilty, guilty in your best interest, or

Nolo Contendere for any criminal offense

other than a minor traffic violation within

forty-eight (48) hours after the final

judgment has been entered.

5 / Although not included herein as a conclusion of law, it is

noted that teachers may not be "persons required by law to be

screened pursuant to the provisions of" Chapter 435, Florida

Statutes. A keyword search on Westlaw produced several lists

containing numerous statutes specifically requiring that

prospective and current employees undergo either Level 1 or

Level 2 employment screening pursuant to Chapter 435, Florida

Statutes. See e.g. , Sections 394.4572 (mental health

personnel); 394.875 (licensure of crisis stabilization units);

395.0055 (licensure of hospitals, ambulatory surgical centers,

or mobile surgical centers); 397.403 (licensure of substance

abuse service providers); 400.071 (licensure of nursing homes);

400.215 (employees of nursing homes); 402.305 (licensure of

child care facilities); 744.1085 (registration of professional

guardians); and 985.407 (personnel in juvenile delinquency

facilities, services, and programs), Florida Statutes.

The only statute requiring teachers to undergo employment

screening pursuant to Chapter 435, Florida Statutes, is

Section 1002.36 Florida Statutes, which deals with employees of

the Florida School for the Deaf and Blind and provides in

pertinent part as follows:

(7) PERSONNEL SCREENING.--

(a) The Board of Trustees of the Florida

School for the Deaf and the Blind shall,

because of the special trust or

responsibility of employees of the school,

require all employees and applicants for

employment to undergo personnel screening

and security background investigations as

provided in chapter 435, using the level 2

standards for screening set forth in that

chapter, as a condition of employment and

continued employment. The cost of a

personnel screening and security background

investigation for an employee of the school

shall be paid by the school. The cost of

such a screening and investigation for an

applicant for employment may be paid by the

school.

(b) As a prerequisite for initial and

continuing employment at the Florida School

for the Deaf and the Blind:

1. The applicant or employee shall submit

to the Florida School for the Deaf and the

Blind a complete set of fingerprints taken

by an authorized law enforcement agency or

an employee of the Florida School for the

Deaf and the Blind who is trained to take

fingerprints. The Florida School for the

Deaf and the Blind shall submit the

fingerprints to the Department of Law

Enforcement for state processing and the

Federal Bureau of Investigation for federal

processing.

2.a. The applicant or employee shall attest

to the minimum standards for good moral

character as contained in chapter 435, using

the level 2 standards set forth in that

chapter under penalty of perjury.

b. New personnel shall be on a probationary

status pending a determination of compliance

with such minimum standards for good moral

character. This paragraph is in addition to

any probationary status provided for by

Florida law or Florida School for the Deaf

and the Blind rules or collective bargaining

contracts.

3. The Florida School for the Deaf and the

Blind shall review the record of the

applicant or employee with respect to the

crimes contained in s. 435.04 and shall

notify the applicant or employee of its

findings. When disposition information is

missing on a criminal record, it shall be

the responsibility of the applicant or

employee, upon request of the Florida School

for the Deaf and the Blind, to obtain and

supply within 30 days the missing

disposition information to the Florida

School for the Deaf and the Blind. Failure

to supply missing information within 30 days

or to show reasonable efforts to obtain such

information shall result in automatic

disqualification of an applicant and

automatic termination of an employee.

4. After an initial personnel screening and

security background investigation, written

notification shall be given to the affected

employee within a reasonable time prior to

any subsequent screening and investigation.

(c) The Florida School for the Deaf and the

Blind may grant exemptions from

disqualification as provided in s. 435.07.

(d) The Florida School for the Deaf and the

Blind may not use the criminal records,

private investigator findings, or

information reference checks obtained by the

school pursuant to this section for any

purpose other than determining if a person

meets the minimum standards for good moral

character for personnel employed by the

school. The criminal records, private

investigator findings, and information from

reference checks obtained by the Florida

School for the Deaf and the Blind for

determining the moral character of employees

of the school are confidential and exempt

from the provisions of s. 119.07(1) and

s. 24(a), Art. I of the State Constitution.

The legislature could have, but did not, include in

Section 1012.32(2), Florida Statutes, a similar comprehensive

scheme for the employment screening of teachers in the public

school system.

6 / It is noted that, in its Amended Administrative Complaint,

the School Board alleged that it had just cause to terminate

Mr. Ano's employment. This issue has not been addressed herein

due to the stipulation of the parties as to the issues remaining

for resolution in this case. In addition, it is noted that,

although School Board Policy 3.12 was not included as a basis

for Mr. Ano's termination in the School Board's Amended Petition

of Suspension without Pay and Dismissal from Employment, the

parties cited the policy in the Agreed Motion to Request

Submission of Briefs in Lieu of Hearing. School Board

Policy 3.12 provides in pertinent part:

3. A prospective or current employee may be

disqualified or may be terminated from

continued employment if the prospective or

current employee has been convicted of a

crime classified as a felony or first degree

misdemeanor directly related to the position

of employment sought or convicted of a crime

involving moral turpitude or any of the

offenses enumerated in Chapter 435, Florida

Statutes.

The parties included in their motion a footnote to the citation

to this policy, in which they stated that "School Board Policy

3.12 is not a substantive policy and did not form a basis for

discipline in the circumstances presently before the court."

Accordingly, because the issue of whether Mr. Ano could be

terminated pursuant to School Board Policy 3.12 has not been

presented in this case, it is not addressed herein.

COPIES FURNISHED:

Catherine Chamblee, Esquire

Chamblee, Johnson & Haynes, P.A.

215 Verne Street, Suite D

Tampa, Florida 33606

Vicki L. Evans, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Honorable Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 Gaines Street

Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel

Department of Education

325 Gaines Street, Room 1244

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.