18-005044 Monroe County School Board vs. Sharon Coney Status: Closed Recommended Order on Wednesday, December 19, 2018.

Summary: The School Board's termination of Respondent, a non-instructional employee, is justified based on her level 2 five-year background rescreening which showed a 1989 felony grand theft conviction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 5044

SHARON CONEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative La w Judge Darren A.

Schwartz of the Division of Administrative Hearings ( " DOAH " ) for

final hearing by video teleconference on October 30, 2018, at

sites in Tallahassee and Key West, Florida.

APPEARANCES

For Petitioner: Gaelan P. Jones, Esquire

Monroe County School Board

81990 Overseas Highway, 3rd Floor

Islamorada, Florida 33036

For Respondent: Sharon Coney, pro se

10 Northwest 6th Avenue

Homestead, Florida 33030

STATE MENT OF THE ISSUE

Whether the Monroe County School Board ("School Board") may

terminate Respondent ' s employment as a non - instructional food

service worker and bus aide based on the results of a five - year

level 2 background rescreening, which reflects that Respondent

was adjudicated guilty in 1989 of grand theft, a third - degree

felony.

PRELIMINARY STATEMENT

By correspondence dated August 22, 2018, the School Board

notified Respondent of its intent to suspend and terminate her

employment as a food service w orker and bus aide because of her

criminal history reflected on a five - year level 2 background

rescreening. Respondent timely requested an administrative

hearing to challenge the School Board ' s termination. On

September 19, 2018, the matter was referred to DOAH to assign an

administrative law judge to conduct the final hearing. The

referral included the School Board ' s Administrative Complaint

against Respondent, dated September 19, 2018.

On October 2, 2018, the undersigned issued an Order setting

this matter for final hearing on October 30, 2018. The final

hearing was held as scheduled with both parties present. At the

hearing, the School Board presented the testimony of Amy

Flaherty. The School Board ' s Exhibits 1 through 3 were received

in evidence. Respondent testified on her own behalf. Respondent

did not offer any exhibits into evidence.

On November 27, 2018 , the one - volume final hearing

Transcript was filed at DOAH. The School Board timely filed a

proposed recommended order, which was consider ed in the

preparation of this Recommended Order. Respondent did not file a

proposed recommended order.

Unless otherwise indicated, all statutory references are to

the 2018 version of the Florida Statutes.

FINDING S OF FACT

1. The School Board i s a duly - constituted school board

charged with the duty to operate, control, and supervise the

public schools within Monroe County, Florida.

2. Respondent is a 53 - year - old female who was initially

hired by the School Board in 2013. At the time of her initial

hiring, Respondent was subjected to a criminal background

screening. However, the findings of the initial criminal

background screening were not presented at hearing.

3. In any event, Respondent was not disqualified based on

the initial crimina l background screening. Since 2013,

Respondent has worked for the School Board as a non - instructional

food service worker and bus aide.

4. By all accounts, Respondent has been an exemplary

employee throughout her employment with the School Board. Her

a ttendance has been excellent, and on at least one particular

occasion, she was named employee of the month at Monroe County

High School.

5 . However, on July 31, 2018, because Respondent had direct

access to children, she underwent a mandatory five - yea r criminal

background rescreening.

6. On August 1, 2018, the School Board sent correspondence

to Respondent informing her that her criminal background

rescreening had revealed prior arrests. This same correspondence

requested that Respondent provide fin al dispositions of the

arrests by August 9, 2018.

7. Respondent provided the School Board with a final court

disposition. Of relevance to the instant proceeding is a

disposition which reflects that in 1989, Respondent was

adjudicated guilty of grand the ft, a third - degree felony.

8. On August 22, 2018, the School Board sent Respondent a

letter signed by the superintendent, informing her of the School

Board ' s intent to suspend and terminate her employment because of

the 1989 felony grand theft conviction .

9. Respondent has not sought an exemption from

disqualification pursuant to section 435.07, Florid a Statutes.

10. In paragraph 8 of its proposed recommended order, the

School Board acknowledges that: " While Respondent had not

applied for such an ex emption at the time of the Final Hearing,

it is noted that Respondent may have qualified for such an

exemption at the discretion of the School Board. " (emphasis

added).

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the subject matter and

parties to t his case pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

12. The School Board bears the burden of proving, by a

preponderance of the evidence, the justification for its proposed

action to terminate Respondent ' s employment. Cisneros v. S ch.

Bd. o f Miami - Dade Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA

2008).

13. As a full - time food service worker and bus aide,

Respondent was, at all times material to this matter, a non -

instructional " educational support employee " as defined by

section 101 2.40(1)(a), Florida Statutes.

14. Section 1012.465 governs criminal background

screening of non - instructional employees, such as Respondent.

Section 1012.465 provides as follows:

( 1) Except as provided in s. 1012.467 or

s. 1012.468, noninstructional school 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

cont rol of school funds must meet level 2

screening requirements as described in

s. 1012.32. Contractual personnel shall

include any vendor, individual, or entity

under contract with a school or the school

board.

(2) Every 5 years following employment or

en try into a contract in a capacity described

in subsection (1), each person who is so

employed or under contract with the school

district must meet level 2 screening

requirements as described in s. 1012.32, at

which time the school district shall request

th e Department of Law Enforcement to forward

the fingerprints to the Federal Bureau of

Investigation for the level 2 screening. If,

for any reason following employment or entry

into a contract in a capacity described in

subsection (1), the fingerprints of a person

who is so employed or under contract with the

school district are not retained by the

Department of Law Enforcement under

s. 1012.32 (3)(a) and (b), the person must

file a complete set of fingerprints with the

district school superintendent of the

e mploying or contracting school district.

Upon submission of fingerprints for this

purpose, the school district shall request

the Department of Law Enforcement to forward

the fingerprints to the Federal Bureau of

Investigation for the level 2 screening, and

the fingerprints shall be retained by the

Department of Law Enforcement under

s. 1012.32 (3)(a) and (b). The cost of the

state and federal criminal history check

required by level 2 screening may be borne by

the district school board, the contractor, or

t he person fingerprinted. Under penalty of

perjury, each person who is employed or under

contract in a capacity described in

subsection (1) must agree to inform his or

her employer or the party with whom he or she

is under contract within 48 hours if

convi cted of any disqualifying offense while

he or she is employed or under contract in

that capacity.

(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 per son shall be

immediately suspended from working in that

capacity and shall remain suspended until

final resolution of any appeals.

15 . In the instant case, it is clear that Respondent did

not meet the level 2 background screening requirements because of

the 1989 felony grand theft conviction which was discovered on

her 2018 rescreening. Accordingly, Respondent is ineligible for

employment, and the School Board proved, by a preponderance of

the evidence, that Respondent ' s termination is justified under

se ction 1012.465(3).

16. The School Board also seeks to rely on School Board

Policy 4121.01, which requires all employees be subjected to a

criminal background check prior to initial employment in order to

determine suitability for employment. The poli cy also requires

that employees be re - fingerprinted every five years thereafter.

17. However, the policy does not provide for any proposed

disciplinary action in the event the results of a five - year re -

fingerprinting reveal a criminal conviction. Respo ndent complied

with the policy when she was re - fingerprinted five years after

her initial employment. Accordingly, the School Board failed to

prove that Respondent ' s termination is justifi ed pursuant to

Policy 4121.01. 1/

18. Finally, the School Board re lies on section 435.04 as

grounds for Respondent ' s termination. Level 2 screening

requirements are specified in section 435.04. Section 435.04(2)

provides, in pertinent part:

(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.

19. Section 435.07(1)(a) provides, in pertinent part, that:

The head of the appropriate agency may grant

to any employee otherwise disqualified fr om

employment an exemption from disqualification

for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervision, or nonmonetary

condition imposed by t he court for the

disqualifying felony.

20. In the instant case, the School Board proved, by a

preponderance of the evidence, that Respondent ' s termination is

justified pursuant to section 434.04. Respondent ' s termination

is justified because she was c onvicted in 1989 of grand theft, a

third - degree felony .

21. Nevertheless, in its proposed recommended order, the

School Board acknowledges that Respondent may have been entitled

to an exemption from disqualification from the head of the

agency. However, as of the final hearing, Respondent had not

applied for an exemption from disqualification of employment.

22. In the event Respondent applies for an exemption from

disqualification pursuant to section 435.07 before the entry of

the School Board ' s Final Order, the School Board should

reconsider its proposed termination of Respondent. Moreover, in

the event Respondent applies for an exemption from

disqualification pursuant to section 435.07, and the head of the

agency denies the application, Respondent sh ould be given a clear

point of entry to initiate a separate administrative proceeding

in which to challenge the School Board ' s action. However, these

issues are beyond the scope of this case.

23. In sum, the School Board ' s termination of Respondent

bas ed on the evidence presented at the hearing is justified.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Monro e County School

Board, enter a final o rder upholding Respondent ' s termina tion.

DONE AND ENTERED this 19th day of December , 2018 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 19th day of December , 2018 .

ENDNOTE

1/ School Board Policy 4121.01 was not received in e vidence as an

exhibit at the hearing. However, the policy is quoted verbatim

in the Administrative Complaint, and the undersigned has taken

official recognition of the policy.

Policy 4121.01, entitled CRIMINAL BACKGROUND AND

EMPLOYMENT , provides as follows:

The safety of its students is of paramount

importance to the District. Consistent with

this concern for student safety, and in

compliance with Florida law, the District

requires that, prior to initial employment,

all candidates for all positio ns shall be

subject to a criminal background check to

determine suitability for employment. The

application for employment shall inform the

applicants that they are subject to criminal

background checks. All current employees

must be re - fingerprinted every five (5)

years, and must self - report arrests for

serious offenses as listed in AP 4121.01

The information contained in the reports

received concerning an employee ' s criminal

background check shall be confid ential.

COPIES FURNISHED:

Gaelan P. Jones, Esquire

Monroe County School Board

81990 Overseas Highway , 3rd Floor

Islamorada, Florida 33036

(eServed)

Sharon Coney

810 Northwest 6th Avenue

Homestead, Florida 33030

Matthew Mears, General Counsel

D epart ment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Mark T. Porter, Superintendent

Monroe County School District

umbo Road

Key West, Florida 33040

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.