STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1852

)

HAROLD THOMAS SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, and its duly appointed Hearing Officer, R. T. Carpenter, on April 15, 1981. The parties were represented by:

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

Suite 300, 3050 Biscayne Boulevard

Miami, Florida 33137

For Respondent: William Du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Petitioner seeks to discharge Respondent as a School Board of Dade County employee effective September 17, 1980, and to require Respondent to reimburse Petitioner in the amount of $2,951.41 in salary overpayments. The issue is whether or not Respondent knew that his masters degree was fraudulent and that the salary increase he obtained in recognition thereof was unwarranted.

FINDINGS OF FACT

1. Harold Thomas Scott obtained a bachelor of science degree in elementary education from Florida A & M University (FAMU) in 1961. He was employed by Petitioner, School Board of Dade County, as an elementary school teacher from 1961 until his suspension without pay in September, 1980.

   
   

2. Scott obtained nine graduate credits from FAMU by attending night classes in Miami in 1968 and 1969. He did no further work toward a valid masters degree after that time.

   
   

3. He met Eugene Sutton, a FAMU employee, during the 1977-78 school year when Sutton was in Miami to supervise FAMU students interning in education. Sutton discussed a "Graduate Independent Study Program" with Scott, and told him that he could obtain a masters degree working at his own pace in his own home. Sutton also held out the possibility that Scott could become a part-time educational consultant when he obtained the masters degree.

4. During the year following their meeting, Scott gave Sutton a total of

   $2,500 in cash and checks made payable to Sutton. This amount purportedly represented fees for tuition and "service." Although Scott knew this amount was substantially more than the cost of other graduate programs, he did not question Sutton on this point and obtained only a partial accounting for these fees.

   Exhibit 3, a receipt for $231 on FAMU form, was the only documentation offered at the hearing.

   
   

5. Scott has no contact with any instructor or FAMU representative other than Sutton. He received no course outline or syllabus and was not required to produce a thesis or dissertation, or take any written examinations. Scott prepared assignments given to him by Sutton which he delivered during Sutton's periodic visits to Miami. The assignments consisted mainly of assembling existing teaching materials in a manual or booklet format. Scott received no grades on these assignments nor was he aware of any specific courses which the work related to. He did, however, receive a FAMU transcript on completion of the program.

   
   

6. In late 1978 or early 1979, Sutton advised Scott that his degree had been awarded and that he had registered it with the State Department of Education. Scott then applied to Petitioner for the masters degree pay increase and began receiving the higher salary in March, 1979.

   
   

7. In September, 1980, Dade County School Board officials learned that Scott's masters degree was fraudulent and confronted him with this information. Scott offered to resign but was suspended instead. Scott concedes that he owes the $2,951.41 in salary overpayments demanded by Petitioner.

   
   

8. As a result of criminal charges filed in this and related cases, Scott was arrested in Dade County and ordered to Leon County to stand trial. He entered a plea of nolo contendere to a charge of uttering a forgery and received three years probation. Scott did not contest the criminal charge as he feared a prison sentence was probable if he had gone to trial and lost.

   
   

9. Respondent denies that he knew the masters degree he obtained was fraudulent. This denial is not credible in the circumstances of this case. Scott holds a bachelors degree from FAMU and had obtained nine graduate credits from that institution prior to his involvement with Sutton. Thus, he was thoroughly aware that university credits and degrees are awarded only upon meeting specific educational requirements.

   
   

10. Scott's familiarity with the education system, both as a student and as a teacher, precluded his deception by Sutton. The exorbitant fees, the manner of payment, the non-existence of course materials, the absence of faculty and the lack of any substantial academic requirements would have, and did in fact, alert Scott to the fraudulent nature of his undertaking.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. See Section 120.57(1), Florida Statutes (1979).

    
    

12. Petitioner charges that Respondent violated Section 831.02, Florida Statutes (1979), which provides in pertinent part:

    Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in

    s. 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be guilty of a felony of the third degree.

    
    

13. The masters degree and supporting transcript are false official documents which Respondent knew to be false and which he utilized to defraud Petitioner of $2,951.41 in salary payments he was not entitled to receive. Thus, Respondent is guilty of violating Section 831.02, Florida Statutes. 1/

    
    

14. Section 231.36(6), Florida Statutes (1979), provides to part:

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him

    must be based on immorality misconduct

    in office, incompetency, gross subordina- tion, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.

    
    

15. Scott's representation to Petitioner that he was the holder of a valid masters degree and his acceptance of the salary increase under false pretenses were offenses committed within the scope of his employment. Therefore, Respondent's wrongful acts constitute misconduct in office within the meaning of the above cited statute, and support Petitioner's request for termination of Respondent's employment.

    
    

16. Petitioner, by amended complaint, also seeks to base Respondent's termination on the provision of Section 231.36(6), Florida Statutes, cited above, which refers to conviction of a crime involving moral turpitude. 2/ Since resolution of this issue is unnecessary to the disposition of this matter, the requested determination is rejected.

    
    

17. Petitioner also charged Scott with bribery under Section 838.015, Florida Statutes (1979), which provides in part:

    
    

    "Bribery" means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or another, any pecuniary or other benefit with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public duty, or in performance of a public duty.

18. Sutton initiated the bogus degree scheme and sought out Scott, who was essentially a passive participant. Further, Sutton apparently intended to withhold from Scott the fraudulent nature of the scheme. Therefore, it cannot be said that Scott bribed Sutton within the meaning of the above statute.

RECOMMENDED ORDER

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Petitioner, School Board of Dade County, discharge Respondent Harold Thomas Scott as its employee effective September 17, 1980.

DONE AND ENTERED this 14th day of May, 1981 in Tallahassee, Leon County, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1981.

ENDNOTES

1/ Respondent plea of nolo contendere to a criminal charge of uttering a forgery was accepted in March, 1981, Case No. 80-1107, Second Judicial Circuit. However, this plea was not utilized as evidence in reaching the findings of guilt herein.

2/ A crime involves moral turpitude if it is an act of baseness, vileness, or depravity in the private and social duties that a man owes to his fellow men or to society in general." 14 Fla. Jur 2d, Criminal Law Section 1.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

William Du Fresne, Esquire 1782 One Biscayne Tower Miami, Florida 33131

Docket for Case No: 80-001852

Orders for Case No: 80-001852