STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-545

)

CERELLE PAULSON, )

)

Respondent. )

) DEPARTMENT OF EDUCATION and ) EDUCATION PRACTICES )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3069

)

CERELLE LANG PAULSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 13, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire School Board 3050 Biscayne Boulevard

of Dade County, 3000 Executive Building, Suite 300 Florida Miami, Florida 33137

For Petitioner: J. David Holder, Esquire Department of Post Office Box 1694 Education Tallahassee, Florida 32301

For Respondent: Sarah Lea Tobocman, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

These consolidated proceedings were initiated upon a Notice of Charges filed by the School Board of Dade County in April, 1982, alleging, in essence, that the Respondent, Cerelle Paulson, unlawfully, knowingly and fraudulently failed to disclose material facts used in making a determination as to her qualifications to receive aid or benefits under a state or federally funded assistance program, to wit: public assistance or food stamps from the Florida

Department of Health and Rehabilitative Services. More specifically, the school board alleges that the Respondent, on or about November 28, 1977, January 30, 1978, and March 21, 1978, in applications to the Department of Health and Rehabilitative Services for financial assistance, "did falsely state that she was not employed, when in fact she was employed by the School Board of Dade County, Florida," an alleged violation of Section 409.325, Florida Statutes.

The school board thus charges that the Respondent violated the provisions of Florida Statutes 231.36(6), by being guilty of "immorality." The school board seeks a dismissal of the Respondent with a concomitant denial of any claim for back pay.

Case Number 82-3069, filed by the Department of Education, Education Practices Commission, was initiated by that agency's filing of an Administrative Complaint on September 30, 1982, as amended on or about December 17, 1982, wherein it is charged that in pertinent part, that on or about November 28, 1977, January 30, 1978, and March 21, 1978, the Respondent applied to the Department of Health and Rehabilitative Services for food stamps, and on application forms, certified to the Department of Health and Rehabilitative Services (HRS), that she was unemployed, when in truth, according to the Petitioner, she was gainfully employed by the School Board of Dade County. She also allegedly certified that all information given on those application forms was true and correct and acknowledged that she would be obligated to report any changes in income immediately, and then willfully failed to report income earned. Thus, the Petitioner alleges that the Respondent was able to obtain

$887 in food stamps as a result of her failure to inform HRS of these material facts regarding gainful employment during the period December, 1977, through June, 1978, and that she was not legally entitled to that amount of food stamps. Accordingly, the Petitioner alleges that these acts constituted violations of Section 231.28, Florida Statutes, in that they are acts of gross immorality and moral turpitude and constitute conduct which seriously reduces the Respondent's effectiveness as an employee of the local school system.

The parties stipulated to consolidation of these cases. At the hearing, the Petitioner called three witnesses and offered seven-exhibits, all of which were received into evidence. Respondent called three witnesses and offered two documents, which were received into evidence. The Respondent's late Exhibit 3, consisting of a hearing decision of Administrative Law Judge James Henry, of the Social Security Administration, was received into evidence. Respondent's late Exhibit 4 is the letter of Ron Burnstein, Food Stamp Supervisor, dated August 10, 1978. That letter is received into evidence only pursuant to Section 120.58, Florida Statutes, in that it is hearsay, but is corroborative of the testimony of the Respondent, going to the issue of whether the Respondent failed to report income in a knowing effort to conceal or misrepresent the amount and nature of her income to HRS in applying for food stamp benefits.

The issue presented in these consolidated cases concerns whether the above- alleged acts were committed by the Respondent, and if so, with reference to the school board's action against her, whether those acts constitute "immorality," and with regard to the petition of the Department of Education, whether those acts constitute acts of moral turpitude, gross immorality and whether they seriously reduce her effectiveness as an employee in the local school system of Dade County.

FINDINGS OF FACT

1. The Respondent, Cerelle Paulson, holds a teaching certificate numbered 390656, authorizing the performance of substitute teaching, valid through June

   30, 1985. The Respondent was employed by the Dade County School Board (DCPS) at the time of her suspension and dismissal on or about February 17, 1982. The Petitioner Dade County School Board is a local school district and government agency charged with the hiring and regulation of the practice and conduct of school teachers and other personnel in its employ, with the concomitant power to dismiss teachers and other personnel from its employ upon good cause. The Petitioner Department of Education, Education Practices Commission is an agency of the State of Florida charged with licensure of teachers and with formulating, regulating and enforcing standards of practice and conduct for teachers so licensed.

   
   

2. The Respondent applied for food stamps with the Department of Health and Rehabilitative Services (HRS) on November 20, 1977; January 30, 1978; and March 21, 1978. The process for applying for food stamps involves two steps. First, the applicant must fill out an application; second, the applicant's application is reviewed and discussed with a food stamp eligibility worker. On each of the above dates, the Respondent was certified to receive food stamps for a prospective certification period of three months. On the food stamp application, the Respondent was required to fill out a section disclosing income and certify what income she expected to earn during the forthcoming certification period. The Respondent's food stamp applications, on the three dates involved herein, did not reveal that she listed any income from the DCPS. In fact, the Respondent did earn income through employment with the DCPS between November 28, 1977, and March 21, 1978, the period in question, as a substitute teacher. From November 28, 1977, through January 31, 1978, the Respondent was employed intermittently as a "regular" substitute. On January 31, 1978, her status was changed to that of "permanent" substitute for a period of time which terminated on March 3, 1978. From March 3, 1978, through March 21, 1978, she reverted to "regular" substitute teacher status for each day during that period that she worked for the DCPS. Respondent held a genuine belief that her income with the DCPS was irregular and that she was unable to project what her income would be in a prospective manner for each upcoming certification period, hence she did not fill in the income section on her food Stamp applications for the relevant periods. The nature of a job of "regular" substitute teacher is such that such a teacher is called either on the day of the job for which she is needed for one day's work or at the most, one day in advance. The Respondent was unable to project permanent substitute teaching income as a "permanent" substitute teacher for the period January 31, 1978 through March 3, 1978, because, upon giving a permanent substitute assignment, a person who has been a regular substitute theretofore must be transferred onto the regular payroll of DCPS, which is a process which typically involves a delay in the receipt of payment for that work for weeks or even months.

   
   

3. It is true that the Respondent did fill in the "income section" on her food stamp application forms, but she discussed the nature of her irregular employment with her food stamp eligibility workers or case workers assigned to her applications. She was told in those instances that she should provide only projected income which she could ascertain she would be earning on a regular basis. The Respondent also showed her past "payroll stubs" to her food stamp eligibility workers, at some point during the certification period, again being told that she had to project what she would make in order to include it on her application. The Respondent was aware of her duty to report changes in income and had, in the past, demonstrated a good faith attempt to do so as evidenced by her voluntary reporting of a change in her daughter's income, in approximately March, 1977, her daughter being a member of her household, and further, by her discussion on a number of occasions with her case workers of the impossibility of being able to project any income because of her intermittent substitute

   teaching. She was of the belief that only regular projectable income was reportable for food stamp application purposes. It was her understanding that her eligibility workers had informed her that they did not consider the DCPS income, which was unprojectable because of its intermittent irregular character, as countable for figuring eligibility for food stamps.

   
   

4. Jo Ann Colebrook (Petitioner's witness) interviewed the Respondent on November 28, 1977, regarding her eligibility for food stamps. This was the only occasion when Ms. Colebrook interviewed the Respondent and only with regard to the first of the three month certification periods in question. Ms. Colebrook, in espousing HRS's position that such DCPS income was reportable in figuring eligibility for food stamps, established the undisputed fact that the Respondent did not report that income, but admitted that she had no independent recollection of the conversation with the Respondent on that date and that her knowledge was based only upon her reference to records (Respondent's application and signed "rights and responsibilities" form submitted that day). She had no recollection of the specifics of the conversation with the Respondent on the only day she interviewed her.

   
   

5. The Respondent also held a genuine belief that her DCPS income was not legally "countable" for food stamp program purposes. She had this belief because her employment with DCPS was part of a "trial work period plan" which had been authorized for her by the Department of Vocational Rehabilitation as part of a plan approved by that department to ultimately help her to procure a teacher's certificate in order to teach and support herself. This plan was designed to help her become self-sufficient and overcome a disability for which she had been receiving social security benefits for a number of years. The claimant at the time was approximately 50-years of age with two children and had been disabled since 1973 with spinal arthritis. The Department of Vocational Rehabilitation had advised her in 1972 that if she maintained sufficient grades in one quarter of college, they would enroll her in a vocational rehabilitation program. This she did, maintaining a "B" average so that, in the second quarter of college, the Department of Vocational Rehabilitation began paying tuition as well as subsidization for books, gas and meals while she attended college. During the period in question in this case, the Respondent was in the process of an administrative appeal against the Social Security Administration seeking a determination as to whether her DCPS income was rightfully countable and could serve to diminish her social security benefits. Administrative Law Judge Henry entered an Order in May, 1978, on that issue. The judge in that order found that the undertaking by the Department of Vocational Rehabilitation to further her education so as to qualify her for a teaching job indicated that a "well- thought-out plan" had been initiated by that department projecting a college course at Florida International University preparatory to receiving a teaching certificate. The Respondent finished that course, but did not have quite enough requirements to obtain a teaching certificate and so completed her education at Barry College. The judge found that the circumstances surrounding the attendance at Florida International University and at Barry College and the subsidizing of tuition and books by the Department of Vocational Rehabilitation indicated a well-reasoned plan of self-support with substitute teaching providing support and serving to supplement courses being taken in order to prepare her for a degree. The judge then decided that the Respondent had earned income from substitute teaching which should not be considered in determining countable income for purposes determining further eligibility for full social security benefits, since such earned income was needed to fulfill an approved plan for self-support and education training under Department of Vocational Rehabilitation regulations. Thus, the Respondent believed her income from substitute teaching should similarly not be counted for food stamp purposes

   either. She informed her food stamp eligibility workers of this belief and when the administrative law judge issued his order, provided them with a copy of it and asked for a determination from HRS. In August, 1978, after the periods at issue herein, Ron Burnstein, Food Stamp Supervisor, ultimately informed her that HRS nevertheless considered that earned income to be reportable for food stamp eligibility purposes. Mr. Burnstein also informed her in that letter of August 10, 1978, that her case for food stamp purposes would remain active and previous notification to her that her case was closed could be disregarded. Thus, at least up until August 10, 1978, the Respondent held a genuine belief (as corroborated by that letter; Respondent's late Exhibit C) that her earned income with DCPS was not countable for purposes of determining eligibility for food stamps.

   
   

6. Thus, HRS ultimately took the position that the Respondent had been overpayed because of the hours worked for DCPS and not reported on the three subject applications. The overpayment was in the amount of $887. The Respondent learned, in 1982, that a refund would be required by HRS of the $887 and paid back the entire amount of the overpayment. Approximately four years elapsed before the Respondent was made aware that HRS demanded the overpayment refund. The Respondent never availed herself of her rights to a hearing with HRS concerning the question of overpayment, which right she was informed of on her "rights and responsibilities form," because for approximately four years after the now questioned payments, she was never aware that she had received anything to which she was not entitled.

   
   

7. Thus, although the Respondent did not disclose her income on the application forms for the purpose of receiving food stamps, she, on a number of occasions, discussed the fact that she was working intermittently and irregularly as a substitute teacher with her welfare eligibility case workers and all were informed that she was on the substitute teacher list for the DCPS. She did not report her income because she had a genuine belief that it was unreportable as not being regular income and not projectable. She did disclose the fact of her intermittent employment on a day-to-day basis as a substitute teacher.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

9. The Petitioner Dade County School Board has charged the Respondent, pursuant to Section 231.36(6), Florida Statutes, with "immorality." That section provides pertinently as follows:

   
   

   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.

   
   

   In this instance, the school board has attempted to show that the Respondent was guilty of "immorality" on the theory that the Respondent violated Florida Statutes Section 409.325 entitled "Fraud" which provides:

   1. Any person who knowingly:

      (a) Fails, by false statement, misrepre- sentation, impersonation or other fraudulent means, to disclose a material fact used in making a determination as to such person's qualification to receive aid or benefits under any state or federally funded assistance pro- gram . . . shall be punished as provided in subsection 5.

      
      

      Firstly, the school board has only charged the Respondent with falsely stating that she was not employed when she made application for welfare benefits. The school board has not charged the Respondent with failing to report income as a basis for its allegation that she committed a fraudulent act which constitutes immorality for purposes of Section 231.36(6). Thus, even had the Respondent concealed her income from the subject employment or a portion of it or otherwise misrepresented its nature to HRS, the school board's Notice of Charges does not allege anything about that conduct, merely alleging that she stated that she was not employed when in fact she was employed by the school board. Thus, if irregularities regarding reporting of income alone were proven, that conduct could not be the basis of a successful prosecution herein by the school board since it was not pled in the Notice of Charges. See, Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st DCA 1977).

      The Respondent's own testimony, as corroborated by Respondent's exhibits consisting of the administrative law judge's order and the letter by the supervisor of Social and Economic Services of HRS of August 10, 1978, reveals that she had a good faith belief that such intermittent, irregular, unprojectable income was not properly reportable for purposes of determining food stamp eligibility. The fact that she held this belief in good faith is further exemplified by the fact that she, on a number of occasions, discussed with her case workers the fact that she had this income on an occasional, irregular basis. Her failure to specifically report it and delineate it on her application forms is due, at least in part, to some representation by her case workers that she need only report "regular, projectable income," which she genuinely believed the subject income not to be. There simply was no showing of the required scienter or intent to commit a fraudulent or deceptive act because she was not shown to have knowingly failed to disclose information which was required to be disclosed. Her acts were merely grounded in a misunderstanding as to how she was to report future earnings, which she viewed as unprojectable.

      
      

10. The Petitioner Education Practices Commission has charged the Respondent in connection with the same conduct with being guilty of "gross immorality" or an act involving moral turpitude or guilty of conduct which seriously reduces her effectiveness as an employee of the school board, pursuant to Section 231.28, Florida Statutes, which provides as pertinent hereto:

    
    

    (4) It can be shown that such person . has been guilty of gross immorality or an act involving moral turpitude; . . . upon

    investigation has been found guilty of personal conduct which seriously reduces his effective- ness as an employee of the school board; .

    or has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

11. The above statutory section contains no definition of "gross immorality," however, guidance is afforded by Petitioner's Rule 6B-4.09(2), Florida Administrative Code, which defines immorality as "conduct that is inconsistent with the standards of public conscience and good morals, it is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." The term "gross" within the statutory term "gross immorality" is viewed as immorality involving acts which are serious rather than minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See, Education Practices Commission v. David Michael Knox, Case Number 81-056, Recommended Order, DOAH (May 18, 1981, Final Order entered June 29, 1981). See, also, Negrich v. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3rd DCA 1962).

    
    

12. "Moral turpitude" has been defined in State ex rel. Tullidge v. Hollingsworth, 146 So.2d 660, 661 (Fla. 1933):

    
    

    Moral turpitude involved the idea of inherent baseness or depravity in the private social relations or duties owed by man to man, or man to society. (citations omitted)

    
    

    It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves a question of intent, as when unintentionally committed through error of judgment when wrong was not contemplated. Id. (emphasis supplied) Moral turpitude has more recently been defined as a crime having as its essential element the intent of the perpetrator to defraud or deceive another. See, Winestock v. Immigration and Naturalization Service, 576 Fed.2d 234 (9th Cir. 1978).

    
    

13. The evidence adduced by the Petitioner does not establish that the act of failing to report all income received from the school board to HRS was done with any overt intent to defraud or deceive HRS or anyone for purposes of the above definitions of gross immorality or moral turpitude. The Respondent was shown to have neglected to report this income (although she clearly disclosed that she was occasionally employed as a substitute teacher) without any overt attempt to defraud or deceive another for purposes of the above definition of moral turpitude, gross immorality or immorality. The Respondent may have been guilty of confusion, misunderstanding or poor judgment, but her proof of her good faith belief regarding the status of her income based upon her discussions with her case workers, as well as her reliance on the administrative law judge's determination that such income was not reportable for social security purposes (albeit legally inapposite) establishes, in the face of the prima facia case adduced by the Petitioner, that indeed there was no actual element of scienter or specific fraudulent intent in the circumstances of the case at bar. Thus, with regard to the school board's charges that her conduct constituted "immorality" and, with regard to the Education Practices Commission's charges that this conduct constituted acts of gross immorality and moral turpitude, the undersigned must conclude that the Petitioners have not met their burden of proof. The failure to establish knowing intent to deceive, misrepresent or defraud obviates any conclusion that the act was so seriously inconsistent with standards of public conscience and good morals or sufficiently notorious as to bring the Respondent, as a member of the education profession, into public disgrace or disrespect so as to be considered gloss immorality or even immorality for purposes of the above-cited sections.

14. The Education Practices Commission has additionally charged that the subject conduct has seriously reduced her effectiveness as an employee of the school board. This Petitioner has failed to establish, as concluded above, any guilt of wrongful personal conduct by the Respondent since the Petitioner did not establish a willful failure to disclose income or employment in the food stamp application process. Thus, without an initial finding that some reprehensible conduct has been committed, one cannot reach the question of impaired effectiveness as an instructional employee and impair her licensure status under the above-cited clause regarding loss of effectiveness.

    
    

15. Aside from that, the testimony of Respondent's witness Marian Basile establishes that the Respondent, for many years, has been very anxious to become a teacher and to "make something of her life." Ms. Basile established that the Respondent has always been deeply concerned for her students and once bought a student a pair of shoes from her own salary for the simple purpose of befriending that student, and on another occasion tutored a student free of charge. The Respondent herself established that she has continued to work successfully as a substitute teacher and to take further courses in attempting to become a permanently certified full-time teacher. Further, even if the charges had been proven to be true, the acts which took place occurred totally outside of her school working environment and were shown to have no nexus (had they occurred) to the Respondent's performance at school as a substitute teacher. There has been no showing that the circumstances regarding the charges herein and the Respondent's application for food stamp benefits have been in any way published or made known to her co-workers at school, her students or the public generally (as for instance through any public record of criminal charges related thereto). The fact that there has been no evidence of any notoriety or communication regarding the conduct complained of to any co-workers, students, parents or members of the general public, coupled with the fact that the Respondent has taught successfully for almost six years as a substitute teacher since the period of time in question, belies the summary, uncorroborated statement of Witness Gray for the Petitioner, that he did not feel she was still effective as an instructional employee and would not recommend her rehiring. Thus, it has not been established that any conduct by the Respondent has seriously reduced her effectiveness as an employee of the school board.

    
    

16. In summary, it is the conclusion of the Hearing Officer that the Petitioners have failed to adduce substantial competent evidence sufficient to support the charges brought against the Respondent and that disciplinary action directed against her teaching certificate would be inappropriate under the circumstances.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the Respondent, Cerelle Paulson, be reinstated as an employee with the Dade County School System with the restoration of any back pay due her and that the Notice of Charges of the school board and the amended administrative complaint filed by the Department of Education, Education Practices Commission be DISMISSED.

DONE and ORDERED this 27th day of July, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF 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 27th day of July, 1983.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard

3000 Executive Bldg. - Suite 300

Miami, Florida 33137

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32301

Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Dr. Leonard Britton, Superintendent Dade County Public Schools

1410 Northeast Second Ave. Lindsey Hopkins Building Miami, Florida 33132

The Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000545

Orders for Case No: 82-000545