17-004220 Escambia County School Board vs. Justin Warren Status: Closed Recommended Order on Friday, December 22, 2017.

Summary: Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 4220

JUSTIN WARREN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 21, 2017, Administrativ e Law Judge Yolonda Y.

Green, of the Division of Administrative Hearings (ÐDivisionÑ),

conducted a duly - noticed final hearing by video teleconference

in Pensacola and Tallahassee, Florida, pursuant to section

120.57(1), Florida Statutes (2017).

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 W est Cervantes Street

Pensacola, Florida 32501 - 3125

For Respondent: Mark S. Levine, Esquire

Levine & Stivers , LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner had just cause to suspend Respondent

without pay pending disposition of felony criminal charges.

PRELIMINARY STATEMENT

By letter dated J une 21, 2017, Dr. Alan Scott, Assistant

Su perintendent of Human Resources of t he School District of

E scambia County ( ÐPetitionerÑ or ÐSchool Board Ñ), issued a

Notice l etter (ÐNoticeÑ) to Jus tin Warren (ÐRespondentÑ or

Mr. WarrenÑ) notifyin g him that Petitioner took action approving

a recommendation to suspend Respondent without pay based on

conduct described in the N otice of Suspension letter. The

Notice of Suspension letter alleged that the conduct at issue

was that Respondent was arreste d for violating section

812.014 (2)(b)1 . , Florida Statutes, a disqualifying offense.

On July 24, 2017, Respondent timely requested a hearing to

dispute PetitionerÓs action ; and on the same date, the School

Board referred this case to the Division for assig nment to an

A dministrative L aw J udge.

On July 25, 2017, this matter was assigned to the

undersigned. The undersigned issued a Notice of Hearing

scheduling this matter for hearing by video teleconference with

locations in Pensacola and Tallahassee, Flor ida, on September

21, 2017.

The hearing commenced as scheduled with both parties

represented by counsel. Petitioner presented the testimony of

the following witnesses: Laura Touch stone , Principal of Pine

Forest High School , and Dr. Alan Scott. Responde nt presented

the testimony of Keith Leona rd , Director of Human Resources .

The parties offered Joint Exhibits 1 through 3, 4a, 4b, and 5.

The undersigned also took o fficial r ecognition of s ection s

812.014(b)1 . , 1012.40(2)(b), 1012.315, 1012.465, and 432.0 2,

Florida Statutes , and School Board Rule 2.04(6), which are

listed on the PartiesÓ Amended Request for Judicial Notice.

The one - volume Transcript was filed with the Division on

October 23, 2017. The parties requested that they be permitted

20 days to f ile their proposed recommended orders (ÐPROsÑ). On

November 6, 2017, Respondent filed a motion requesting

additional time to file PROs, which the undersigned granted. On

November 17 , 2017 , Respondent filed a second motion for

extension of time to file PR Os, which was also granted. The

undersigned entered an Order extending the time to file PROs to

November 20, 2017. The parties timely filed PROs, which have

been considered in preparation of this Recommended Order (ÐROÑ).

In addition , a pre - hearing stip ulation was filed by the parties

stipulating to certain facts and those facts are incorporated

into this RO, to the extent relevant.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (2016), unless otherwise noted.

FINDING S OF FACT

The stipulations of the parties in the pre - hearing

stipulation , the test imony presented, and the evidence received

at the final hearing support the following F indings of F act:

1. Petitioner is the constitutional entity authorized to

operate, control, and supervise the system of public schools in

Escambia County, Florida. Art . IX, § 4(b), Fla . Const . ;

§ 1001.32, Fla. Stat. The School Board has the statutory

responsibility to prescribe qualifications for positions of

employment and for the suspension and dismissal of employees

subject to the requireme nts of c hapter 1012.

2. At all times relevant to this proceeding, Respondent is

a noninstructional support employee, who has been employed as a

Custodial Worker I by the School Board since October 13, 2014.

Mr. Warren worked 40 hours a week at Pine Forest High School.

Mr. Warre nÓs position with the S chool B oard is annual, rather

than based on the academic school year calendar.

3. During the regular school year , students are required

to be on campus from 8:30 a.m. to 3:30 p.m. After the school

day , there are students who remai n at the school for various

activities with clubs and organizations. While students are

present , custodial workers complete their duties and work

assignments throughout the school. On a regular school day

students may be present at the school for clubs a nd

organizations until as late as 9:00 p.m.

4. Respondent works the 2:00 p.m. to 10:30 p . m . shift and

would be present when students are present.

5. The background regarding RespondentÓs arrest arise s

from a dispute where it was alleged that he forged a quit claim

deed , transferring property fro m his uncle to himself. On

May 9, 2017, Respondent was arrested. Thereafter, an

information was filed against Respondent by the State AttorneyÓs

Office alleging that he knowingly obtained or endeavored to

obtain certain property of another value d at $20,000.00 or more ,

but less than $100,000.00, in violation of section 812.014(1)(a)

and (1) (b) , and ( 2)(b) 1. , a second degree felony.

6. At the time of the final hearing, RespondentÓs criminal

case was pending fina l disposition.

7. On May 18, 2017, Superintendent of the School Board ,

Malcolm Thomas, provided written notice to Respondent that he

was suspended Ðwith pay effective immediately . . . pending the

outcome of an a rrest for §812.014.2b1 [sic] , F.S., a

disqu alifying offense.Ñ The SuperintendentÓs letter did not

provide authority for the SuperintendentÓs action. The

Superintendent also cited no authority for his position that the

alleged offense was a Ðdisqualifying offense.Ñ

8. Also , on May 18, 2017, the S uperintendent notified

Respondent of his intent to recommend to the School Board that

Mr. Warren be placed on suspension without pay beginning June

21, 2017. In his request to the School Board, the

Superintendent stated that his recommendation was Ðbased on

conduct as more specifically identified in the notice letter to

the employee.Ñ Similar to the notice regarding the intended

recommendation, the Superintendent cited no authority for his

recommendation, nor his position that the alleged offense was a

Ðd isqualifying offense.Ñ

9. By letter dated June 21, 2017, Dr. Scott advised

Respondent that the School Board voted to accept the

SuperintendentÓs recommendation placing him on suspension

without pay , effective June 21, 2017. As cause for Mr. WarrenÓs

sus pension without pay, Dr. ScottÓs letter stated that it is

Ðbased on conduct as more specifically identified in the

[SuperintendentÓs] notice letter to the employee.Ñ Dr. ScottÓs

letter did not use the term Ðdisqualifying offense,Ñ nor did it

cite any auth ority for the School BoardÓs action.

10. Respondent had no history of disciplinary action

during his employment by the School Board . In addition,

Ms. Touchstone testified that Respondent Ðhas been a good

employee for us.Ñ

CONCLUSIONS OF LAW

A. Jurisdi ction

11. 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 1 20.57(1),

Florida Statutes (2016 ).

B. Standards

12. Section 1012.22(1) provid es, in part, that a district

school board shall Ð[d]esignate positions to be filled,

prescribe qualifications for those positions, and provide for

the appointment, compensation, promotion, suspension, and

dismissal of employees . . . , subject to the requi rements of

[chapter 1012].Ñ

13. The School Board has the authority to suspend

noninstructiona l employees pursuant to section 1012.27(5).

14. Respondent is a noninstructional employee of the

School Board.

15. Section 1012.32 provides the requirement for

eligibility for a person seeking employment in the school

system, in relevant part:

(1) To be eligible for appointment in any

position in any district school system, a

person must be of good moral character; must

have attained the age of 18 years, if he or

she is to be employed in an instructional

capacity; must not be ineligible for such

em ployment under s. 1012.315. . . .

(2)(a) Instructional and noninstructional

personnel who are hired or contracted to

fill positions that require direct contact

with students in any district school system

or university lab school must, upon

employment or e ngagement to provide

services, undergo background screening as

required under s. 1012.465 or s. 1012.56,

whichever is applicable.

16. Section 1012.465 provides, in relevant part:

(1) Except as provided in s. 1012.467 or

s. 1012.468, noninstructional sc hool

district employees or contractual personnel

who are permitted access on school grounds

when students are present, who have direct

contact with students or who have access to

or control of school funds must meet level 2

screening requirements as descri bed in

s. 1012.32. Contractual personnel shall

include any vendor, individual, or entity

under contract with a school or the school

board.

* * *

(3) If it is found that a person who is

employed or under contract in a capacity

described in subsection (1) does not meet

the level 2 requirements, the person shall

be immediately suspended from working in

that capacity and shall remain suspended

until final resolution of any appeals.

17. Section 435.04 addresses level 2 screening standards

and provides, in relevant part:

(1)(a) All employees required by law to be

screened pursuant to this section must

undergo security background investigations

as a condi tion of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

* * *

( 2) The security background investigations

under this section must ensure that no

persons subject to the provisions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entere d a plea of nolo contendere or

guilty to, or have been adjudicated

delinquent and the record has not been

sealed or expunged for, any offense

prohibited under any of the following

provisions of state law or similar law of

another jurisdiction:

* * *

(cc) Chapter 812, relating to theft,

robbery, and related crimes, if the offense

is a felony.

C. The Burden and Standard of Proof

18. Petitioner seeks to suspend without pay Respondent's

employment as a noninstructional employee, which does not

inv olve the loss of a license or certification. Thus,

Petitioner has the burden of proving the allegations in its

N otice of recommendation of termination by a preponderance of

the evidence. Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So. 3d

351, 355 (Fla. 2d D CA 2009); Cisneros v. Sch. Bd. of Dade Cnty. ,

990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch.

Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo

v. Sch. Bd. of Dad e Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

19. The preponderance of the evidence standard Ðis defined

as Òthe greater weight of the evidence,Ó Black's Law Dictionary

1201 (7th ed. 1999), or evidence that Òmore likely than notÓ

tends to prove a certa in proposition.Ñ Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000). See also Haines v. DepÓt of Child.

& Fams. , 983 So. 2d 602, 606 (Fla. 5th DCA 2008).

20. The allegations of fact set forth in the charging

document are the facts upon which this proceeding is predicated.

Once the School Board has delineated the offenses alleged to

justify suspension without pay in its N otice of recommendation

of suspension, those are the only grounds upon which suspension

may be predicated. Trevisani v. DepÓt of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005). See also Klein v. Dep't of Bus.

& Prof'l Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993);

Cottrill v. DepÓt of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). Due process prohibits the School Board f rom disciplining

a noninstructional employee based on matters not specifically

alleged in the N otice of recommendation of suspension. See

Pilla v. Sch. Bd. of Dade Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d

DCA 1995); Texton v. Hancock , 359 So. 2d 895, 897 n.2 (Fla. 1st

DCA 1978); see also Sternberg v. Dep't of Prof'l Reg. , 465 So.

2d 1324, 1325 (Fla. 1st DCA 1985) ( " For the hearing officer and

the Board to have then found Dr. Sternberg guilty of an offense

with which he was not charged was to deny him due proc ess. " ).

21. The notice of recommendation of suspension without pay

alleged that Respondent was Ðarrested for a disqualifying

offense.Ñ Thus, the scope of this proceeding is properly

restricted to those matters as charged by Petitioner. M.H. v.

Dep Ót of Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA

2008).

22. School Board Policy 2.04(6) provides guidelines for

disqualifying applicants from employment. While this policy

incorporates the disqualifying offenses from both sections

435.04(2) and 1012.315, the incorporated sections maintain

vastly different definitions of Ðdisquali fying offense.Ñ

Moreover, the S chool B oard policy requires that a ÐconvictionÑ

of an offense listed in section 435.04 or 1012.315 would

disqualify employment.

23. Under section 435.04, a person may be disqualified if

he has been arrested for and is awaiting final disposition of,

has been found guilty of, regardless of adjudication, or entered

a plea of nolo contendere or guilty to, or has been adjudicated

delinquen t and the record has not been sealed or expunged for,

any offense prohibited under any of the enumerated provisions of

state law or similar law of another jurisdiction.

24. Under section 1012.315, instructional personnel and

school administrators, as defi ned in section 1012.01 , are

ineligible for employment in any position that requires direct

contact with students in a district school system, if the

instructional personnel or school administrator has been

convicted of certain enumerated offenses. This provision does

not apply to Respondent as he is a noninstructional employee who

does not have direct contact with s tudents. Furthermore,

Respondent was not convicted of an offense as his criminal

matter is pending final disposition. Moreover, RespondentÓs

alleged offense is not listed under section 1012.315.

25. Petitioner argues Respondent is on notice that Scho ol

Board Rule 2.04(6) requires , for continued employment , that

Respondent must maintain a record clear of disqualifying

offenses. However, Respondent is entitled to notice of the

specific charge against him.

26. Respondent was issued a Notice of a recomm endation to

suspend his employment without pay for being arrested for a

disqualifying offense. However, the Notice failed to inform him

of the specific statutory provisions to support the violation.

As referenced in the C onclusions of L aw , paragraphs 23 and 24

herein, there are different requirements for disqualification

under sections 435.04, 1012.315, and 1012.465.

27. The evidence produced at hearing does not demonstrate

Respondent was provide d adequate notice of the charges against

hi m. Notwithstanding the inadequate N otice, Respondent has not

demonstrate d any prejudice which would warrant r eversal of the

School BoardÓs action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petiti oner, Escambia County School

Board, issue a f inal order affirming suspension without pay of

RespondentÓs employment, pending disposition of his criminal

charges.

DONE AND ENTERED this 22nd day of December , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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.state.fl.us

Filed wi th the Clerk of the

Division of Administrative Hearings

this 22nd day of December , 2017 .

COPIES FURNISHED:

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Mark S. Levine, Esquir e

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Malcolm Thomas, Superintendent

Escambia County Schoo l District

75 North Pace Boulevard

Pensacola, Florida 32505

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll 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.