SCHOOL BOARD OF DADE COUNTY. )
vs. ) CASE NO. 81-949
Respondent. )
Pursuant to notice, this cause came on for hearing on August 4 and 5, 1981, before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, in Miami, Florida.
Phyllis O. Douglas, Esquire and Jesse J. McCrary, Jr., Esquire appeared on behalf of the Petitioner. Clinton J. Pitts Esquire and Thomas Murray, Esquire appeared on behalf of the Respondent.
By letter dated March 3, 1981, the Superintendent of Schools advised Respondent that he would recommend to the School Board of Dade County that Respondent be suspended from employment by the School Board on March 11, 1981, and that he he dismissed from employment by the School Hoard of Dade County for incompetency, immorality, and misconduct in office. Respondent timely requested a hearing pursuant to Section 120.57(1), Florida Statutes. Accordingly, the issue for determination herein is whether Respondent should be suspended and/or dismissed as an employee of the School Board.
Petitioner presented the testimony of David Rouen; James W. Cash, Sr.; Sanford E. Hershey, Sr. (by way of deposition) Cellostine Baughan; Joseph E. Wood; Benjamin Bowen; Harold A. Wheeler, and Leonard Britton. Additionally, Petitioner's Exhibits numbered 1 through 10 were admitted in evidence. The Respondent testified on his own behalf and presented the testimony of Tee S. Greer, Jr. Further, the prehearing stipulation filed by the parties hereto was admitted in evidence as Joint Exhibit numbered 1.
Both parties submitted post-hearing proposed findings of fact in the form of a recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
From approximately August, 1978, to August, 1980, Respondent held the position of Director, Department of Federal and State Relations in the Dade County School System. Prior to that, he was the assistant director in that department under the department's prior name.
During the period of time that Respondent held positions in that department, a program called the At-Home Program was being purchased by the school system. Continuances of this program were approved by the School Board either Prospectively or retroactively until March, 1978, at which time, upon the recommendation of the then-Superintendent, Dr. Johnny L. Jones, the School Board amended its rules to permit the Superintendent to negotiate purchases of instructional materials without Board action. The At-Home Program continued in the Dade County school system until May, 1980. During the 1977-78 contract year, Respondent approached David Rouen, the owner and operator of the At-Home Program, advised him that the Superintendent of Schools "needed help" and asked whether Mr. Rouen would he able to provide that "help." Solicitations of "help" for Superintendent Jones by Respondent occurred three (3) or four (4) times. Subsequent to the first solicitation however, Dr. Jones contacted Rouen directly, thanked him for his willingness to help and asked how much money Rouen could bring Jones. Rouen subsequently gave Jones cash and gifts amounting to approximately sixty or seventy thousand dollars.
Two of the solicitations by Respondent for Jones were made after Jones had started receiving money. Rouen did not believe that Respondent was aware that Jones was already receiving payments and he, therefore, did not pay much attention to the second and third solicitations. He deferred the question by asking Respondent how it could be done or specifically how much money the Superintendent needed.
In 1980, Respondent called Rouen early in the morning. Respondent advised that he was calling about the problems in Miami, and Rouen assumed that the Respondent meant the "Gold Plumbing" situation involving criminal charges against Jones. Respondent asked if Rouen could help the Superintendent and stated that the Superintendent was there. Jones then got on the telephone and asked Rouen what he could send. Rouen said he would send a thousand or two. Jones gave Rouen Jones' mother's address to which to forward the funds. Rouen placed the cash in the mail the following day to Jones' mother.
During the period of time that Respondent was employed in the Department of Federal and State Relations in the Dade County school system, he received gifts from Rouen, probably as a result of Jones' instruction to Rouen to give Respondent some "trinkets." Respondent received a television set with an approximate value of $89.00 and a radio with an approximate value of $20.00 according to Rouen, the giver of the gifts. Respondent acknowledges acceptance of these gifts. Rouen also gave Respondent a videotape recorder with an approximate value of $300.00 since it was used. On several occasions Respondent offered to pay Rouen for the recorder, and each time Rouen advised Respondent not to he concerned about payment. Between the time that Respondent received the recorder in 1979 and the formal hearing in this cause, Respondent never paid for the recorder. Further, he did not return the recorder when it became apparent that Rouen was not going to accept payment for it.
At all times that Respondent accepted gifts from Rouen, he was aware of a School Board rule prohibiting the acceptance of gifts of more than nominal value from School Board vendors.
In the fall of 1979, Rouen spoke with Respondent regarding some real property in which Rouen had an interest in Palm Coast, Florida. Rouen indicated that he had been attempting to sell the property, and Respondent stated that possibly he could sell the property for Rouen. Rouen advised that he would pay Respondent a standard fee of ten to fifteen percent for selling the property.
The value of the property was between seven and ten thousand dollars. Respondent has no license to sell real estate.
Subsequently, Respondent advised Rouen that he had a prospective buyer for Rouen's property, a James Cash. Rouen wrote to Palm Coast in October, 1979, advising that he had sold his property to James Cash and asking that Palm Coast forward whatever documents would he necessary to complete the transaction. Palm Coast responded on October 26, 1979, enclosing assignment papers transferring Rouen's interest in the property to Cash. Palm Coast directed Rouen to have all interested parties sign where indicated, have all signatures witnessed and notarized, and return all copies of the assignment to the Palm Coast office for final processing. Rouen and his wife signed the document and had it notarized in Baltimore, Maryland. The document was then delivered to Respondent.
The Reverend James Cash was a friend of Respondent. The two had spoken about Respondent's interest in obtaining some real property, and Cash had previously signed a letter regarding real property transactions at the request of Respondent. At that time Respondent told him that Cash's signature was necessary to save the home of a friend of Respondent.
In December, 1979, Respondent again came to Cash about signatures and this time advised Cash that he did not want the document notarized in Dade County. The two traveled to Broward County to have the form notarized there. While Cash did not read the document he did note that it had been previously signed by David Rouen and his wife in Baltimore, Maryland. James Cash signed the form and delivered it to Respondent. Cash was not of the belief that he was purchasing property from David Rouen. He simply signed the documents at his friend's request.
At about this time, various well-publicized problems involving Superintendent Jones arose in the Dade County school system and Rouen never heard anything further on the sale of his Palm Coast property.
Cash began to read articles in the local newspapers regarding allegedly fraudulent transactions involving Superintendent Jones and David Rouen. Respondent's name was mentioned. Cash became concerned and approached Respondent about the papers that he had signed. Respondent advised him not to worry, that someone had gotten rid of the papers. Cash approached Respondent several times with his concern about the papers, and Respondent eventually refused to talk with him about them.
While Director of the Department of Federal and State Relations, Respondent directed and coerced School Board employees to violate School Board administrative directives. In August, 1979, he attempted to obtain a manual check for the payment of several purchase orders issued to the At-Home Program. Harold Wheeler, Supervisor of Accounts Payable and Cost Analysis, refused to authorize the manual check since he questioned whether the goods had been received and whether Respondent had the authority to certify that the goods had been received. Respondent attempted to intimidate Wheeler into ignoring the improper procedures Respondent was utilizing by threatening to report Wheeler to Superintendent Jones.
Respondent directed School Board employees at the School Board warehouse to accept goods from the Bhards Publishing Company notwithstanding the fact that copies of the purchase orders for these materials were not provided to the warehouseman. Respondent was advised that there were no copies of the purchase orders and was asked to provide she purchase orders several times.
They were never produced. Rather, Respondent went to the receiving warehouse and directed that the materials be shipped to the schools. When Warehouse Supervisor Ben Bowen objected to sending the goods to the schools before being provided with purchase orders, Respondent told Bowen that if Bowen did not comply, Respondent would report him to Superintendent Jones. A similar threat was made to Bowen's superior.
When the Bhards materials arrived at the schools, personnel from several of the schools called to advise they had no knowledge they were to receive such materials. One school actually refused delivery.
Harold Wheeler and Ben Bowen were both annual contract employees. These employees were reasonably placed in fear of losing, at the least, their jobs by Respondent's threats to them that Respondent would report to Superintendent Jones their refusal to comply with Respondent's orders. The Superintendent of Schools has the power to not reappoint persons on annual contracts.
At all time material hereto, School Board Rules 6Gx13-3C-1.09 and 6Gx13-3C-1.14 were in effect and required that all School Board materials and commodities be purchased through the School Board Purchasing Department, which has been designated by the School Board as its official purchasing agent. This is in part so that it can be determined if funds for the purchase are available. No other persons are authorized to make purchases, except in limited circumstances not here applicable. Respondent admits he had no authority to authorize shipping goods without a purchase order, admits he had no authority to permit use of the School Board warehouse by non-School Board companies, and that it is not proper procedure to receive goods without a purchase order being issued for those goods.
However, in November, 1979, Respondent told Sanford Hershey, Director of Marketing and Sales for School Board vendor Random House Corporation, to ship six or seven hundred thousand dollars worth of materials to the school system notwithstanding the fact that no purchase orders bad been issued by the school system for these goods. The materials were shipped to the School Board in late November or early December, 1979. They were received in the School Board warehouse in December, 1979.
This unauthorized order first came to the attention of the school system when Cellostine Baughan, a purchasing agent in the school system's Purchasing Department, received incomplete requisitions for the materials in late November, 1979. In attempting to resolve the problem, she was advised by Respondent that he had invoices for the goods. The invoices were dated November 28, 1979. This indicated that the goods had been ordered and possibly shipped. The invoices all show that they were issued on a verbal order, and the School Board Purchasing Department did not place an order.
After realizing that the material had already been ordered, Baughan issued a purchase order for the goods. The purchase orders were issued January 24, 1980, approximately two (2) months after Respondent verbally obligated the school system for at least six hundred thousand dollars and after the materials had already been delivered to the schools.
Although Superintendent Jones had negotiated the contract for the purchase from Random House, his authority to negotiate a contract does not negate the requirement that all purchases, even after a price has been negotiated, must he made through the School Board Purchasing Department.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.
In accepting gifts of a television set, a radio, and a videotape recorder from David Rouen, Respondent has violated Rule 6Gx13-1C-1.08 of the School Board of Dade County, Florida, which prohibits accepting any gifts of more than nominal value from anyone doing business with the school system. Respondent, by these acts, has also violated Section 6B-1.03(2)(e) Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, which prohibits the acceptance of any gratuities, gifts or favors that might impair or appear to impair professional judgment, and Section 112.313(2), Florida Statutes, which prohibits any public employee to accept anything of value, including a gift or loan, that would cause a reasonably prudent person to he influenced in the discharge of official duties.
In soliciting funds for Johnny L. Jones from David Rouen, Respondent has aided and abetted Jones in violating School Board Rule 6Gx13-1C-1.08, and Section 6B-1.03(2)(a), Florida Administrative Code, and Section 112.313(2), Florida Statutes.
In enticing David Rouen to deliver to him an assignment of all his right and interest to real property by advising him that James Cash would purchase the property and by subsequently convincing James Cash to sign the assignment as the assignee--notwithstanding that James Cash had no intention of purchasing property--Respondent attempted to fraudently deprive David Rouen of his right, title and interest to real property in the state of Florida.
If the transaction concerning Rouen's property had been completed, and if Rouen had paid to Respondent as agreed a commission, Respondent would have violated Section 475.42, Florida Statutes, since he was not licensed to act as a real estate salesman in the state of Florida.
In threatening Harold Wheeler, Ben Bowen, and Bowen's supervisor in a manner which would reasonably cause them to fear the loss of their jobs, Respondent has violated Section 6B-1.04(2)(c), Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, by using coercive means to influence professional decisions of colleagues.
In directing Sanford Hershey of Random House Publishing Company to ship goods to the school system in November, 1979, notwithstanding the fact that no purchase orders for these goods had been issued by the school system, Respondent violated School Board of Dade County Rules 6Gx13-3C-1.14 and 6Gx13- 3C-1.09, Section 6A-1.12(1), Florida Administrative Code, and Section 237.02(3), Florida Statutes.
In directing School Board employees at the School Board warehouse to accept goods at that warehouse notwithstanding the fact that no purchase orders had been issued for those goods and the warehouse had received no copy of a purchase order, Respondent violated School Board Administrative Directive 15-2.
In directing School Board employees at the School Board warehouse to deliver from the School Board warehouse to various schools goods for which the warehouse had received no copy of a purchase order, Respondent violated School Board Administrative Directive 15-2.
Petitioner has met its burden of establishing by competent, substantial evidence that Respondent has acted in a manner which is immoral and incompetent and which constitutes misconduct in office.
Based upon the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that a final order be entered affirming the suspension of Respondent Edwin Demeritte and dismissing Respondent Edwin Demeritte from his employment with the School Board of Dade County, Florida.
RECOMMENDED this 12th day of May, 1982, in Tallahassee, Florida.
LINDA M. RIGOT
Filed with the clerk of the Division of Administrative Hearings this 12th day of May, 1982.
Phyllis O. Douglas, Esquire Assistant School Board Attorney Room 200
Lindsey Hopkins Building 1410 N.E. Second Avenue Miami, Florida 33132
Jesse J. McCrary, Jr., Esquire 3000 Executive Building
Clinton J. Pitts, Esquire Hubbart, Pitts and Wilson
Leonard M. Britton Superintendent of Schools Lindsey Hopkins Building 1410 N.E. Second Avenue Miami, Florida 33132
