17-005600 Escambia County School Board vs. Deborah Peterson Status: Closed Recommended Order on Thursday, March 1, 2018.

Summary: Respondent admitted to a felony and was properly suspended without pay by the School Board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 5600

DEBORAH PETERSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final formal administrative hearing

was conducted in this case on January 10, 2018 , in Pensacola ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings ( Ð DOAH Ñ ) .

APPEARANCES

For Petitioner: Joseph L. Hammons, Esqui re

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

For Respondent: Mark S. Levine, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMEN T OF THE ISSUE

The issue in this case is whether the suspension without

pay of Respondent, Deborah Peterson, by Petitioner, Escambia

County School Board (the ÐBoardÑ), was justified or appropriate .

PRELIMINARY STATEMENT

In August 2017 , Respondent was notified by letter from

the Board that she was being suspended without pay from her

position as a cafeteria worker . Respondent timely requested an

administrative hearing to contest the BoardÓs action. The

matter was referred to DOAH on October 12, 2017 .

At the final hearing, the Board called three witnesses:

Jaleena Davis, food service director; Elizabeth Oakes, director

of personnel services; and Dr. Alan Scott, assistant

superintendent of human resources . Respondent recalled

Dr. Scott and also calle d Keith Leonard, director of human

resources. Fifteen exhibits were joi ntly offered by the parties

and were accepted into evidence. (All hearsay evidence was

admitted subject to corroboration by competent, non - hearsay

evidence. To the extent that eviden ce did not supplement or

explain non - hearsay evidence , such evidence will not be solely

used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of

the final hearing would be ordered. B y rule parties are allowed

10 days from the date the transcript i s filed at DOAH to submit

proposed recommended orders . The parties requested and were

granted an additional 1 0 days , making the filing deadline

20 days from the filing of the transcript. The T ranscript was

filed on Janu ary 22, 2018 . Each party timely submitted a

P roposed R ecommended O rder and both parties' submissions were

given due consideration in the preparation of this Recommended

Order.

FINDINGS OF FACT

1 . The Board is responsible for hiring, supervising, and

firi ng all employees within the Escambia County School system.

This responsibility includes taking administrative action when

an employee violates any rule or policy created by the Board.

2 . Respondent is employed by the Board as a cafeteria

worker at Westga te School, a K - through - 12 school for special

needs students. She is not an instructional employee, but she

does have direct contact with students. Respondent has had no

prior disciplinary or negative administrative action taken

against her . She is consi dered a very good employee and would

be welcomed back to work once she is eligible.

3 . By letter dated August 29, 2017, Respondent was

notified that Ðyou are placed on suspension with pay effective

August 18, 2017, pending the outcome of an arrest for a

disqualifying offense.Ñ The letter did not identify the

disqualifying offense nor did it cite to any authority

supporting whether the alleged offense was disqualifying in

nature . It merely stated that Respondent had been arrested and

that the arrest was for a disqualifying offense.

4 . On the same day, Respondent was notified by way of

another letter from the Superintendent of schools that he was

recommending to the Board that RespondentÓs suspension be

without pay. Although the Superintendent can susp end an

employee, only the Board has authority to do so without pay.

The letter said the matter would be brought up at the upcoming

Board meeting on September 19 , 2017 . Once again, the letter did

not identify the specific facts, stating only that Ð[t] he

c onduct at issue involves an arrest for a disqualifying

offense . Ñ The letter did no t cite to any authority for the

proposed action. The letter did, however, include a statement

that Respondent could Ð review any and all documentation and

records that suppo rt this action.Ñ

5 . Respondent was subsequently notified (via letter

dated September 21 , 2017 ) that the Board had approved the

SuperintendentÓs recommendation for suspension without pay. The

letter stated in pertinent part that , Ð [Respondent] is suspende d

without pay beginning Wednesday, September 20, 2017, based on

conduct as more specifically identified in the notice letter to

the employee.Ñ At no point did any of the correspondence to

Respondent specifically identify the disqualifying offense.

6 . H owever, as noted above, Respondent was invited to meet

with Ms. Oakes, the BoardÓs director of personnel services,

after the August 29 , 2017 , letters were provided to Respondent.

Respondent did meet with Ms. Oakes , who explained that the

disqualifying off ense alluded to in the letters was RespondentÓs

arrest for theft in the S tate of Alabama. Respondent was,

therefore, orally notified as to the disqualifying offense at

issue. This fact was established by Ms. Oakes during her

testimony at final hearing. Respondent did not testify at final

hearing or otherwise attempt to contradict Ms. OakesÓ testimony.

7 . According to documentary evidence presented at final

hearing, Respondent had been arrested for illegally redeeming a

ÐRedemption ticketÑ at a casino in Armore, Alabama. The value

of the ticket , which belonged to one of RespondentÓs friends,

was $1,180.89. After her arrest for the theft, Respondent

entered into a pre - trial diversion agreement with the State of

Alabama. Pursuant to the agreement, Respon dent admitted to the

crime as charged, waived her right to a speedy trial, consented

to six months Ó supervision by the Court, agreed to pay an

assessment of $750, was to make restitution to the victim, was

to refrain from the use of alcohol or drugs, agree d to not

violate any federal or state laws, was to maintain gainful

employment, and would have no further contact with the victim.

Once the terms of the pre - trial diversion agreement were

completed, all charges against Respondent would be nolle

prossed.

8 . As of the date of final hearing, the pre - trial

diversion agreement was still in place. No competent,

substantial evidence was introduced as to how Respondent is

progressing in her pre - trial diversion.

9 . The Board does not co nsider the action take n

against Respondent to be disciplinary in nature. From the

BoardÓs perspective, o nly actions taken as a result of an

employeeÓs violation of their school - related duties are deemed

disciplinary. Other actions, such as in RespondentÓs case or in

the case of a teacher allowing their certification to lapse, for

example, are not deemed disciplinary. Rather, they are

ÐadministrativeÑ actions.

10 . The action taken by the Board does not divest

Respondent of her status as an ÐemployeeÑ of the Board. She is

sus pended, but not terminated from employment. This fact is

important as Respondent has apparently been engaged in training

to become a school bus driver. However, she was purportedly

notified by someone from the school that she could not finish

her trainin g because of her suspension . 1/ Respondent is required

under her pre - trial diversion contract to either be gainfully

employed or in a training or educational setting.

11 . Respondent challenges the action by the Board on two

bases: 1) that the notice sh e received was deficient because

the letters did not contain a specific statement as to the

disqualifying offense ; and 2) that the crime of theft cannot be

used by the Board for disciplining an employee because the crime

does not appear in the list of disq ualifying offenses set forth

in chapter 10 1 2 , Florida Statutes. The offense is included in

c hapter 435 , but Respondent asserts that chapter does not apply

to school boards .

CONCLUSIONS OF LAW

12 . DOAH has jurisdiction over this matter pursuant to

s ectio ns 120.569 and 120.57 (1) , Florida Statutes, and pursuant

to a contract between DOAH and the Board. Unless specifically

stated otherwise, all references to Florida Statutes will be to

the 2017 codification.

13 . The Board has the bu rden of proof in this ma tter

as it is the party asserting the affirmative of the issue. See

DepÓt of Banking & Fin., Div. of Sec . & Inv. Prot. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996) . The standard of proof

is by a preponderance of the evidence . See Cisneros v. Sch. Bd.

of Dade Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill

v. Pinella s Cnty. Sch. B d. , 678 So. 2d 476 (Fla. 2 d DCA 1996);

and § 120.57(1)(j), Fla. Stat. The Board must prove in this

case that Respondent committed a disqualifying offense and her

suspension without pay was therefore justified .

14 . The Escambia County School Board p olicies govern the

BoardÓs operations and actions. Included in chapter 2 of those

policie s are guidelines which may disqualify persons from

employment at a school. Sch ool Board Policy (6)A states one

basis for disqualification :

Conviction (as defined in sections 435.04,

F.S., and/or 1012.315, F.S.) of a crime of

moral turpitude (Section 1012.33, F.S.).

Moral turpitude as defined by the District

includes, but is not lim ited to, crimes

listed in Sections 435.04, F.S., and/or

1012.315, F.S.

15 . In section 1012.3 15 (1)(y) , theft is listed as a

disqualifying offense, but only if the amount exceeds $3,000 .

In th is case , RespondentÓs offense is for less than that amount ,

thu s there was no disqualifying offense under section 1012.3 15 .

Under section 435.04(2)(cc), the crime of theft is listed as a

disqualifying offense if it was a felony , regardless of the

amount . RespondentÓs crime in Alabama was a felony under

Alabama law a nd it would be a felony in Florida as well.

16 . Respondent argues that chapter 435 sets out specified

agencies that fall within its purview. Those agencies are

enumerated in section 435. 02(5), which states:

ÐSpecified agencyÑ means the Department

of Hea lth, the Department of Children and

Families, the Division of Vocational

Rehabilitation within the Department of

Education, the Agency for Health Care

Administration, the Department of Elderly

Affairs, the Department of Juvenile Justice,

the Agency for Per sons with Disabilities,

and local licensing agencies approved

pursuant to s. 402.307, when these agencies

are conducting state and national c riminal

history background screening on persons who

work with children or persons who are

elderly or disabled.

1 7 . The definition of specified agencies does not include

school boards or school districts . It can therefore be deduced

that the Legislature did not int end to include school boards

or school districts within chapter 435 . Respondent argues that

the charg e of theft, therefore, having come from the list of

offenses in chapter 435, is not a valid basis for suspending her

employment.

18 . Following passage of the Jessica Lunsford Act by the

Florida Legislature in 2005, the Florida Department of Education

iss ued a Technical Assistance Paper (ÐTAPÑ) to assist school

boards concerning hiring practices. The TAP included a section

addressing certain individuals who could be disqualified from

employment. That section, appearing on pages four and five of

the TAP, are recited verbatim here as they form much of the

basis for RespondentÓs position in the present matter:

Section 1012.465, F.S., as amended, states

that those required to be screened must meet

Level 2 screening requirements Ðas described

in s. 1012.32, F. S.Ñ [2/]

Some distric ts have questioned whether

they may simply adopt the crimes enumerated

in s. 435.04, F.S., the general Level 2

screening statute, as the disqualifiers.

Such an interpretation would be incorrect,

as s. 435.01, F.S., states:

ÐWhenever 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.Ñ

(Emphasis added.) In the case of background

screenings for employment at schools, the

law (s. 1012.465, F.S.) otherwise provides

that districts must apply the standards

found in s. 1012.32, F.S. Thus districts

must look to the language in s. 1012.32,

F.S. to determine the scope of disqualifying

offenses, using the Ðcrimes o f moral

turpitudeÑ standard, just as schools

have been previously doin g for their own

employees. Rule 6B - 4.009(6), used by many

school districts for their own employees,

defines moral turpitude as:

ÐMoral turpitude is a crime that is

evidence d by an act of baseness, vileness,

or depravity in the private and social

duties, which, according to the accepted

standards of the time a man owes to his or

her fellow ma n or to society in general,

and the doing of an act itself and not its

prohibition by statute fix es the moral

turpitude.Ñ

Any of the offenses listed in s. 435.04,

F.S., may certainly be a disqualifier

for employmen t at a district. However,

each district must make is own case - by - case

determination of whether an act or acts

revealed in a background ch eck disqualifies

an individual from employment at the

district. See , Palm Beach County Sch.

B d. v. Ray Ano , DOAH Case No. 03 - 2497,

(Amended Recommended Order, July 1, 2004).

In effect, the law now holds all contractual

employees to the same standards as the

districtÓs own employees with regard to

background screening.

1 9 . Thus, a ccording to the TAP, a school board may

not , without more, simply adopt t he crimes enumerated in

chapter 435 as Ðdisqualifiers.Ñ The disqualifying offenses are

already listed in section 1012.315 . In order to add other

disqualifying offenses (such as those listed in chapter 435), a

school board must look to section 1012.32 for guidance. That

statute states in pertinent part:

(1) To be eligible for appointment in

any position i n any district school system,

a person must be of good moral character;

must have a ttained the age of 18 years,

if he or she is to be employed in an

instructional capacity; must not be

ineligib le for such employment under

s. 1012.315; and must, when requ ired

by law, hold a cert ificate or license

issued under rules of the State Board of

Education or the Department of Children and

Families. . . .

20 . The section 1012.315 disqualifiers are only some

of the reasons a person may not be eligible for employmen t.

A school board may also add a disqualifier that concerns an

issue of good moral character , insufficient age, or failure to

have a license .

21 . Moral turpitude is addressed in Florida Administrative

Code Rule 6A - 10.083. The bar for establishing moral turpitude

is pretty low ; it includes Ð [a] n act or omission, regardless of

whether the individual is charged with or convicted of any

criminal offense, which would constitute a felony or a first

degree misdemeanor under the laws of the State of Florida or

equivalent law in another state or U.S. Territory, or laws of

the United States of America.Ñ Fla. Admin. Code R. 6 A -

10.083 (3) .

22 . The above - identified r ule also sets forth factors to

be considered when determining whether an act or omission rises

to th e level of gross immorality or moral turpitude, including

the following:

(a) The [e mployee Ós] dishonesty or

deception;

* * *

(f) The harm, injury or insult to the

victim;

* * *

(h) The benefit derived by the [e mployeeÓs]

Fla. Admin. Code R. 6A - 10.0 83 (4) .

2 3 . The record established that Respondent took a payment

voucher which had been issued to her friend while they were

visiting a casino in Alabama. Respondent falsified and redeem ed

the voucher in her own name. She was charged with a felony by

A labama authorities and, according to the Pre - Trial Diversion

Agreement, admitted her guilt in the matter.

2 4 . T he TAP states clearly that, Ð [a] ny of the offenses

listed in s. 435.04, F.S., may certainly be a disqualifier for

employment at a district. Ñ In the present case, the Board has

determined that admitting guilt to felony theft does not

demonstrate good moral character and thus may constitute a basis

for denying employment. School Board Policy 2.04(6) A states

that any offense under chapter 435 and/o r chapter 1012 may be

considered by the Board when determining whether a person is

eligible for employment . The School Board Policy could have

also included the Ten Commandments or the Code of Hammurabi as

bases for determining disqualifying offenses ; it is, stated the

TAP, up to each school board to decide. (It is the opinion of

the undersigned that the TAP simply said that when considering

disqualifying offenses, chapter 1012 must be considered; other

chapters or sources might also be considered, but ch apter 1012

was paramount .)

2 5 . Thus, although the Board is not directly subject to

chapter 435, it has accepted the findings from the TAP and

allowed theft Î - taken from the list of offenses set out in

section 435.04(2)(cc) - Î as a Ðdisqualifier for employme ntÑ in the

Escambia County School District.

2 6 . Even though the letters to Respondent did not contain

references to these statutory provisions, they all uded to a n

unnamed disqualifying offense . During RespondentÓs face - to - face

meeting with Ms. Oates, s he was sufficiently advised of the

exact reason for her suspension. As the disqualifying offense

was of the sort contemplated in the BoardÓs policie s, its

actions were justified.

27 . Despite well - reasoned arguments by RespondentÓs

counsel, wherein the i nterplay and seeming inconsistency of

competing statutes were brilliantly addressed, the bottom line

in this case is that Respondent, an employee of the Board,

engaged in an activity which the Board found , and memorialized

in its adopted School B oard Polic y (6)A, to be outside the realm

of good moral character. In accordance with its existing

policies, the Board chose to suspe nd Î - not to terminate

RespondentÓs employment status.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions

of Law , it is RECOMMENDED that a final order be entered by

Petitioner, Escambia County School Board , upholding the decision

to suspend Respondent, Deborah Peterson, without pay .

DONE AND ENT ERED this 1st day of March 2018 , in

Tallahassee, Leon County, F lorida.

S

R. BRUCE MCKIBBEN

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 with the Clerk of the

Division of Administrative Hearings

this 1st day of March 2018 .

ENDNOTES

1/ Again, Respondent did not provide testimony or other evidence

at final hearing concerning her efforts to comply with the

pretrial dive rsion r equirements. Respondent Ó s alleged training

was alluded to by her counsel, but no legitimate evidence was

presented in that regard.

2/ Section 1012.32 states in pertinent part:

(2)(a) Instructional and non - instructional

personnel who are hired or cont racted to

fill positions that require direct contact

with students in any district school

system or university lab school must,

upon employment or engagement to provide

services, undergo background screening as

required under s. 1012.465 or 1012.56,

whiche ver is applicable.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Mark S. Levine, Esquire

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

School District of Escambia County

75 North Pace Boulevard

Pensacola, Florida 32505

Matt hew 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

All parties have the right to s ubmit written exceptions

within 15 d ays 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.