STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-454

)

THOMAS M. WEBB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on September 10, 1982 and February 9, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Philip J. Montante, Jr., Esquire

1500 East Atlantic Boulevard Pompano Beach, Florida 33060

For Respondent: James A. Pearson, Esquire

PEARSON & SILVER

2435 Hollywood Boulevard

Hollywood, Florida 33020 BACKGROUND

These proceedings began on February 1, 1982 when William T. McFatter, as Superintendent of Schools for Broward County, Florida, filed a Petition for Dismissal from Broward County School System against Respondent Thomas M. Webb, to terminate his employment by the School Board of Broward County, Florida. On February 4, 1982 the School Board of Broward County suspended Respondent without pay and forwarded the case on February 12, 1982 to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. On March 3, 1982 Respondent filed an Answer to the Petition for Dismissal. On that same date he also filed a Motion to Dismiss the Petition. That Motion was denied by an Order of the Hearing Officer dated March 19, 1982 and the final hearing was scheduled for May 27 and 28, 1982. On May 24, 1982 Petitioner filed a Motion for Continuance which was granted. The case was rescheduled for September 10, 1982.

On June 14, 1982 Petitioner filed a Motion for Leave to Amend the Petition for Dismissal. The Motion was granted on July 12, 1982. On August 2, 1982 Petitioner served an Amended Petition for Dismissal. An Answer to the Amended Petition was not filed.

At the final hearing Petitioner presented the testimony of witnesses and offered Exhibits 1-11 which were received into evidence. Respondent presented the testimony of witnesses but did not offer any exhibits. At the close of Petitioner's evidentiary case-in-chief Respondent moved for an involuntary dismissal of the Petition. That Motion was denied.

Both parties have filed proposed Recommended Orders containing proposed findings of fact. To the extent that those proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.

Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).

FINDINGS OF FACT

1. The Respondent Thomas M. Webb is employed by the School Board of Broward County, Florida, as the Supervisor of Maintenance for the South Central Area Maintenance Department of the School District of Broward County. His responsibilities include the supervision of approximately 25 maintenance personnel who provide maintenance service to approximately 40 schools and teaching centers in the South Central Area. Mr. Webb held his present position during the 1980-81 school year on an annual contract of employment, the contents of which are not in evidence here. His present contract is also not in evidence.

   
   

2. Included among Mr. Webb's specific responsibilities are approving purchase orders for materials purchased or obtained by his subordinates for maintenance on school district facilities and buildings within the South Central Area.

   
   

3. During a routine audit of the Purchasing Department which was conducted by the Management Audit Department of the Broward County School District the auditors discovered that plumbing and sprinkler purchases by the South Central Area Maintenance Department for the 1980-81 school year were significantly in excess of similar purchases made by maintenance departments for comparable areas of the school district. They also discovered that over 50 percent of these purchases by the South Central Area were made on an emergency basis.

   
   

4. The auditors also discovered that $95,673 of sprinkler parts were purchased by one person, Mr. Lonnie Johnson, who is a mechanic in the South Central Area Maintenance Department under the supervision of Mr. Webb. Compared with parts purchased by other maintenance personnel this was a most extraordinary amount of sprinkler parts to be obtained by one person.

   
   

5. The school board policy for purchasing sprinkler supplies under $1,000 is for them to be obtained from the Purchasing Department 1/ or from an approved vendor who had bid for the school board's business pursuant to purchasing policy 3320.

   
   

6. Only in the case of a bona fide emergency is it proper for an employee such as Mr. Johnson to go to an "unapproved" vendor. 3/ In order to do so however, the employee must first obtain an "emergency purchase order" (also known as a non-purchase order payment authorization number) from his area supervisor, in this case Mr. Webb.

   
   

7. The procedure to be used for emergency purchases is described in the school board's standard practice bulletin number A-212, which has been in effect

   since August 1979. The standard practice bulletins are issued by the superintendent's office and are circulated to every school and every department director and supervisor including Mr. Webb.

   
   

8. Bulletin number A-212 expressly requires that regular purchases under

   $1,000 by a department must be processed by the Purchasing Department and the area superintendent must approve the request except for an emergency purchase as described above by garage or maintenance personnel.

   
   

9. During the 1980-81 school year Mr. Webb deviated from the Board's required purchasing policies as follows: A school would either send a written request or telephone request for maintenance work to Mr. Webb, who would then write out a work order. At regular intervals during the year Mr. Webb received a block of emergency purchase order numbers. He then sent a maintenance man, in all instances relevant here, Mr. Lonnie Johnson, to perform the requested maintenance work. Mr. Johnson was given the work order and an emergency purchase order number which authorized him to purchase materials from an outside vendor. In none of these cases did a true emergency exist. Mr. Johnson then purchased sprinkler supplies from either All Florida Nursery Irrigation and Supply Company or from Broward Pump and Supply Company, both of which were not approved vendors. These companies would then bill the purchases through invoices to the Maintenance Department. Upon their receipt Mr. Webb initialed the invoices to authorize payment which was then made in reliance on Mr. Webb's approval by the School Board of Broward County, Florida.

   
   

10. In innumerable instances Mr. Webb authorized the use of emergency purchase numbers to purchase sprinkler supplies from unapproved vendors as a matter of convenience and not because a true emergency existed requiring that supplies be obtained on short notice from a source other than the school district warehouse or from school district approved vendors. 4/ Prior to authorizing the use of emergency purchase numbers for the purchase of sprinkler parts Mr. Webb did not ascertain whether or not the required parts were available from either the school district warehouse or from approved vendors. Only when such sources were without supplies and a true emergency existed, was Mr. Webb authorized to allow the use of emergency purchase order numbers. Furthermore Mr. Webb did not check to insure that Mr. Johnson was following the school board's policies regarding the use of emergency purchase orders.

    
    

11. During the 1980-81 school year Mr. Webb authorized the purchase of sprinkler parts far in excess of those needed or actually used by the schools and teaching facilities within the South Central Area. For example on September 8, 1981 the Western High School requested through work order number 11558, the following parts:

    
    

    1 case of 36 PH2 sprinkler heads

    1 case of 36 1/2 inch to 3/4 inch PVC male adapters

    36 each of 1/2 inch and 3/4 nipples

    12 1/2 inch couplings

    12 3/4 inch couplings

    
    

    Mr. Johnson purchased a total of 400 sprinkler heads on September 8, 1981 from All Florida Nursery and Irrigation Supply Company. Mr. Webb approved payment for the 400 heads under work order number 11558.

    
    

12. In addition to approving such purchases Mr. Webb also allowed the use of yearly work orders. Under a yearly work order, no specific job site was specified and no specific number of parts were requested. A yearly work order

    became a blank check for Mr. Johnson to purchase as many sprinkler parts as he desired. He purchased many thousands of dollars of sprinkler parts under the yearly work orders with Mr. Webb's approval.

    
    

13. Mr. Webb does not know, and no credible evidence appears in the record for what happened to the excess sprinkler parts not actually used in the South Central Maintenance Area.

    
    

14. When Mr. Webb initialed the unapproved vendors' invoices for payment he did not check to determine that they did not exceed the amount of materials requested on the work orders under which the invoices were supposed to be authorized. This failure was a fundamental deviation from the School Board's purchasing policies.

    
    

15. By the foregoing acts Mr. Webb failed to fulfill his responsibilities as an area maintenance supervisor. Through his negligence the School Board paid approximately 10 to 20 percent more 5/ for the sprinklers purchased on a "emergency" basis than it would have paid if the parts were obtained from approved vendors or through the school district warehouse. As the result of Mr. Webb's negligence, Mr. Johnson was able to purchase at school district expense a simply incredible number of sprinkler parts which have never been accounted for.

    
    

16. While there was no showing that Mr. Webb deviated from the school district purchasing procedures with a criminal intent to deceive the School Board, or to materially benefit himself or others, the evidence is clear that his failure to monitor the purchase of sprinkler parts and his active approval of the inappropriate use of emergency purchasing procedures was a willful neglect of his responsibility to his employer.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

    
    

18. This case was tried on the allegations of the Amended Petition for Dismissal served on August 2, 1982. The Petition consists of nine counts, eight of which are similar for all practical purposes. Count I quoted here is an example:

    
    

    You are hereby charged with misconduct in office by issuing or causing to issue a work order dated January 19, 1981, for the purchase of equipment and/or supplies and/or parts in the amount of One Thousand Five Hundred Ninety and 38/100 Dollars ($1590,38) when in truth and in fact the total amount of equipment and/or supplies and/or parts purchased per invoice Nos. 043207, 040137, and 039226 were not used in furtherance of work order No.

    15831, which constitutes a falsification of records or official misconduct in violation of Florida Statutes 839.13, 839.25, and/or 231.36

    1. or negligence amounting to a willful neglect of duty in violation of 231.36(6).

       Count IX charges:

       
       

       You are hereby charged with misconduct in office by expending or causing to expend monies in excess of Two Thousand Four Hundred Dollars ($2,400.00) belonging to The School Board of Broward County, Florida, by issuing or causing to be issued "emergency purchase orders" in excess of Thirty-Seven Thousand Dollars ($37,000.00) which in truth and in fact said representation or designation constituted a falsification of records or misconduct in office or negligence amounting to a willful neglect of duty in violation of Florida Statutes 231.36(6) and/or 839.25 or

       839.13.

       
       

       Falsifying Records and Official Misconduct

       
       

19. Violations of Sections 839.25 and 839.13, Florida Statutes were not proven here. Petitioner has failed to allege any authority for dismissing Respondent for violations of those statutes. These are criminal statutes, the violation of which may not be adjudicated in the administrative forum. Rifkin

    v. Florida Real Estate Commission, 345 So.2d 349 (Fla. 4th DCA 1977). Even if a determination could be made here of whether a violation had occurred, Petitioner has failed to prove the "corrupt intent" required by Section 839.25, Florida Statutes or the criminally fraudulent falsification of documents required by Section 839.13, Florida Statutes. 6/

    
    

    Willful Neglect of Duty

    
    

20. The Amended Petition charges Respondent with violation of Section 231.36(6), Florida Statutes (1981) for a willful neglect of duty. Respondent has argued that because of his position as a maintenance supervisor he is not within the scope of that section and therefore cannot be dismissed pursuant to Chapter 231, Florida Statutes.

    
    

21. Section 231.36(6), states in its pertinent part:

    
    

    1. 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 insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. . .(Emphasis added)

       
       

       Section 231.36 was amended by Section 15, Chapter 82-242, Laws of Florida (1982). That amendment, effective July 1, 1982, is not applicable here because the acts charged in the Petition are alleged to have occurred in the 1980-81 school year.

22. Is Respondent a member of the district administrative or supervisory staff? For purposes of the School Code, Section 228.041(10), Florida Statutes defines "administrative personnel" as:

    
    

    Administrative personnel comprises the superintendent, supervisors, principals, and those persons who may be employed as professional administrative assistants to the superintendent or to the principal, but does not include secretarial, clerical, or other office assistants.

    1. Supervisor.--A supervisor is a non-school- based employee, qualified in accordance with s.231.15, who is assigned responsibility for working directly with teachers and other personnel in improvement of the instructional program.

    2. Principal.--A principal is an employee, qualified in accordance with s.231.15, who is assigned responsibility for administrative direction and instructional supervision at an individual school. For purposes of classification, he may be either:

       1. A building principal who is designated as the administrative head of a school; or

       2. An assistant principal who is assigned limited administrative and supervisory duties within a school.

    3. Professional administrative assistant.-- A professional administrative assistant is an employee assigned responsibility as an administrative or supervisory head of a support activity, noninstructional activity, or district-level function.

    
    

    Respondent is obviously not a principal. He is not a supervisor as defined (even though his job title is that of supervisor) because there is no evidence to show he is responsible for working directly with teachers and other personnel in the improvement of the instructional program. Furthermore he does not have a certificate issued under Section 231.15, Florida Statutes. Respondent's job functions do fall within the definition of "professional administrative assistant." As head of the South Central Area Maintenance Department he is a supervisory head of a support activity or noninstructional activity. Therefore conclude that Respondent is a member of the school district administrative staff and is subject to the provisions of Section 231.36(6), Florida Statutes (1981).

    
    

23. This conclusion is supported by prior precedent before the Division of Administrative Hearings. In Superintendent of Schools, Madison County v. Day, Case No. 82-2734, (Florida Division of Administrative Hearings, Recommended Order, March 11, 1983) Section 231.36(6) was applied to recommend the dismissal of the Director of Finance for the Madison County School District. In an earlier case a Hearing Officer recommended discipline against the Supervisor of School Bus Routes and Operations under this statute. School Board of Leon County, Florida v. Smith, Case No. 79-1367 (Florida Division of Administrative Hearings, Recommended Order, December 21, 1979), reviewed in Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). Section 231.36(6) was

    also used in the discipline of a Leon County School District systems analyst. See Reddick v. Leon County School Board, 405 So.2d 757 (Fla. 1st DCA 1981).

    
    

24. To sustain a charge of willful neglect of duty something more than simple negligence must be proven. An accidental mistake does not embody the element of willfulness required by Section 231.36(6). Petitioner has met its burden here. The evidence is clear and convincing that the use of emergency purchase numbers by Mr. Lonnie Johnson under the authority of Respondent Webb was not an accident. It was Respondent's intention to deviate from school board purchasing policies as a matter of convenience. Mr. Webb knew at the time he authorized the use of emergency purchase procedures that there was no emergency requiring immediate action. He also knew that when he initialed the unapproved vendors' invoices for payment under a work order that he had not checked the documents to insure that the materials actually purchased coincided with the materials authorized by the work orders. Mr. Webb's intentional failure to follow school board purchasing policies resulted in the Board's paying at least

$2,400 more for sprinkler parts than it would have paid if its policies had been followed. I therefore conclude that Mr. Webb has been guilty of willful neglect of his duty as alleged in Counts I through IX in the Amended Petition for Dismissal.

RECOMMENDATION

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

That the School Board of Broward County, Florida, enter a Final Order discharging Respondent Thomas M. Webb from employment effective February 4, 1982.

DONE and RECOMMENDED this 23rd day of May, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

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 23rd day of May, 1983.

ENDNOTES

1/ Also known among the maintenance personnel as the "warehouse."

2/ An emergency is an event where there is a serious and immediate threat to students, staff, or the property of the school district which must be rapidly repaired.

3/ That is one not approved through the bidding process by the School Board.

4/ Some of the work orders show on their face that an emergency did not exist. In one instance the work order was dated January 19, 1981, but the sprinkler parts were not even obtained from the unapproved vendor until May 20, 1981.

5/ Or at least $2,400 more on the parts represented by the invoices in evidence.

6/ I note that these statutes were not relied upon by Petitioner in its proposed Recommended Order for dismissal of Respondent.

COPIES FURNISHED:

Philip J. Montante, Jr., Esquire 1500 East Atlantic Boulevard Pompano Beach, Florida 33060

James A. Pearson, Esquire PEARSON & SILVER

2435 Hollywood Boulevard

Hollywood, Florida 33020

William T. McFatter Superintendent of Schools Broward County School Board 1320 Southwest 4th Street

Fort Lauderdale, Florida 33312

Donald J. Samuels, Chairman School Board of Broward County 1320 Southwest 4th Street

Fort Lauderdale, Florida 33312

Docket for Case No: 82-000454

Orders for Case No: 82-000454