vs. ) CASE NO. 89-2022
Respondent. )
Upon due notice, this cause came on for formal hearing on September 20, 1989 in Madison, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
For Respondent: John R. Weed, P.A.
Petitioner presented the oral testimony of the Respondent as an adverse witness, of School Superintendent Gene Stokes, and of County Judge Wetzel Blair, and had one exhibit admitted in evidence. Respondent testified on his own behalf and recalled Gene Stokes. Respondent's Exhibit 1 was not admitted in evidence. HO Exhibit 1 and Joint Exhibits 1-A and 1-B were admitted in evidence.
Prior to formal hearing, the parties filed a joint Prehearing Stipulation (HO Exhibit 1) which has been utilized to the extent appropriate in the preparation of this Recommended Order.
A transcript of proceedings was filed in due course. The parties' respective timely-filed proposed findings of fact have been ruled upon, pursuant to Section 120.59(2) F.S., in the Appendix to this Recommended Order.
Petitioner, Gene Stokes, is the duly elected Superintendent of Schools of Madison County, Florida.
Respondent, Doctor Randall Choice, III, is a member of the instructional staff of the district School Board of Madison County, Florida, employed by the Board under a continuing contract entered into on May 7, 1981.
The Respondent was charged in an information filed by the State Attorney of the Third Judicial Circuit on June 27, 1988 with passing a worthless check, the payee being the Madison Inn, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $106.00. There were not sufficient funds in the account to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment.
The Respondent was charged in an information filed by the state attorney of the Third Judicial Circuit on September 12, 1988 with passing a worthless check, the payee being Perry Coca Cola, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $61.60. There were not sufficient funds in the account of the Respondent to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment.
The check given to the Madison Inn was for lodging and the check to Perry Coca Cola was for products which the Respondent had received. Neither transaction had anything to do with Respondent's professional activities as a school teacher.
The Respondent appeared before the Honorable Wetzel Blair, County Judge of Madison County, Florida, on November 2, 1988 and entered a plea of "guilty" to the two informations noted above.
The court at that time gave the Respondent the opportunity to make restitution on the two checks and to pay court costs of $46.00 within 30 days. If the Respondent made the restitution and paid the court costs within the prescribed time, the court agreed to withhold adjudication.
The Respondent executed the offer of a plea of "guilty", but nonetheless, the court set the matter for trial on December 2, 1988 upon a plea of "not guilty." This "Order Setting Trial" was signed by the judge on November 2, 1988, and stated:
Order setting trial date upon the above and foregoing plea of not guilty, trial of this case is set for non-jury trial, on `Friday, December 2, 1988 at 9:00 a.m. [Tr-51-72].
The Respondent did not pay the restitution or court costs within the 30-day period as directed by the Court, and, accordingly, the Respondent was ordered to appear before the Court on January 4, 1989. At that time, the court entered another order reciting that the Respondent had entered a plea of "guilty" on November 2, 1988 and had been directed to pay restitution for the checks in the cases within 30 days. The latter order further recited the fact that the Respondent had paid the restitution, but not within the stipulated time, and that Respondent was therefore sentenced to 30 days in the Madison County Jail.
Upon the testimony of Madison County Judge Wetzel Blair, it is found that as of the date of formal administrative hearing, September 20, 1989, Respondent had not been adjudicated guilty of the crime of passing a worthless bank check, even though he was incarcerated in the Madison County Jail from January 4, 1989 until about 4:00 p.m. on January 23, 1989. (TR- 78)
On January 4, 1989, the Respondent teacher immediately notified his principal, Mrs. Colleen Campbell, by telephone that he was in jail and that he needed to be granted leave for the period he would be incarcerated, predicted at
30 days. She informed Respondent that he had six days of accrued leave due him and agreed to sign she form requesting/approving that period of leave. She also informed Superintendent Stokes that Respondent was in jail, but she provided no written request for leave for Respondent beyond tee six days to which he was entitled. The superintendent did not know of Respondent's oral request for additional leave until Respondent was released from jail.
The principal and superintendent have the authority to approve personal leave up to a teacher's accrued limit, but if insufficient personal leave time has been accumulated, the school board must approve the overage. It is unclear from the record whether preprinted forms are provided for this purpose, but apparently such requests must be made in writing. It is also unclear whether such requests are always submitted directly to the school board or if principals and the superintendent act as conduits for such requests to the school board. However, such written leave requests are usually taken up at each monthly school board meeting, which is often "after the fact" of the requesting teacher's physical absence. Sometimes, the applicant appears at the school board meeting in person.
Respondent was released from jail or January 23, 1989 at 4:00 p.m.. On January 24, 1989, the Respondent reported personally to the superintendent, reported his release from jail, and sought to determine his leave status, At that time, the superintendent informed the Respondent that the superintendent was suspending the Respondent with pay until the next school board meeting. Also, the superintendent then informed the Respondent that the superintendent was reporting Respondent's conduct to the Education Practices Commission. The superintendent did then specifically inform the Respondent that he had been absent without leave, as it was presumed the Respondent had been incarcerated for passing worthless bank checks, and that was the thrust of their conversation.
At all times during his incarceration of 19 days, the Respondent believed that he had taken the necessary steps to obtain authorized leave, and he assumed, without any affirmative action by the principal, superintendent, or school board that he had been approved for leave with pay up to his accrued six days and for leave without pay for the remainder of the incarceration period. Respondent was incarcerated January 5-23, 1989, inclusive. Resort to a calendar
reveals that only 12 of Respondent's 19-day incarceration were week days or work days (One was Martin Luther King's Birthday Holiday.) Respondent was, in fact, approved for his six accrued leave days. Therefore, the balance that Respondent was actually absent without leave amounted to only six days.
Neither Superintendent Stokes nor the school board, as a collegiate body, approved Respondent's oral request for leave without pay during the six days in question. Indeed, the school board did not convene until February, when, at the superintendent's request, it altered his suspension of Respondent with pay to a suspension without play.
Respondent did not file any after-the-fact written request for leave without pay and present it to the school board when it met in February 1989 to consider the suspension request, although it may be inferred that the school board's suspension of Respondent had the retroactive effect of denying his oral leave request.
The citizens of Madison County believe that the passing of a worthless check is morally wrong.
The incarceration of the Respondent was not reported in any of the newspapers in the circulation area.
There is evidence in the record that Respondent's absence created administrative problems for the superintendent and school board and interfered with the orderly education of students, although most of this disorder relates to the period after the Respondent's suspension, not during his short incarceration period.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57 F.S.
Petitioner must prove all of the material allegations of the Petition for Discharge by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987).
Petitioner has failed to establish that Respondent engaged in a "pattern" of issuing checks drawn upon various and sundry banks in which he did not have sufficient funds to pay said checks as alleged in Paragraph 3 of the Petition for Discharge.
With regard to the 1988-1989 charges of passing worthless bank checks, and the pleas, restitution, and incarceration related to them the uncontroverted facts are clear. The Respondent pled guilty to two counts of passing worthless bank checks. He was never adjudicated guilty, but he was apparently incarcerated even though he had made restitution and paid court costs pursuant to a plea bargain because his restitution was untimely pursuant to the terms of his agreement with the State Attorney and the County Court. Because there has been no adjudication of "guilty," there has been no "conviction." See, Accredited Surety and Casualty Co., Inc. v. State, 318 So.2d 554 (1st DCA 1975), Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla. 1962), Weathers v. State,
56 So.2d 536 (Fla. 1952), Smith v. State, 78 So. 530 (Fla. 19 18), Daughterty v. State, 35 So. 397 (Fla. 1903). Therefore, its is unnecessary to address whether conviction of a crime of passing a worthless bank check constitutes a crime of moral turpitude.
The language employed in Section 231.36(4)(c) F.S. is likewise abundantly clear. Unlike many other types of professional disciplinary statutes, this section addresses ONLY "a conviction of a crime of moral turpitude." It does not address pleas of "guilty," "not guilty," or "nolo contendere." It provides as follows:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
Without broader disciplinary language which would permit a contrary determination, it must be concluded that Petitioner has not established by clear and convincing evidence that Respondent has been convicted of a crime of moral turpitude.
The issue of absence without leave is equally clear. Section 231.44
F.S. provides, in pertinent part, as follows:
Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.
Respondent has tried to avoid his clear violation of being absent without leave by stating that he asked for sufficient leave from his principal when he called her from the jail. As a professional educator employed eight years under a continuing contract in the same school system since 1981, Respondent must know or be presumed to know from whom he is to secure proper leave, the correct-procedure for doing so, and all other matters and things related to his professional employment. Moreover, he admitted that he knew the most leave he might be entitled to for the work days he actually missed during his 19 days' incarceration would be six days accrued leave (non-discretionary) and the other leave would have to be leave without pay. Authorization of leave without pay is discretionary, not mandatory, with the school board. Respondent had no right or credible reason to assume such leave had been granted, even if he could reasonably assume the principal had relayed his oral leave request to the school board. In so finding, the undersigned specifically rejects as not credible and as unreasonable Respondent's theory, expressed at formal hearing, that because the School Board issued him monthly pay statements during his suspension showing him to be on leave without pay, it had "approved" leave for him. Likewise, it was unreasonable, in light of all the evidence, for Respondent to view a similar pay statement covering his incarceration period as "approval" of the unauthorized leave he had taken. It was incumbent upon Respondent to make his request for leave without pay in writing to the school board and to see to it that his written request was considered, even in retrospect if necessary, at the school board's next (February 1989) meeting.
The language "willfully absent from duty without leave" cannot be presumed to apply only to whether or not Respondent willed himself to be incarcerated. Obviously, he did not. However, he willed the series of acts which set in motion the chain of events which eventually resulted in his incarceration: writing the checks, pleading guilty, and not making timely restitution pursuant to the November 2, 1988 court order. Given the moral sensibilities of the community, it is doubtful he would have been granted the necessary leave without pay had he requested it of the school board, but Respondent did not follow the appropriate method to request such leave, let alone actually secure authorized leave. Under such circumstances, Petitioner has met its burden to show willful absence.
While willful absence may subject a teacher to termination, such a result seems unduly harsh for only six days' actual unauthorized absence since the Respondent made some effort to secure the leave, since the principal and superintendent both knew the Respondent's situation and took no steps either to advise Respondent of his next step or to advise the school board of the situation, since the school board did not even meet during the period of incarceration, and since it was common practice for the school board to consider leave without pay requests in retrospect, anyway.
Accordingly, a more appropriate discipline would be that Respondent be suspended without pay, commencing with the first day he became absent without leave and concluding at the end of the current school year.
Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that:
The school Board of Madison County enter a Final Order finding that Respondent has not violated Section 231.36(4)(c) F.S., in that he has not been convicted of a crime of moral turpitude, and that Respondent has violated Section 231.44 F.S., by being willfully absent from duty without leave, and suspending him without pay from the first day of his absence without leave until the conclusion of the current school year.
DONE and ENTERED this 2nd day of January 1990 at Tallahassee, Florida.
ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
2nd day of January, 1990.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1445
F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:
1, 2, 6 and 7 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate and/or unnecessary-material.
8 is rejected as a conclusion of law, not a finding of fact.
1-16 and 18-24 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate, unnecessary, or cumulative material.
17 is rejected because it is contrary to the record as stated.
Edwin B. Browning, Jr., Esquire Post Office Drawer 652
John R. Weed, P.A.
