15-000487 Lee County School Board vs. Adrian Allen Status: Closed Recommended Order on Tuesday, August 25, 2015.

Summary: Custodial employee committed felony child abuse.This is just cause to terminate employment. Conviction not required. Policy that board have high standards & expectations for employees, including dedication to high ethical standards was only aspirational.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 0487

ADRIAN ALLEN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton , II, of the

Division of Administrative Hearings (DOAH) heard this case in

Fort Myers, Florida, on June 2, 2015.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

Does Petitioner, Lee County School Board ( School Board),

have just cause to terminate the employment o f Respondent, Adrian

Allen ?

PRELIMINARY STATEMENT

By petition dated December 5, 2014, the superintendent for

the Lee County School District (School District) sought

termination of Mr. Allen ' s employment. On January 28, 2015, the

School Board referred this matter to DOAH for conduct of a final

hearing. The undersigned set the hearing for March 24, 2015.

One unopposed motion for continuance was granted, and the hearing

was scheduled for June 2, 2015.

At the final hearing, the School Board presented testim ony

from Deputy Kevin Armstrong, Detective Erik Hurd, and Andrew

Brown. School Board E xhibits 1 through 3, 5, 6B, and

7 through 1 2 were received into evidence. Mr. Allen presented

no testimony. Mr. Allen ' s E xhibits 1 through 4 were admitted

into evidenc e.

The T ranscript of the proceeding was filed on June 23, 2015.

The parties obtained an extension of time for filing proposed

recommended orders. The parties ' proposed recommended orders

were timely filed and considered in preparation of this

Recommende d Order .

FINDING S OF FACT

1. The School Board owns and operates the public schools in

Lee County, Florida. It is responsible for hiring, terminating,

and overseeing all employees in the S chool D istrict.

2. At all times material to this case, the School Board

employed Mr. Allen as a custodian at Lehigh Acres Middle School.

He has worked for the School District since April 29, 2010.

3. Mr. Allen is a member of the Support Personnel

Association of Lee County (SPALC) and was a member during all

times rele vant to this matter.

4. On October 15, 2014, the Lee County Sheriff ' s Office

arrested Mr. Allen for one count of child abuse. The alleged

victim is Mr. Allen ' s two - year - old son. Eventually the s tate

a ttorney chose not to prosecute Mr. Allen.

5. On Octo ber 10, 2014, Mr. Allen took the actions that led

to his arrest. The same actions are the cause for his proposed

dismissal.

6. The morning of October 10, 2014, Mr. Allen was caring

for his two - year - old son at home. Mr. Allen was hung over and

irritabl e. He fed his son and watched cartoons with him.

Mr. Allen and his wife were " potty " training the child. Sometime

after lunch, in the early afternoon, the child defecated in his

pull - ups , instead of telling Mr. Allen that he needed to use the

bathroom.

7. Mr. Allen lost his temper. He began " spanking " the

small child. He struck the child at least ten times. Three or

four of the blows were to the child ' s face and not " spanking " as

normally understood. The others were to the child ' s buttocks and

thigh s. The blows bruised the child severely enough that they

were visible four days later.

8. Mr. Allen was immediately remorseful. Because he was

upset and hung over, Mr. Allen called in sick to work , which

started later that afternoon.

9. When Mr. Alle n ' s wife came home, he told her what he had

done , and she observed the bruises. She took photographs of the

bruises and made Mr. Allen leave the house. The photographs were

not offered into evidence. After a few days, Mr. Allen and his

wife talked, and she allowed him to return after he promised to

change his behavior, including drinking and losing his temper.

10. The bruises were discovered on October 14, 2014, when

Mr. Allen left his child with the maternal grandparents. They

called law enforcement. This led to a criminal investigation and

Mr. Allen ' s arrest. During all his conversations with law

enforcement officers , Mr. Allen was honest and remorseful.

11. People outside the family, the school , and law

enforcement became aware of the incident. Mr. Allen and his wife

began receiving critical messages about it.

12. When the School District learned of the charges, it

began an investigation. In interviews with Andrew Brown,

d irector of Professional Standards and Equity, Mr. Allen spoke

truthfully and admitted what he had done.

13. The School District determined that there was probable

cause for disciplinary action. On November 21, 2014, it

suspended Mr. Allen without pay and benefits. The Petition for

Termination and this proceeding followed.

14. Mr. Allen has never denied his actions . He did not

testify about his remorse, the circumstances surrounding the

event, or steps he has taken to prevent similar events .

15. Mr. Allen provided a letter from SalusCare stating that

he was enrolled in the Famil y Intensive Treatment Team. The

letter says the program addresses substance abuse, mental health ,

and other concerns. It said Mr. Allen was making progress in his

treatment plans. The letter is hearsay and cannot be the basis

of a finding of fact. Ther e is no testimony or other non - hearsay

evidence to corroborate it. Consequently , it is not considered.

§ 120.57(1)(c), Fla. Stat. (201 4 ) . 1/

16. Similarly , Mr. Allen provided a Character Witness

Reference form with positive statements about him from nine

people. Its statements , too , are uncorroborated hearsay and will

not be considered. § 120.57(1)(c) , Fla. Stat .

17. Mr. Allen physically abused his small child. He has

provided no evidence to support mitigation of discipline , other

than a stipulated abse nce of discipline during his career with

the School District .

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

School Board Policy 1.16(6)(c); sections 1012.40(2)(c), 120.569,

and 120.57, Florida Statutes (2015) ; and the contract between the

School Board and DOAH .

19. The School Board must prove its charges by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.;

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996). " Preponderance of evidence is defined as evidence ' which

as a whole shows that the fact sought to be proved is more

probable than not. ' State v. Edwards , 536 So. 2d 288, 292 n.3

(Fla. 1st DCA 1988). " Dufour v. State , 69 So. 3d 235, 252 (Fl a.

2011); see also Escambia Cnty. Elec. Light & Power Co. v.

Sutherland , 61 Fla. 167, 193; 55 So. 83, 92 (1911).

20. As a custodian, Respondent is an " educational support

e mployee , " as defined by section 1012.40(1)(a ) . His employment

is governed by the ap plicable collective bargaining agreement.

§ 1012.40(2)(b) , Fla. Stat . For Mr. Allen , the collective

bargaining agreement (CBA) between the Lee County School Board

and SPALC is applicable .

21. Section 1012.27 give s the s uperintendent of s chools for

Lee C ounty authority to recommend to the School Board suspension

or dismissal of an employee.

22. The School Board has the authority to terminate and/or

suspend non - instructional personnel without pay and benefits

pursuant to sections 1012.22(1)(f) and 1012.40( 2)(c ).

23. Section 7.10 of the CBA establishes " just cause " as the

standard for discipline of an employee.

24. The School Board may terminate non - instructional

employees for " reasons stated in the collective bargaining

agreement or in district school board rule s in cases where a

collective bargaining agreement does not exist. "

§ 1012.40(2)(b), Fla. Stat.

25. The School Board c omplaint asserts five charges against

Mr. Allen. The first is that Mr. Allen ' s conduct is misconduct

in office and justifies termin ation under the provisions of

section 1012.33(1)(a). That section applies only to

" instructional staff. " The School Board did not prove that

Mr. Allen was instructional staff. In fact , it proved that he

was not. The School Board failed to prove its fir st charge.

26. The second charge is that Mr. Allen violated School

Board Policy 5.02, Professional Standards, which requires

dedication to high ethical standards. Policy 5.02 provides that

" the School District of Lee County shall establish high standards

and expectations for its professional faculty and staff,

including [a six - item list]. " The second item is " [d] edication

to high ethical standards. " Policy 5.02(2); R. Ex. 7.

27. On its face , the policy directs the School District to

establish high stan dards and does not impose an obligation upon

the employees of the School District. A final order of the

School Board h a s determined that Policy 5.02 sets forth general

aspirational standards or goals and is too vague to put employees

on notice of the stan dard that they must meet. Lee Cnty . Sch.

Bd. v. Rice , Case No. 13 - 1676 (Fla. DOAH Dec . 20, 2013; Lee Cnty .

Sch. Bd. Jan. 28, 2014). Policy 5.02 cannot be the basis for a

finding of misconduct in office.

28. The third charge is that Mr. Allen violated Sch ool

Board Policy 5.03, General Requirements for Appointment and

Employment. Policy 5.03 establishes the School District ' s

general requirements for appointment or employment. The

qualifications include that a " would be " employee " be of good

moral characte r. " Policy 5.03(a); R. Ex. 8. The record is

devoid of evidence, authority, or argument about what constitutes

" good moral character. "

29. What constitutes " good moral character " is a question

of fact to be determined by the trier - of - fact. Palamara v. Dep ' t

of Bus. & Prof ' l Reg . , Div. of Fla. Land Sales, Condos. & Mobile

Homes , 855 So. 2d 706 (Fla. 4th DCA 2003). F lorida

Administrative Code Rule 6A - 5.056(1) applies to actions to

dismiss school personnel for just cause under section 1012.33.

The rule d efines immorality as " conduct that is inconsistent with

the standards of public conscience and good morals. It is

conduct that brings the individual concerned or the education

profession into public disgrace or disrespect and impairs the

individual ' s serv ice in the community. " Physical abuse of a

toddler , let alone a person ' s own child, falls within that

definition. The community was aware of Mr. Allen ' s actions due

to the arrest. Mr. Allen and his wife received text and

Facebook® messages about the chi ld ' s injuries from relatives and

other people who knew them.

30. The School Board proved that due to his own actions ,

Mr. Allen does not meet the requirement of good moral character

for employment . This amounts to misconduct and just cause for

termination .

31. The fourth charge is that Mr. Allen violated School

Board Policy 5.04, Fingerprinting and Background Screening

(R. Ex. 9). Policy 5.04(2)(d) provides that " a current employee

who commits a crime during employment that would disqualify the

employee f rom initial employment the employee may be

recommended. " The preponderance of the evidence persuasively

established that Mr. Allen committed the third - degree felony of

child abuse, regardless of whether he was prosecuted.

§ 827.02(c), Fla. Stat.; Raford v. State , 792 So. 2d 476 (Fla.

4th DCA 2001) (proof that defendant struck eight - month old three

times with a belt leaving welts that were visible the next day

for defecating in his pants supported conviction of a violation

of section 827.02(c) . ) . The poli cy requires proof that the crime

was committed, not conviction of the crime. See Walton v.

Turlington , 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984). 2/

32. The School District ' s fifth charge is that Mr. Allen

violated School Board Policy 5.29, Complaints R ela ting to

Employees (R. Ex. 10). That policy requires that " all employees

exemplify conduct that is lawful and professional. " This policy

establishes " procedures that shall be followed for complaints

relating to employees. " Only sub section (2) of this pol icy

imposes an obligation on an employee to act and provides for

discipline if the employee does not act. That section requires

reporting of serious violations of policies, rules or statutes to

an employee ' s supervisor. It does not apply here. The fifth

charge does not articulate, and the evidence does not prove, an

offense for which Mr. Allen may be disciplined.

33. The School Board proved that Mr. Allen violated School

Board Policies 5.03 and 5.04. The record does not support any

findings about steps Mr. Allen may have taken to e nsure that an

incident like the one of October 10 , 2014, does not happen again.

It also does not support a finding that the School District has

positions Mr. Allen could fill that do not involve contact with

school children. Consequently , these mitigating factors are not

available for consideration. The violations proven justify

termination of Mr. Allen ' s employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order finding just cause to terminate the employment of

Adrian Allen and dismissing him from his position with the Lee

County School District.

DONE AND ENTERED this 25th day of August , 2015 , in

Ta llahassee, Leon County, F lorida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August , 2015 .

ENDNOTE S

1/ Unless otherwise noted, all statutory references are to the

201 4 edition of the Florida Statutes.

2/ " However, we agree that it is a ppellant ' s conduct, not the

criminal charge of conviction nor the records thereof, which

forms the basis of the Administrative Complaint . We are in

accord with appellee ' s contention that the expungement of the

records of the criminal prosecution places ap pellant in the same

position as if he had never been charged with the crime. This

does not mean, of course, that appellant may not be held

responsible for his actions in a non - criminal proceeding, for as

the Commission appropriately observes, it is not ne cessary for a

teacher to be charged with or convicted of a crime in order to be

subject to revocation of his certificate based upon conduct

reflecting gross immorality or ' moral turpitude . '"

COPIES FURNISHED:

Dr. Nancy J. Graham, Superintendent

Lee Coun ty School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

(eServed)

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

N OTICE 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.