STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-4649

)

LESLIE BUTLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 15, 1999, at West Palm Beach, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, Esquire

Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Boulevard Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Petitioner has cause to terminate the Respondent's employment as alleged in the Administrative Complaint dated October 20, 1998.

PRELIMINARY STATEMENT

Petitioner proposes to terminate Respondent's professional services contract following her plea of guilty to the criminal charge of exploitation of the elderly, a first degree felony.

At the same time she entered the plea to the felony charge, she also entered a plea of guilty to the charge of petit theft involving more than $100.00, a first degree misdemeanor. Both charges were brought against Respondent because of the manner in which she managed the finances of Lillie Keller, an elderly female who had given Respondent a power of attorney. Respondent timely challenged the proposed action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Florence Seay, Cynthia Robinson, James P. Kelly, Joanne K. Kaiser, Paul Lachance, Virginia Winn, and Annette Jarmon.

Ms. Seay is the great-niece of Lillie Keller. Detective Robinson is a deputy employed by the Palm Beach County Sheriff's Office. Chief Kelly is the chief of Petitioner's police department. Dr. Kaiser is Petitioner's Chief Personnel Officer. Mr. Lachance is employed by Petitioner's employment relations department. Ms. Winn is a social worker. Ms. Jarmon is employed by Home Health Care North. Petitioner presented the following exhibits (which were pre-marked): 1 (first three

pages only), 2, 3, 6, 7, 8, 9 (pages 29, 33, 34, and 35 only),

10, 11, 12, 14, 17, 18, 27, 29, and 31 (parts a-g). Official recognition was taken of all relevant statutes and rules, including Sections 231.02, 435.03, 435.07, 825.103, and 709.08, Florida Statutes, and Rules 6B-1.001(3), 6B-1.006(5)(a), and 6b-4.009, Florida Administrative Code.

Respondent testified on her own behalf and presented the additional testimony of Patricia Butler and John D. Shuman.

Ms. Butler is the Respondent's daughter. Father Shuman is a priest in the Anglican Catholic Church. Respondent presented two exhibits, both of which were accepted into evidence.

Respondent's Exhibit 2 is the deposition of Jason Dalley, the attorney who represented Respondent in the criminal proceeding.

A Transcript of the proceedings has been filed. The Petitioner and Respondent filed Proposed Recommended Orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On August 14, 1998, Respondent, a teacher employed by Petitioner, entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes. At the same time, Respondent also entered a plea of guilty to the

   charge of petit theft over $100.00, which is a first degree misdemeanor. In entering these pleas, Respondent advised the court, pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, that she believed the pleas were in her best interest and that she was maintaining her innocence to the charges. The court withheld adjudication of guilt as to the charge of exploitation of an elderly person, adjudicated her guilty of petit theft, sentenced her to one day of time served, placed her on probation for 20 years, and required that she pay restitution to the Estate of Lillie Keller in the amount of $52,000.00. 1/

2. By letter dated October 21, 1997, Petitioner reassigned Respondent to a position with no direct contact with children pending the outcome of the criminal charges. Following an investigation, the superintendent of schools recommended to the school board that Respondent's employment be suspended without pay and terminated. On October 7, 1998, the school board voted to adopt that recommendation. The recommendation and the subsequent vote to adopt the recommendation were based on Respondent's plea of guilty to the charge of exploitation of an elderly person.

3. Petitioner followed its procedural rules in investigating this matter and in voting to terminate Respondent's employment.

4. As of October 7, 1998, Respondent held a professional services contract and had been employed by Petitioner for approximately 13 years as a teacher.

5. Section 231.02(1), Florida Statutes, requires school board employees to be of good moral character. Respondent, as a teacher, is required by Section 231.02(2), Florida Statutes, to be fingerprinted and screened by the Florida Department of Law Enforcement.

6. Section 435.03(2), Florida Statutes, provides, in pertinent part, as follows:

   (2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:

   
   

   * * *

   
   

   (v) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony.

   
   

7. Petitioner's Rule 3.12, pertaining to criminal background checks of current and prospective employees, has been duly enacted and provides, in pertinent part, as follows:

   Definitions: For the purposes of this policy:

   
   

   * * *

   b. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld.

   
   

   * * *

   
   

   3. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes.

   
   

8. Section M of the collective bargaining agreement between the Petitioner and the Palm Beach County Classroom Teachers' Association provides for progressive discipline of covered employees such as Respondent. Section M provides, in pertinent part, as follows:

   1. Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.

      
      

      * * *

      
      

      7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:

      1. Verbal Reprimand With a Written Notation. . . .

      2. Written Reprimand. . . .

      3. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with the provisions of this Section, including just cause and applicable law. ...

      4. Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable law.

      
      

9. Section 435.06(2), Florida Statutes, requires an employing agency, such as the Petitioner, to take the following action when an employee has failed to meet the requirements of Section 435.03(2), Florida Statutes:

   1. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. 2/

      
      

      CONCLUSIONS OF LAW

      
      

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

11. Petitioner has the burden of proving it has just cause to terminate Respondent's employment by clear and convincing evidence as set forth in the collective bargaining agreement between Petitioner and the teacher's association.

12. Petitioner established by clear and convincing evidence that Respondent entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes, and a disqualifying offense pursuant to Section 435.03(2)(v), Florida Statutes. Because Respondent does not have (and does not seek in this proceeding) an exemption issued by Petitioner pursuant to Section 435.07, Florida Statutes, the provisions of Section 435.06(2), Florida Statutes, require that Respondent's employment as a teacher be terminated.

13. Respondent attempts to draw a distinction between a plea of guilty and a plea of guilty in her best interest. While there are differences between these pleas in some circumstances, there is no distinction between these pleas for the purposes of Section 435.03, Florida Statutes. Rule 3.170(a), Florida Rules of Criminal Procedure, provide for three types of pleas: not guilty, guilty, and nolo contendere. The plea of guilty in best interest comes from the requirement found in Rule 3.172(d), Florida Rules of Criminal Procedure, that the Court, in accepting a guilty plea, determine that the plea is voluntary and that the person entering the plea either acknowledges guilt or acknowledges that the plea is being entered in the person's best interest while that person maintains his or her innocence. The fact that a criminal defendant is permitted to assert his or

    her innocence in entering a plea of guilty to a criminal charge does not create a fourth type of plea for the purposes of Section 435.03, Florida Statutes. To reach the conclusion espoused by Respondent would frustrate the clear legislative intent and be contrary to fundamental principles of statutory construction. Likewise, the fact that the Court withheld adjudication of guilt to the felony charge of exploitation of the elderly is not relevant to whether the provisions of Section 435.03, Florida Statutes, have been triggered, because those provisions provide that a guilty plea is sufficient to trigger the disqualification. This conclusion is reached by a plain reading of the statutes involved and, although Petitioner's Rule

    3.12 is consistent with that interpretation, the conclusion is not dependent on that rule.

14. The provisions of Section M of the collective bargaining agreement pertaining to progressive discipline do not apply to this proceeding because, for the reasons set forth above, Section 435.06(2), Florida Statutes, requires that Respondent's employment as a teacher be terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that terminates Respondent's employment based on the findings of fact and conclusions of law contained herein.

DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999.

ENDNOTES

1 The following findings are made to help put this matter in context.

1. Pat Knutti and Lillie Keller were friends. Prior to her death in September, 1994, Ms. Knutti paid Ms. Keller's bills, kept her bank records, prepared her tax returns, and transported her to various appointments. Ms. Knutti had Ms. Keller as a dinner guest on a regular basis. Ms. Keller also became friends with the Respondent and Respondent's daughter, Patricia Butler.

2. Respondent is a college graduate with two masters degrees. In addition to her work as a teacher, Respondent worked at a bank for five years.

3. Patricia Butler is a college graduate who worked as a substitute teacher.

4. On October 6, 1994, when she was over 100 years old, Ms. Keller executed a durable power of attorney in favor of the Respondent. This instrument, prepared by Ms. Keller's attorney and executed in his presence, gave Respondent complete access to Ms. Keller's finances. This power of attorney was not solicited by Respondent.

5. Patricia Butler kept Ms. Keller's books during the period July 1995 through February 1997 (the subject period).

6. As the result of a complaint of alleged adult abuse in the form of exploitation, Cynthia Robinson, a deputy sheriff

   with the Palm Beach County Sheriff's Office, initiated an investigation. As part of her investigation, Deputy Robinson analyzed the credits and debits for Ms. Keller's bank accounts and the expenditures by Respondent and Ms. Butler as compared to their respective incomes during the subject period.

7. Ms. Keller's checking account (#3920492307) was with Barnett Bank. During the subject period checks totaling

   $180,242.14 were written to pay Ms. Keller's expenses. Those expenses were broken down as $158,490.50 for medical expenses,

   $12,475.08, for household expenses, $6,476.48 for food expenses, and $2,800.08 for miscellaneous expenses. Those were legitimate expenses and are not at issue in this proceeding.

8. During the subject period, 30 checks from the Barnett account were written directly to Respondent in the total amount of $52,283.61. Eighteen of those checks in the total amount of

   $42,186.61, were deposited in a Great Western Bank checking account (#6218081013) that was jointly owned by Respondent and Patricia Butler. Twelve of those checks, in the total amount of

   $10,097.00, were cashed.

9. During the subject period, 55 checks from the Barnett account were written to Patricia Butler in the total amount of

   $130,942.04. Forty-one of those checks, in the total amount of

   $97,848.32, were deposited in Ms. Butler's Great Western Bank checking account (#6218001011). Seven of those checks, in the total amount of $21,818.72, were deposited to Ms. Butler's Gold Coast Credit Union Account. Seven of those checks, in the total amount of $11,275.00, were cashed.

10. Of the 85 checks written to either Respondent or

    Ms. Butler, 38 were either written or endorsed by Respondent and the rest were written or endorsed by Ms. Butler.

11. Ms. Butler and Respondent testified that Respondent had no knowledge that Ms. Keller's funds were being misappropriated. Ms. Butler testified that she diverted the funds and hid the diversion from her mother. Ms. Butler explained that she managed Ms. Keller's books and told her mother the amounts that needed to be placed in her Barnett account to cover Ms. Keller's expenses. Ms. Butler and Respondent further testified that Ms. Butler reconciled Respondent's checking account and that she hid funds that were deposited into the joint account and subsequently withdrawn by Ms. Butler.

12. During the subject period, certificates of deposits (CDs) owned by Ms. Keller and withdrawals from her savings accounts were used by Respondent to fund the Barnett checking account transactions. Of the 17 transactions that resulted in a deposit to the Barnett account following a withdrawal from Ms. Keller's checking account or the cashing in of one of Ms. Keller's CDs, Respondent signed the paperwork for 15 of the

    transactions pursuant to her power of attorney, and Ms. Keller signed the paperwork for two of the transactions.

13. The amounts expended from the Barnett account for

    Ms. Keller's expenses totaled $180,242.14. The amounts diverted to either Respondent or her daughter during the subject period was approximately $189,000.00, which includes sums that were diverted to cash before being deposited in the Barnett account.

14. During the subject period, Respondent's credit card expenditures totaled $56,451.66, which exceeded her income from her employment.

15. Respondent knew generally the amounts of Ms. Keller's monthly expenses and she knew or should have known that the amounts being placed in the checking account greatly exceeded Ms. Keller's monthly expenses. She nevertheless continued to fund the checking account by using the power of attorney to cash CDs and make withdrawals from the savings account.

16. During the subject period, Respondent went on expensive trips to Disney World with her daughter, bought expensive jewelry, and charged more on her credit cards than she earned.

17. The criminal charges brought against Respondent and her daughter stemmed from the misappropriation of Ms. Keller's funds. There is little doubt that Respondent's daughter was more blameworthy than Respondent.

18. During the course of her employment by Petitioner, Respondent's job evaluations were satisfactory or above, and she had never been disciplined or counseled as a result of deficiencies in her job performance.

19. Respondent's dealing with Ms. Keller were unrelated to her employment duties with Petitioner.

20. Respondent maintained her innocence at the time she entered her pleas in the underlying criminal proceeding and subsequently.

2 An employee may seek an exemption from disqualification pursuant to Section 435.07(3), Florida Statutes, which provides as follows:

1. In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that

has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

Respondent has not been issued such an exemption and has not, in this proceeding, asserted her entitlement to an exemption pursuant to Section 435.07(3), Florida Statutes. This Recommended Order is not a determination on the merits of that issue.

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire Office of the General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

Ronald G. Meyer, Esquire Meyer & Brooks, P.A.

2544 Blairstone Pines Boulevard Post Office Box 1547 Tallahassee, Florida 32302

Dr. Joan P. Kowal, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-004649

Orders for Case No: 98-004649