18-002270 Escambia County School Board vs. Justin Warren Status: Closed Recommended Order on Thursday, May 16, 2019.

Summary: Respondent demonstrated he is entitled to back pay following suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No . 18 - 2270

JUSTIN WARREN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 13, 2018, Administrati ve Law Judge Yolonda Y.

Green conducted a final hearing pursuant to section 120.57(1),

Florida Statutes (2018), in Pensacola, Florida.

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 TH E ISSUE

The issue to be determined in this proceeding is whether

Respondent is entitled to back pay following reinstatement to

employment after suspension without pay.

PRELIMINARY STATEMENT

On February 23, 2018 , Petitioner, Escambia School Board

(ÐPetiti onerÑ or ÐSchool BoardÑ) , entered a final order in DOAH

Case No. 17 - 4220 , which resulted in the School Board suspending

Respondent , Justin Warren (ÐRespondentÑ or ÐMr. WarrenÑ) ,

without pay. By lette r dated November 15, 2017, the

s uperintendent notified R espondent that he would recommend that

Respondent be reinstated to his position , effective November 17,

2017. However, the recommendation did not include an award for

back pay for the period of suspension without pay. On April 24,

2018, Mr. Warren reques ted an a dministrative h earing to dispute

the School BoardÓs determination to not award back pay following

his reinstatement to employment. This matter was assigned to

the undersigned on May 8, 2018. This matter was scheduled for

hearing on July 11, 2018. On June 20, 2018, the parties

requested a continuance, which was granted. The parties were

instr ucted to file a status report by July 9, 2018. On July 6,

2018, the p arties filed their Status Report stating they agreed

to consolidate the Rule Challenge filed in DOAH Case

No. 18 - 3340RX with the instant case. On July 6, 2018, the

undersigned conducted a status conference to address scheduling

the final hearing. Thereafter, th e undersigned entered an Order

c onsolidating DOAH Case Nos. 18 - 2270 and 18 - 3340 RX and

scheduling the final hearing for September 13, 2018.

The final hearing proceeded as scheduled on Septem ber 13,

2018. At hearing, the p arties offered three wi tnesses:

James Alan Scott, Ed. D., assistant superintendent for human

resources of the Esca mbia County School District (ÐSc hool

DistrictÑ); Nicole Spika, e xecutive d irector of ESP and Union of

Education Association; and Donna Sessions Waters, general

counsel for the School District. Petitioner s offered Exhibits 1

through 6, which were admitted. Respondent offered Exhibits 1

through 9, which were admitted.

Following the hearing, the undersigned granted the p artiesÓ

request for an extended deadline of 30 days after filing of the

official hearing transcript to file proposed recommended orders

(ÐPR OsÑ). 1/ The one - volume Transcript of the hearing was filed

on October 31, 2018, and the PROs were initially due on

November 29, 2018. Thereafter, the parties requested an

extension of time on three separate occasions, which the

undersigned granted. A fo urth request for exte nsion of time was

denied. The p arties filed their PROs after the designated time

for filing, February 15, 2019, and , thus, were untimely.

On February 18, 2019, Petitioners filed their Unopposed

Motion to Deem Proposed Final Order Ti mely Filed. On

February 19, 2019, Respondent filed a Motion for Submitting and

Filing Proposed Recommended Order (case no. 18 - 2270) and

Proposed Final Order (case no. 18 - 3340RX) Two Business Days out

of Time. The undersigned hereby grants both motions . The

p artiesÓ PROs were considered in preparing this Recommended

Order.

Unless otherwise indicated, all references to Florida

Statutes are to the 2017 codification.

FINDING S OF FACT

1. At the final hearing, the p art ies stipulated to

adopting the F indin gs of F act from DOAH Case No. 17 - 4220, which

are incorporated herein as follows:

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. Cons t.; § 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 requirements of chapter

1012 .

2. At all times relevant t o 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. WarrenÓs position

with the S chool Board 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 remain at the

school for var ious 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 and

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 arises from a dispute where it was

alleged that he forged a quitclaim deed,

tr ansferring property from 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 valued 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

final disposition.

7. On May 18, 2017, Superintendent of the

School Board, Malcolm Thomas, provided

written notice to Respondent that he was

suspended Ðwith p ay effective immediately

. . . pending the outcome of an arrest for

§812.014.2b1 [sic], F.S., a disqualifying

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

Superintendent not ified 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

mor e 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

Ðdisqualifying offe nse.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 p ay, effective

June 21, 2017. As cause for Mr. WarrenÓs

suspension without p ay, 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 authority for the Sch ool

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

Additional Findings of Fact

2. While DOAH Cas e No. 17 - 4220 addressed the issue of

whether the School Board had authority to suspend Mr. Warren

without pay until final resolution of the criminal charge

alleging a violation of section 812.014 ( 2 )( b ) 1 . , Florida

Statutes, the issue of reinstatement and ba ck pay were not at

issue in that case.

3. There was no evidence offered at hearing that the

School Board offered Mr. Warren the opportunity to work in a

location that does not have direct contact with students until

the charges were resolved.

4. Nearly five months after the Final O rder was entered in

DOAH Case No. 17 - 4220, the criminal charges , which served as the

basis for Mr. WarrenÓs suspension without pay , were dismissed.

As a result, the School Board reinstated Mr. Warren to his same

p osition as a custodial worker , effective November 17, 2017.

The School Board denied Mr. Warren back pay for the period he

was suspended without pay.

5. The School Board relied on its Rules and Procedure

rul e 2.04 (2017), when it approved the recommendation to suspe nd

Mr. Warren without pay for the pending criminal charge.

6. Rule 2.04 provides that Ða record clear of

disqualifying offenses as defined in section A . . . is required

for employment or continued employment. Ñ However, rule 2.04

fails to address the method of reinstatement or the condition

upon which an employee would receive back pay if criminal

allegations related to a potentially disqualifying offense were

resolved favorably for the employee.

7. The School Board has refused to award back pay to

Mr. Warren on the basis that his criminal charges resulted from

actions outside the scope of his employment. There is no

written policy in rule 2.04 or otherwise that an existing

employee who is suspended without pay for conduct that occurred

outside the scope of his or her work environment is not entitled

to back pay upon reinstatement. It is simply general practice.

8. The assistant superintendent of human resources for the

School District (Dr. Scott ) and the general counsel (Ms. Waters)

testified re garding the policy of not awarding back pay to

reinstated employees after suspension without pay.

9. Dr. Scott, who has served as the assistant

superintendent of human resources for the School District since

2005, testified that Ð[g]enerally, if an emplo yee is suspended

without pay based on criminal charges or investigation of

misconduct but in the scope of the employeeÓs position . . . and

the employee is subsequently exonerated and reinstated, back pay

will be awarded.Ñ By contrast, Ðif an employee is suspended

without pay pending criminal charges and/or investigation,

potentially, unlawful conduct unrelated to the employeeÓs

performance of their duties in his or employment, in the event

the employee is reinstated, back pay is generally not

award [ed] .Ñ Dr. Scott also testified that the DistrictÓs

practice Ðcan be a substituteÑ for a properly adopted rule. He

acknowledged that the policy has not been approved by the School

B oard. Moreover, he acknowledged that the policy is not based

on any adopted rul e.

10. Ms. Waters also testified about the policy of not

awarding back pay. She testified that she Ðwas not able to

answer the question in the abstractÑ regarding whether the

policy was generally applicable. She stated that it would be Ða

fact kind of q uestion.Ñ

11. In this case, Mr. Warren was deprived of wages that he

would have earned but for the suspension without pay for

criminal charges that were later dismissed.

12. There was much discussion at hearing regarding whether

the School BoardÓs act ion of suspending Mr. Warren without pay

should be considered discipline. Ms. Spika testified that the

action of suspending Mr. Warren without pay is considered

disciplinary action.

13. Discipline is defined in the Collective Bargaining

Agreement (Ð CBA Ñ) as including suspension without pay.

Discipline is also defined as corrective action to improve

be havior. Here, the School Board did not consider Mr. WarrenÓs

suspension without pay as disciplinary action as it was not

intended to correct his work per fo rmance or work place conduct.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to sections 120.56, 120.569, and 120.57(1),

Florida Statutes.

15. Petitione r has standing in this proceeding. Section

120.56 allows a person who is substantially affected by a rule

or agency statement to initiate a challenge. To establish

standing under the Ðsubstantially affectedÑ test, a party must

demonstrate that: 1) the r ule will result in a real and

immediate injury in fact, and 2) the alleged interest is within

the zone of interest to be protected or regulated. Jacoby v.

Fla. Bd. of Med. , 917 So. 2d 358 (Fla. 1st DCA 2005); see also

Fla. Bd. of Med. v. Fla. Acad. of Co smetic Surgery , 808 So. 2d

243, 250 (Fla. 1st DCA 2002), superseded on other grounds , DepÓt

of Health v. Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006).

16. Mr. Warren has established that he is a

noninstructional employee of the School District, currently

working at a school within the School District, subject to

School Board rules. Moreover, he was reinstated to employment

following a suspension for a pending criminal arrest for a

potentially disqualifying offense. Mr. Warren is substantially

affected by the application of the School BoardÓs policy

regarding back pay.

17. The party seeking to prove the affirmative of an issue

has the burden of proof. Fla. DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

18. The party seeking to prove this type of case must do

so by a preponderance of the evidence. § 120.57(1)(j), Fla.

Stat.

19. Mr. Warren seeks to recover back pay for the time

period during the time he was suspended without pay. Thus,

Mr. Warren must prove by a prepondera nce of evidence that he is

entitled to back pay.

20. To the extent there is a statute, rule, employment

contract, or CBA that authorizes such relief, Mr. Warren should

be reinstated and awarded full back pay and benefits. See Sch.

Bd. of Seminole Cnty . v. Morgan , 582 So. 2d 787, 788 (Fla. 5th

DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty. , 419 So. 2d 659,

661 (Fla. 5th DCA 1982).

21. There is no statutory authority to award back pay to a

noninstructional employee following suspension without pay.

2 2. The CBA did not address the issue of back pay. School

Board rule 2.04, which served as the basis for Mr. WarrenÓs

suspension without pay , also did not address back pay under the

circumstances here. Finally, the undersigned is unaware whether

Petition er had an employment contract with the School Board as

none was offered at hearing.

23. The testimony at hearing demonstrates that the School

Board had an unwritten practice or policy to deny back pay to

existing employees who had pending criminal char ge arising out

of conduct that was outside the scope of the employeeÓs

employment.

24. But for this unwritten policy, Mr. Warren would have

been entitled to the salary and benefits he would have earned

during the period of suspension.

25. Dr. Scott te stified that the School DistrictÓs

practice Ðcan be a substituteÑ for a properly adopted rule. He

testified that the policy was not based on any adopted rule.

However, based on the testimony of Dr. Scott and Ms. Waters, the

policy of refusing to award ba ck pay to employees charged with a

crime unrelated to the personÓs employment by its terms is not

limited to the facts. It is instead a general practice , which

applies to any employee who is similarly situated as Mr. Warren.

26. There is no such requir ement in the statute or

rule 2.04. To impose such a stringent practice or policy here

would be impermissibly basing agency action on an unadopted

rule. This practice or policy would be applicable to any

similarly situated existing employee. The School B oardÓs action

in this respect constitutes an unadopted rule. Section

120.57(1)(e) prohibits an agency or an administrative law judge

from basing agency action that determines the substantial

interests of a party on an unadopted rule.

27. The School Boa rd argued that Petitioner may not raise

a rule challenge in this matter because it should have been

raised pursuant to section 120.56(4)(g). However, section

120.56(4) does not preclude Respondent from raising an unadopted

r ule challenge during a disputed fact hearing under section

120.57(1). Petitioner, however, did not raise an unadopted rule

challenge argument here.

28. To the extent the S chool B oard makes a determination

of awarding back pay to Mr. Warren, Ms. Waters testified the

decision regarding awarding back pay is Ða fact kind of

question.Ñ

29. Consistent with Mr. WarrenÓs reinstatement, the facts

here support an award of back pay. The circumstances

surrounding the incident involved a family dispute over

property. The criminal charges were dismissed, and as a result,

the potentially disqualifying offense was not legally

substantiated. The School Board determined that the suspension

without pay would no t constitute discipline against Mr. Warren.

However, to deprive Mr. Warren of his interes t in the salary and

benefits he would have earned had he not been suspended without

pay would have the effect of disciplinary action.

30. There appears to be ample authority for the School

Board to award back pay to Mr. Warren, and it is routinely done

when the alleged, but unproven , disqualifying offense is Ðwithin

the scope of employment.Ñ A rational basis to support a

distinction based on the relationship of the offense to

employment was not proven in this matter .

RECOMMENDATION

Based on the foregoin g Findings of Fact and Conclusions of

Law, it is RECOMMENDED that to the extent there is authority to

do so, Mr. Warren should be reinstated and awarded full back pay

and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan , 582 So.

2d 787, 788 (Fla. 5th DC A 1991); Brooks v. Sch. Bd. of Brevard

Cnty. , 419 So. 2d 659, 661 (Fla. 5th DCA 1982).

DONE AND ENTERED this 16th day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Divisi on 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 16th day of May , 2 019 .

ENDNOTE

1/ By agreeing to an extended deadline for post - hearing

submissions, the 30 - day time period for filing this Recommended

Order was waived.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Str eet

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 & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 3230 1

(eServed)

Malcolm Thomas, Superintendent

Escambia County School District

75 North Pace Boulevard

Pensacola, Florida 32505

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahasse e, Florida 32399 - 0400

(eServed)

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 age ncy that

will issue the Final Order in this case.