07-003721 Polk County School Board vs. Jesse Phillip Bradley Status: Closed Recommended Order on Thursday, December 6, 2007.

Summary: Just cause exists to suspend teachers who intentionally violate written policy prohibiting firearms on campus, but absence of aggravating factors precludes termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 07 - 3721

)

JESSE PHILLIP BRADLEY , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing in this proceeding on October 11, 2007, in Bartow,

Florida, on behalf of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap LLP

245 South Central Avenue

Post Office Drawer 30

Bartow, Florida 33831

For Respondent: Kevin P. Cox, Esquire

1125 East Main Street, Suite 2

Bartow, F lorida 33830

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent

threatened to shoot students with a firearm located in his

vehicle that he parked on campus, and whether the acts proved

during the administrative hearing constitut e just cause to

terminate Respondent's professional services contract pursuant

to Subsection 1012.33(6)a), Florida Statutes (2006). 1

PRELIMINARY STATEMENT

By letter dated May 14, 2007, the Superintendent of the

Polk County Public Schools notified Responden t of proposed

agency action to terminate Respondent's employment on June 12,

2007. Respondent requested an administrative hearing by letter

dated May 21, 2007. On June 12, 2007, Petitioner adopted the

recommendation of the Superintendent to terminate Res pondent's

employment, and, on August 16, 2007, Petitioner referred the

matter to DOAH to conduct the administrative hearing.

At the hearing, Petitioner presented the testimony of five

witnesses and submitted four exhibits for admission into

evidence. Re spondent testified and called seven witnesses and

submitted no exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the one - volume Transcript of

the hearing filed with DOAH on Oc tober 25, 2007. Petitioner

timely filed its Proposed Recommended Order (PRO) on November 5,

2007. Respondent filed his PRO on November 7, 2007.

FINDINGS OF FACT

1. Respondent has taught diesel mechanics at the Ridge

Vocational Technical Center (Ridge Ce nter) in Polk County,

Florida, for over 12 years. Respondent teaches diesel mechanics

pursuant to a professional services contract.

2. By letter dated May 14, 2007, the Superintendent of the

Polk County Public Schools notified Respondent that she was

sus pending Respondent from his employment with pay. The letter

also states that, on June 12, 2007, the Superintendent would

recommend to Petitioner that Petitioner terminate the

professional service contract of Respondent. On June 12, 2007,

Petitioner follo wed the recommendation of the Superintendent.

3. The letter dated May 14, 2007, is the charging document

in this proceeding. The letter notifies Respondent of the

alleged grounds for termination of his employment and provides

Respondent with a point of entry into the administrative

process. In relevant part, the stated grounds for termination

of employment are:

On May 11, 2007, an investigation revealed

that you had a 9mm pistol in the front seat

compartment of your personal vehicle. When

asked if yo u understood that it was against

School Board policy to bring a weapon on

campus, you indicated that you were aware of

the policy. You were arrested by the Winter

Haven Police Department for having a weapon

on campus. The arresting officer also

indicated that further charges may be made

against you regarding threatening comments

that you allegedly made to the students.

* * *

Your conduct in this situation is aggravated

by the fact that you made reference to the

weapon and threatened to use it ag ainst

students and by the fact that you admitted

you were aware that bringing the weapon onto

campus was a violation of both state law and

Board policy. This was a knowing,

intentional act on your part involving

students and constitutes just cause for

ter mination.

4. It is undisputed that Respondent possessed a firearm on

the Pine Ridge campus on Friday, May 11, 2007. On the morning

of May 11, 2007, Respondent placed a 9mm pistol into its holster

and put both items into the center console of his truck.

Respondent drove the truck to work and parked the truck in the

Ridge Center parking lot. The truck was parked approximately

25 feet from the school. The pistol was securely encased and

not readily accessible for immediate use within the meaning of

Subs ections 790.001(16) and (17).

5. The possession of a firearm on the Ridge Center campus

violated the written policy of Petitioner. In relevant part,

the policy provides:

It is the expressed policy of the Polk

County School Board that no weapons/firearm s

shall be taken upon school property by any

one other than law enforcement

personnel. . . .

Petitioner's Exhibits 8 and 10.

6. The charging document notifies Respondent of several

aggravating factors that are alleged as grounds to support a

finding of just cause to terminate Respondent's employment. The

document alleges that the violation of the written school policy

was a knowing and intentional act; that Respondent made

reference to the weapon and threatened to use it against

students; and that th e possession of the firearm by Respondent

was unlawful.

7. The violation of the written school policy was knowing

and intentional. Respondent knew of the written school policy

prohibiting the possession of firearms on campus but brought the

firearm to sc hool in his truck to take with him that night to a

weekend job discussed in subsequent findings.

8. Respondent did not make reference to the firearm and

threaten to use it against students. The accusing student

complains that Respondent referred to the f irearm and threatened

to shoot students on May 10, 2007. However, there is no

evidence that Respondent possessed a firearm on campus on

May 10, 2007. The weight of the evidence does not support the

testimony of the accusing student that Respondent threa tened to

retrieve his firearm from his truck and shoot Pine Ridge

students on May 10, 2007.

9. On the afternoon of May 10, 2007, Respondent was

grading papers in his classroom at the Ridge Center. Several

male students outside of the classroom were using long broom

handles to "sword - fight."

10. Respondent readily admits that he yelled words from

his classroom on May 10, 2007, to the effect that, "I'm going to

shoot all of you guys one of these days if you don't straighten

up." Respondent did not make re ference on May 10, 2007, to the

firearm he possessed on campus on May 11, 2007. The admitted

statement was not a threat to shoot students and did not expose

any student to conditions harmful to his or her physical or

mental health. Respondent continued g rading papers, and

Respondent and the students remained on campus until shortly

after the school day ended at 2:00 p.m.

11. One of the students playing in the hall on May 10,

2007, testified that Respondent said, "The next one of y'all

that breaks a broomstick, I'm going to go to my truck, I'm going

to get my nine and come back and shoot you." The student

further testified that he asked Respondent, "You're going to

shoot them?" and that Respondent replied, "Yeah, I'm going to

shoot them."

12. The te stimony of the accusing student is not credible

and persuasive and conflicts with material facts in the record.

Respondent did not posses s a firearm in his truck on May 10,

2007, when he allegedly threatened to fetch the firearm. A

finding based on the t estimony of the accusing student would

require the trier of fact to ignore the weight of the other

evidence as well as the candor, forthrightness, and cooperative

nature of the testimony of Respondent.

13. The accusing student is an older high school stud ent

with a history of discipline problems at the Ridge Center. The

accusing student did not return to the Ridge Center after

May 10, 2007, and, on the date of the hearing, was no longer

pursuing a trade or degree in any school. He is hoping to enter

a m ilitary academy within five months of the date of the

hearing.

14. Testimony from the accusing student that he did not

return to the Ridge Center for fear of Respondent is not

persuasive. The accusing student was a problem for other

teachers and administ rative staff at Pine Ridge, and the

testimony of teachers and administrators shows they preferred

that the student had never attended the Ridge Center.

15. Petitioner did not prove that possession of the

firearm on campus on May 11, 2007, was unlawful. R ather, the

evidence and relevant legal authority discussed in the

Conclusions of Law shows that the firearm was in Respondent's

truck on Friday, May 11, 2007, for a lawful purpose pursuant to

Subsection 790.115(2)(a)3.

16. Respondent was scheduled to work that weekend on a

truck delivery route that would take him into Liberty City,

Florida, between midnight and 5:00 a.m. Respondent drove

directly from the Ridge Center to his weekend job and took the

firearm on his truck delivery job for self defense.

17. Local law enforcement officials arrested Respondent

for allegedly committing a third degree felony in violation of

Section 790.115, Florida Statute s (2006). 2 At the conclusion of

the criminal investigation, not only were additional charges for

threats ag ainst students not filed against Respondent, as

alleged in the charging document in this proceeding, but the

state attorney refused to prosecute Respondent on June 12, 2007.

It is unclear from the record whether Petitioner knew of the

decision of the stat e attorney on June 12, 2007, when Petitioner

terminated Respondent's employment, in relevant part, for the

unlawful possession of a firearm on May 11, 2007, and alleged

threats against students.

18. The criminal investigation began on May 10, 2007, when

local law enforcement officials received an anonymous telephone

complaint sometime concerning the alleged threat by Respondent.

On May 11, 2007, an officer from the Winter Haven Police

Department (Department) visited the Ridge Center to investigate

the co mplaint against Respondent.

19. The police officer questioned Respondent on May 11,

2007, and Respondent acknowledged that he had a pistol holstered

and securely encased in his truck in the campus parking lot.

Respondent took the officer to the truck, directed the officer

to the location of the firearm in the center console, and

otherwise fully cooperated in the investigation.

20. The police officer arrested Respondent for possessing

a firearm on a school campus in violation of Section 790.115.

The De partment conducted a full investigation, Respondent fully

cooperated in the investigation, and the state attorney

dismissed the charges against Respondent on June 12, 2007.

Relevant legal authority is discussed further in the Conclusions

of Law.

21. At t he hearing, Petitioner submitted evidence intended

to prove the presence of several aggravating factors that the

charging document does not allege. These un - alleged aggravating

factors are that Respondent previously possessed an unloaded

hunting rifle on campus in Respondent's truck; violation by

Respondent had impaired Respondent's effectiveness as a

educator; and Respondent failed to protect students from

conditions harmful to their physical or mental health.

22. The charging document does not provide R espondent with

notice that Petitioner intended to submit evidence at the

hearing of the un - alleged aggravating factors. However,

Respondent did not object to questions asked during the hearing

pertaining to the un - alleged aggravating factors. The ALJ

adm itted the relevant evidence and consider ed the evidence in

this proceeding.

23. The evidence supports a finding of only one unalleged

aggravating factor in this proceeding. Sometime before May 11,

2007, Respondent possessed an unloaded hunting rifle in t he back

of his truck while the truck was parked on the campus of the

Ridge Center.

24. The events of May 10 and 11, 2007, and the prior

possession of a hunting rifle did not expose any student to

conditions harmful to his or her physical or mental heal th and

did not seriously impair Respondent's effectiveness as a

teacher. The testimon ies of the director of the Ridge Center

and a fellow teacher show that Respondent has consistently been

an effective and competent teacher at the Ridge Center.

Responden t has no prior discipline in his employment history.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. § 120.57(1), Fla. Stat. (2007). DOAH

provided the parties with adequate notice of the administr ative

hearing.

26. The termination of employment that occurred on June 12,

2007, is proposed agency action, rather than final agency action

taken previously that DOAH reviews as would an appellate court.

The purpose of a proceeding conducted pursuant to Subsection

120.57(1) is to formulate final agency action , rather than to

review agency action previously taken. McDonald v. Department of

Banking and Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

27. The administrative hearing is a de novo proceeding in

which either party may submit relevant and material evidence

through the date of the hearing. The evidence is not limited to

that evidence available to Petitioner when Petitioner proposed the

termination of Respondent's professional service contract. Id.

28. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that just cause exists to

terminate Respondent's employment for the reasons stated in the

charging document and that termination is an appropriate penalty.

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

DCA 1996); Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3d DCA 1990).

29. Petitioner proved two of the allegations stated in the

charging document. Petitioner showed by a pr eponderance of

evidence that the possession of a firearm on campus on May 11,

2007, violated the written policy of Petitioner and that the

violation was intentional. Petitioner also proved the unalleged

aggravating factor that Respondent possessed an unlo aded hunting

rifle on campus in his truck sometime prior to May 11, 2007.

Petitioner did not prove the remaining grounds for the proposed

termination of employment, including those stated in the charging

document and the unalleged aggravating factors.

30. Petitioner cites three cases for the proposition that

the trier of fact may draw an inference of impaired effectiveness

from the nature of the offense. Purvis v. Marion County School

Board , 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highland

County S chool Board , 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v.

School Board of Marion County , 666 So. 2d 175 (Fla. 5th DCA 1996).

Unlike the cited cases, this proceeding includes direct evidence

of the continued effectiveness of Respondent as an educator. A n

inference authorized in the cited cases would require the fact -

finder to ignore the direct evidence of unimpaired effectiveness.

31. Petitioner did not prove that the possession of a

firearm on May 11, 2007, or the earlier possession of a hunting

rifle were unlawful. Rather, the evidence an d relevant legal

authority show that the possession of a firearm on campus was

lawful.

32. Subsection 790.115(1), in relevant part, prohibits a

person from exhibiting a firearm on school property in a rude,

careles s, angry, or threatening manner. It is undisputed that

Respondent did not exhibit, in any manner, the firearm located in

his truck on May 11, 2007. If Respondent exhibited a hunting

rifle located in his truck prior to May 10, 2007, there is no

evidence t hat Respondent did so in a rude, careless, angry or

threatening manner.

33. Subsection 790.115(2)(a) generally prohibits the

possession of a firearm on any school property subject to certain

exceptions. However, Subsection 790.115(2)(a)3. authorizes a

pe rson to carry a firearm in a vehicle on school property (the

vehicle exception) , but also authorizes school districts to:

. . . adopt written and published policies

that waive the exception . . . for purposes

of student and campus parking privileges.

34. Petitioner argues that the possession of a firearm on

campus by Respondent was unlawful because Petitioner adopted a

written policy waiving the statutory vehicle exception.

Petitioner's proposed statutory interpretation is not supported by

relevant judi cial decisions.

35. Petitioner's written policy generally prohibits the

possession of firearms on school campuses but omits an express

waiver of the vehicle exception. Such a written policy does not

waive the vehicle exception. State of Florida v. Ragla nd , 789 So.

2d 530, 534 (Fla. 5th DCA 2001).

36. In Ragland , local police officials arrested a student

for possessing a 30.6 Browning Bolt Action Rifle and ammunition in

his vehicle that he parked on the campus of Brevard County

Community College (BCC). BCC had in place two written policies

intended to waive the vehicle exception in Subsection

790.115(2)(a)3. The two policies provided inter alia :

3. WEAPONS. Possession, display or use of

any firearm . . . is against the Code of

Conduct and Florida La w.

* * *

No students . . . may have weapons in their

possession at any time on college property.

Ragland , 789 So. 2d at 533.

37. The trial court granted the student's motion to dismiss

the criminal charges, in relevant part, because BCC had n ot

adopted written policies waiving the statutory vehicle exception.

The state appealed, and the appellate court upheld the trial

court's dismissal of the charges against the student. The

appellate court explained :

The BCC publications do not expressly w aive

the vehicle exception to the proscription of

firearms . . . on campuses. Section 790.115

generally proscribes weapons on school

grounds, as does the published policy [of

BCC]. The statute excepts from its

proscription weapons that are in a vehicle

a nd securely encased. The publications do

not deviate from the statute in the

proscriptions they make. Although the

publications do not affirmatively provide for

the vehicle exception, they do not give

notice of an intent on the part of BCC (if

there inde ed was one) to swallow the

exception. Instead, the publications invoke

Florida law, and therefore affirmatively

suggest that Florida law has not been waived.

We think that the failure to state expressly

that BCC waive the exception means that there

was n o waiver.

Ragland , 789 So. 2d at 533 - 534.

38. The written policy of Petitioner, like that of BCC,

invokes Florida law and does not affirmatively suggest that the

written policy waives the vehicle exception. The written policy

of Petitioner is not suffi cient to waive the statutory vehicle

exception.

39. Although DOAH does not have authority to determine the

constitutionality of a statute, an ALJ in an administrative

hearing generally must construe statutes, rules, and written

policies in a manner that i s consistent with the state and

federal constitutions. Willette v. Air Products and Bassett and

Department of Labor and Employment Security, Division of

Workers' Compensation , 700 So. 2d 397, 399 (Fla. 1st DCA 1997).

Any doubt concerning the proper inter pretation of Petitioner's

written policy must be resolved in a manner that interprets the

statute implemented in a constitutional manner.

40. In Willette , the court rejected an agency's argument

that a validly adopted rule which contradicts a statute is

entitled to enforcement in the absence of a Section 120.56 rule

challenge. As the court explained:

Executive branch rulemaking is authorized in

furtherance of, not in opposition to,

legislative policy. Just as a court cannot

give effect to a statute (or administrative

rule) in a manner repugnant to a

constitutional provision, so a duly

promulgated rule, although "presumptively

valid until invalidated in a section 120.56

rule challenge" [citations omitted], must

give way . . . to any contradictory statute

that applies.

Willette , 700 So. 2d at 399.

41. The decision in Willette is consistent with the

separation of powers act. Fla . Const. , Art. II, § 3. The act

encompasses two prohibitions. First, no branch of government

may encroach upon the powers of a nother. Second, no branch may

delegate to another its constitutionally assigned power. The

second prohibition is the non - delegation doctrine. Chiles v.

Children A, B, C, D, E, and F , 589 So. 2d 260, 264 - 265 (Fla.

1991).

42. The non - delegation doctrine prohibits the Legislature

from delegating legislative authority to another branch of

government, including Petitioner. The written policy of

Petitioner must be interpreted in a manner that is consistent with

the non - delegation doctrine because Petitioner may not implement

by written policy that is either non - rule policy or an

unpromulgated rule that which the non - delegation doctrine

prohibits an agency from implementing by rule. Compare Willette ,

700 So. 2d at 399 (rulemaking is authorized in furtherance of, not

in opposition to, legislative policy).

43. The constitutional infirmity of Petitioner's assertion

that its written policy waives the statutory vehicle exception is

illustrated in the concurring opinion in Ragland . As the opinion

explains:

The o bvious problem with the statue herein is

that the Legislature set a policy directly

contrary to that which it authorized the

school boards, in their unbridled discretion

to veto, at least as it relates to parking on

campus. The Legislature made it legal t o

have a securely encased firearm in a vehicle

even on a campus. But, if the State is

correct, it then gave the school boards the

authority to amend the statute to make what

the Legislature had declared legal a third

degree felony. If the Legislature did so, it

has permitted the various school boards to

either approve or disapprove the

Legislature's policy concerning securely

encased firearms in vehicles on campus

without setting "any definite limitations."

Therefore, it is the Brevard Community

College, in its unbridled discretion, which

created the third degree felony attempted to

be enforced in this case. And it did so

under its authority to regulate parking

privileges on its campus.

And, if the State is correct, the

Legislature, by this provision, d id not

merely permit various school authorities to

"opt out" of the policy permitting encased

firearms on campus, it permitted such school

authorities to create a felony where none

existed before. Further, it has authorized

the various school authorities to enact

differing policies making an act legal on one

campus to be a third degree felony on another

even within the same geographic area. To

make such a delegation constitutional, the

Legislature must give some guidance to the

school authorities in setti ng a policy which,

in effect, creates a felony. There should be

some rational basis spelled out by the

Legislature (other than mere disagreement

with the legislative policy) for a school

district to elect not to accept the

Legislature's policy relating to encased

firearms on campus but instead make such an

act a third degree felony.

Ragland , 789 So. 2d at 535.

44. The lawfulness of the possession of a firearm on the

Ridge Center campus recognizes Respondent's constitutional right

to bear arms. § 790. 25(4), Fla. Stat. (2006). However, the

lawful exercise of a constitutional right by Respondent does not

preclude adverse employment action by a public employer to protect

a compelling governmental interest. Cf. Hitt v. North Broward

Hospital District , 38 7 So. 2d 482 (Fla. 4th DCA 1980), citing

Perry v. Sindermann , 408 U.S. 593 (1972)(public employer may take

adverse employment action based on employee's exercise of

constitutional rights if the employer shows that the governmental

interest asserted to supp ort such impingement is compelling).

45. Petitioner has a compelling governmental interest in the

protection of students and school personnel from the physical harm

that can be caused by firearms. That governmental interest is

sufficient to discipline Respondent for the lawful exercise of his

constitutional right to bear arms.

46. The evidence in this proceeding supports a finding of

just cause for taking some adverse employment action against

Respondent. On balance, however, the evidence does not s upport a

finding that just cause exists to terminate Respondent's

professional service contract. When all of the intentional

violation of Petitioner's written policy on May 11, 2007, and some

previous date is considered with all of the surrounding facts a nd

circumstances in evidence, just cause exists to suspend Respondent

from his employment for 90 days beginning on June 12, 2007, and

ending on September 9, 2007, and reinstating Respondent to his

position and pay grade on September 10, 2007, with back pay and

benefits.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order adopting

the Findings of Fact and Conclusions of Law in this Recommended

Order.

DONE AND ENTERED this 6 th day of December , 2007 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 6 th day of December , 2007 .

ENDNOTES

1/ All references to subsections, sections, and chapters are to

Florida St atutes (2006) unless otherwise stated.

2/ The Arrest Report charges Respondent with a violation of

Section 790.115 and does not distinguish between subsections.

COPIES FURNISHED :

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central A venue

Post Office Drawer 30

Bartow, Florida 33831

Kevin P. Cox, Esquire

1125 East Main Street, Suite 2

Bartow, Florida 33830

Deborah K. Kearney , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Jeanine Blomberg

Interim Co mmissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Gail McKinzie , Superintendent

Polk County School Board

Post Office Box 391

Bartow , Florida 33831 - 0391

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.