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Creel v. District Board of Trustees of Brevard Community College6/8/2001
Administrative Appeal from the District Board of Trustees of Brevard Community College.
Lloyd Creel appeals the final order entered by the District Board of Trustees of Brevard Community College (the Board) terminating his employment as a maintenance supervisor at Brevard Community College. The Board's final order adopted the recommended order of the Administrative Law Judge (ALJ). Creel argues (1) that the ALJ erred in his recommended conclusion of law that Creel had no reasonable expectation of employment after June 30, 1999, and (2) that there was no competent substantial evidence in the record to support such a conclusion. Because the issue of Creel's employment expectations was not properly before the ALJ, we set aside that portion of the Board's order terminating Creel's employment.
Creel, a nineteen-year employee at Brevard Community College with average to outstanding reviews, was terminated from his employment because his driver's license was suspended for six months following a DUI conviction. The DUI occurred after work hours and while Creel was in his own vehicle. Creel asserted that termination was too severe a disciplinary action under the facts and circumstances and challenged his termination in a hearing before the ALJ.
At the hearing, Creel introduced evidence that he had a hardship driver's license and had not missed a single work obligation because of the suspension of his license. He further introduced evidence of three other Brevard Community College employees who had received DUI convictions but who had not been terminated from their employment because of their convictions. The ALJ agreed that termination was too harsh and recommended that the appropriate sanction be suspension without pay. However, the ALJ went one step further. It also ruled that because Creel was employed on an annual basis and was not an instructional employee , "no rule, statute or policy gave [Creel] the expectancy of continued employment beyond the fiscal year ending June 30, 1999." Accordingly, the ALJ ruled that the Board could properly terminate Creel's employment at the end of the fiscal year. This was error.
The ALJ was asked to determine whether the penalty of termination was too harsh for the circumstances. The ALJ acknowledged that this was the issue, setting forth in its recommended order that the issues for consideration were: "Whether [Creel], following his conviction for driving under the influence of alcohol, was properly terminated from his employment by [the Board] on January 29, 1999, [the date of the DUI conviction] and "Whether [Creel's] termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case." (Emphasis added). Rather than confining itself to the stated issues, however, the ALJ expanded the scope of the issues presented when it ruled that while termination on January 29, 1999, was not an appropriate penalty, the Board could properly terminate Creel as of June 30, 1999, because that was the end of the one-year contract between Creel and the Board.
Not only was the ALJ not asked to determine whether the Board could have properly terminated Creel at the conclusion of the June 30, 1999, contract period, there was no evidence as to what Creel's contract terms were, if indeed he had a contract. The issue was not tried by consent in this case, either. The transcript shows that the references, meager as they were, to Creel's employment terms were mere "asides," i.e., given as collateral information. There was no issue, evidence, or argument presented regarding whether Creel had a reasonable expectation of employment past June 30, 1999, a property interest in his employment, or a due process
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