20-004471 Sarasota County School Board vs. Ernest Curry Status: Closed Recommended Order on Thursday, January 7, 2021.

Summary: The Sarasota County School Board established just cause to terminate Respondent for testing positive for marijuana.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S ARASOTA C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 4471

E RNEST C URRY ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH), on December 3, 2020, by Zoom Conference.

A PPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Rob Robinson Attorney, P.A.

500 Washington Boulevard , Suite 400

Sarasota, Florida 34236

For Respondent: No appearance

S TATEMENT OF T HE I SSUE

Whether Petitioner, Sarasota County School Board (Petitioner or School

Board ), had just cause to ter minate Ernest Curry ( Respondent ) for

misconduct in office .

P RELIMINARY S TATEMENT

By letter dated September 15, 2020, Brennan W. Asplen , III, Ed.D.,

s uperintendent of the Sarasota County School District (School District) ,

notified Respondent that just caus e existed to terminate his employment

(Termination Letter). The Termination L etter stated that just cause was

based on a failed reasonable suspicion drug screen, which amounted to

Ñmisconduct in office,Ò among other offenses . The Termination Letter notifie d

Respondent that the superintend ent would recommend Respondent be

terminated and that the recommendation of termination would be considered

at an October 6, 2020 , School Board meeting . The Termination Letter further

informed Respondent that he could conte st the recommendation by

submitting a written request for hearing within 21 calendar days of the date

of the letter. Respondent timely requested a hearing.

The School Board transmitted the matter to DOAH on October 7, 2020 , for

the assignment of an admin istrative law judge to conduct the hearing

requested by Respondent.

Pursuant to a Notice of Hearing by Zoom Conference , the undersigned

conducted a final hearing on December 3, 2020, utilizing the Zoom

Conference platform . Although the Notice of Hearing clearly stated that th e

hearing was to commence at 9:3 0 a.m., no one appeared on behalf of

Respondent at the starting time. The undersignedÔs assistant contacted

Respondent by telephone to advise that the hearing was scheduled to begin at

9:30 a.m. and to provide him with assistance to connect to the Zoom

Conference, if needed. Respondent indicated he did not desire to participate

in the final hearing. At approximately 9:53 a.m., the undersigned conven ed

the final hearing, without the appearance of Responde nt .

Petitioner presented the testimony of Al fred R. Harayda, William John

Grant, Pat ricia Ann Folino , and Crystal Komis. PetitionerÔs E xhibits 1

through 7 were admitted into evidence . 1

At the close of the hearing, Petitioner was advised of a ten - day t imeframe

following DOAHÔs receipt of the hearing transcript to file a proposed

recommended order . A one - volume Transcript of the final hearing was filed

with DOAH on December 17 , 2020. Petitioner submitted a timely P roposed

R ecommended O rder , which was rev iewed in preparation of this

Recommended Order . Respondent did not file a post - hearing submittal.

All references to the Florida Statutes and the Florida Adm inistrative Code

are to the 2020 versions .

F INDINGS OF F ACT

1. Petitioner is responsible for opera ting , controlling, and supervising the

public schools in the School District. See § 1001.32(2), Fla. Stat.

2. At all times material, Respondent was employed as a groundskeeper for

the School Board. Groundskeepers are educational support employees.

3. On September 2, 2020, while at work at Tuttle Elementary School,

Respondent submitted to a reasonable - suspicion urine drug screen. The final

test results returned positive for marijuana.

4. As an educational support employee, RespondentÔs employment with

th e School District is governed by the Collective Bargaining Agreement.

1 PetitionerÔs Exhibit 1 is a copy of an excerpt of the Classified Bargaining Un it Collective

Bargaining Agreement between the Sarasota Classified/Teachers Association and the School

Board of Sarasota County, FL (Collective Bargaining Agreement). T he undersigned takes

official recognition of the entire Collective Bargaining Agreement, which may be accessed at

https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019 -

20%20Classified - Final - Rev%20052620.pdf . (Last visited Jan. 6, 2021).

C ONCLUSIONS OF L AW

5 . DOAH has jurisdiction over the parties and the subject matter of this

cause pursuant to Article X X of the Collective Bargaining Agreement , S chool

Board Policy 6.3 7, and sections 1012. 40 ( 2 ) (c) , 120.569, and 120.57(1), Florida

Statutes.

6. Because this case is a proceeding in which Petitioner seeks to terminate

RespondentÔs employment with the School Board and does not involve the

loss of a license or certification, the School Board has the burden of proving

the factual basis for termination by a preponderance of the evidence.

Cisneros v. Sch. Bd. of Miami Dade Cty. , 990 So. 2d 1179 (Fla. 3d DCA 2008) ;

McNeill v. Pinellas C ty. Sch . Bd . , 678 So. 2d 476 (Fla. 2d DCA 19 96) .

7 . Petitioner is authorized to terminate Respondent, subject to the

requirements of chapter 1012. § 1012.22(1)(f), Fla. Stat.

8. An educational support employee is Ñany person employed by a district

school system who is employed as a teacher assistant , an education

paraprofessional, a member of the transportation department, a member of

the operations department, a member of the maintenance department, a

member of food service, a secretary, or a clerical employee, or any other

person who by virtue of h is or her position of employment is not required to

be certified by the Department of Education or district school board pursuant

to s. 1012.39.Ò £ 1012.40(1)(a), Fla. Stat. Respondent is an educational

support employee.

9. Section 1012.40 (2) provides that educational support employees may be

terminated for reasons set forth in the Collective Bargaining Agreement. It

provides in pertinent part:

(b) Upon successful completion of the

probationary period by the employee, the

employeeÔs status shall continue from year to year

unless the district school superintendent

terminates the employee for reasons stated in the

collective bargaining agreement, or i n district

school board rule in cases where a collective

bargaining agreement does not exist, or reduces the

number of employees on a districtwide basis for

financial reasons.

(c) In the event a district school superintendent

seeks termination of an emplo yee, the district

school board may suspend the employee with or

without pay. The employee shall receive written

notice and shall have the opportunity to formally

appeal the termination. The appeals process shall

be determined by the appropriate collective

bargaining process or by district school board rule

in the event there is no collective bargaining

agreement.

10. Article XX of the Collective Bargaining Agreement provides that

action may not be taken against an employee except for just cause, and this

must be substantiated by sufficient evidence which supports the

recommended disciplinary action.

11. Pursuant to section 1012.33(1)(a), Ñjust causeÒ includes Ñ misconduct in

office .Ò

12. Florida Administrative Code Rule 6A - 5.056 sets forth criteria for

sus pension and dismissal of school personnel. Subsection (2) defines

Ñm isconduct in o ffice , Ò as follows:

(2) ÑMisconduct in OfficeÒ means one or more of the

following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted i n Rule

6A - 10.080, F.A.C.;

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Florida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules ;

(d) Behavior that disrupts the studentÔs learning

environment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties. (emphasis added) .

1 3 . The School BoardÔs Alcohol and Drug - Free Workplace policy (School

Board Rule 6.33) provides t hat Ñno employee shall unlawfully manufacture,

distribute, dispense, possess, use, or be under the influence of, on the job or in

the workplace, any narcotic, drug, amphetamine, barbiturates, marijuana, or

any other controlled substance as defined in the C ontrolled Substances Act

(21 USC 812) and as further defined by the regulations at 21 CFR 1300 or

Florida Statutes, Chapter 893, without a valid prescription.Ò

14. Respondent violated School Board Rule 6.33 when he tested positive

for marijuana while at wo rk , indicating he had used the substance.

15. The School Board proved, by a preponderance of the evidence, that it

has just cause to terminate Respondent for misconduct in office based upon a

positive drug screen.

R ECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Sarasota County School Board enter a final order

terminating Respondent .

D ONE A ND E NTERED this 7th day of January, 2021 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

A dministrative 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 He arings

this 7th day of January , 2021 .

C OPIES F URNISHED :

Ernest Curry

3408 16th Court East

Bradenton, Florida 34208

Robert K. Robinson, Esquire

Rob Robinson Attorney, P.A.

500 South Washington Boulevard , Suite 400

Sarasota, Florida 34236

(eServed)

Dr . Brennan W. Asplen, III, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34321 - 3365

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.