STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1758

)

THOMAS KELLY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, pursuant to notice, on January 26, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

BERG AND HOLDER

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: No appearance.

This cause was initiated on the Petition for Revocation of a Teacher's Certificate filed by the Petitioner on July 8, 1981. The Petitioner alleges that the Respondent repeatedly misappropriated school funds for his personal use. Pursuant to the authority of Rule 6A-4.37, Florida Administrative Code, the Department conducted an inquiry into the matter and ultimately on November 5, 1979, the Commissioner of Education found probable cause and directed the filing of the Petition. Specifically, it is alleged that on various dates in 1978 and 1979, the Respondent received checks from various individuals as payment for upholstery work to be done by the Respondent and his students in the furniture upholstery class he taught at Westside Vocational Technical Center in Winter Garden, Florida. It is alleged that these monies rightfully belong to the Orange County School Board and that the Respondent converted them or a portion of them to his personal use. Accordingly, the Petitioner maintains that such conduct violates Section 231.28 and Section 231.09, Florida Statutes, in that it constitutes conduct grossly immoral, inconsistent with good morals and the public conscience and conduct which is not a proper example for students and conduct which is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect. Accordingly, the Petitioner seeks revocation or suspension of the Respondent's certificate.

No election of rights nor other form of request for a formal proceeding has ever been received by the Petitioner or the undersigned from the Respondent.

Thus, the pleadings thus far filed in this cause do not reflect a dispute of the material facts alleged in the Petition; however, pursuant to Rule 6B-11.03(3), Florida Administrative Code, the Petitioner is required to go to formal hearing

and present a prima facie case, even in a default situation such as this where service is obtained by publication, as was the case herein, after diligent search and inquiry failed to reveal the whereabouts of the Respondent and all attempts to serve the Respondent by mail were returned undeliverable, unclaimed and unforwardable. Thus, pursuant to this rule as well as Section 231.262(5), Florida Statutes (1980 Supp.), and Rule 22I-2.23, Florida Administrative Code, Petitioner proceeded to present testimony of two (2) witnesses, James Scaggs and Frank House, by way of complying with its burden of proving a prima facie case.

A hearing was held on the above date at which the Respondent failed to appear and subsequent thereto, on March 3, 1982, the Petitioner informed the undersigned that the Petitioner had elected not to obtain a transcript of the proceedings. The Petitioner waived its right to submit proposed findings of fact and conclusions of law subsequent to the hearing.

FINDINGS OF FACT

1. Thomas Pelley, the Respondent, holds Florida Teaching Certificate No. 318598, Standard, Rank III, valid through June 30, 1982, covering the area of furniture repair.

   
   

2. The Respondent was employed during the 1978-79 school year in the public schools of Orange County at the Westside Adult Center in Winter Garden, Florida, as an instructor in furniture upholstery.

   
   

3. The then Florida Professional Practices Council received a report from officials of the Orange County School System indicating that the Respondent had allegedly misappropriated school funds to his personal use. Pursuant to Rule 6A-4.37, Florida Administrative Code, an inquiry was conducted into the matter and a report made to the Professional Practices Council which culminated in the Commissioner of Education finding probable cause to file a proceeding against the Respondent, which probable cause finding was entered on November 5, 1979.

   
   

4. The Respondent and his students typically engaged in the repair and re- upholstery of furniture brought in by members of the public at a reduced price as part of the training program in the occupation of re-upholstery. The procedure for payment for this re-upholstery work was that the customers wrote a check after Mr. Pelley wrote a "training order" and then Mr. Pelley was to submit the customer's money to the school bookkeeper in order to requisition material for the re-upholstery work involved. At the conclusion of the job the customer would come to the school office and pay for whatever charges were left for the labor and take custody of the furniture.

   
   

5. Mr. Pelley did not comply with that procedure, however, with regard to customers Vicki Teal, Carol Johnson, and Winifred Good. In these instances involving work done for these customers, the Respondent was paid by the customers directly. The Respondent was fully informed of the proper procedure for payment by the customers for upholstery work.

   
   

6. Customer Vicki Teal complained on one occasion that a sofa she had left to be re-upholstered had the wrong material installed on it and that Mr. Pelley had refused to replace the materials with those that she had actually ordered. Ms. Good and Ms. Johnson similarly complained about the workmanship on the furniture they had left to be repaired. With all three of these customers, the office personnel at the school discovered that they had no record that the customers had ever ordered work to be done by the Respondent and his students, nor that they had purchased anything, until they came forward with their cancel

   led checks for the same. Each of the checks was endorsed by Mr. Pelley. The subject checks from these three customers totaled $515.29, the funds represented which were received by the Respondent and never turned over to officials of the school, the bookkeeper of the school nor anyone employed by the Orange County School Board for proper accounting and use. Rather, the Respondent converted all of the monies collected to his own personal use.

   
   

7. Witness House, who worked with the Respondent at the same school and who was his superior, has had long experience in the education profession and in teaching and dealing with students. He established that such conduct is not a proper example to students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, especially in view of the several members of the public directly involved and victimized by the Respondent's misdeeds. It should be pointed out that at the times pertinent hereto, the Respondent was in severe financial straits due to medical expenses incurred by his wife being stricken with cancer.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

9. There is obviously no question, given the evidence adduced by the Petitioner (which was unrefuted, since the Respondent failed to appear), that the facts alleged in the Petition filed herein regarding the conversion of certain School Board funds represented by the checks issued by upholstery customers during 1978 and 1979, have been established. The undersigned thus concludes that the Petitioner has presented competent, substantial evidence to sustain the charge against the Respondent regarding the conversion of these funds to his own use.

   
   

10. The Petitioner contends that the facts alleged constitute conduct which is grossly immoral, which is inconsistent with good morals in the public conscience, which fails to set a proper example for students and which is conduct sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, thus providing grounds for suspension or revocation of the Respondent's teaching certificate under Sections

    231.28 and 231.09, Florida Statutes, as well as Chapter 6B-1, Florida Administrative Code. Evidence was presented by the Petitioner through the testimony of witness House establishing his intimate knowledge of the conduct involved and the reprehensible nature of it, as well as the fact that the three members of the public who were directly victimized were obviously aware of the Respondent's conduct and its reprehensible nature as to constitute competent, substantial evidence which establishes the notoriety of that conduct such that it tends to bring the Respondent and the education profession into public disgrace and disrespect.

    
    

11. The Petitioner has also demonstrated that the Respondent has engaged in gross immorality and an act involving moral turpitude and which is inconsistent with good morals and the public conscience. He has thereby seriously reduced his effectiveness as an employee of the School Board. Section 231.28(1), Florida Statutes. Such conduct, obviously, does not provide a proper example for students as required by Section 231.09(2), Florida Statutes. Having clearly and adequately and unrefutedly demonstrated that the Respondent is guilty of gross immorality or an act involving moral trupitude and personal conduct which seriously reduces his effectiveness as a teacher, the Petitioner

has the authority, pursuant to Section 231.28, Florida Statutes, to take the following disciplinary action againt the Respondent's Teaching Certificate: suspension not to exceed three years, revocation, not to exceed ten years, and permanent revocation.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, and pleadings and arguments of counsel for the Petitioner, it is, therefore,

RECOMMENDED:

That Respondent be found guilty of wrongfully converting monies to his own use that rightfully belonged to the Orange County School Board, which conduct constitutes gross immorality or an act involving moral turpitude and seriously reduces the Respondent's effectiveness as an employee of the School Board; and that the Respondent's Teaching Certificate be revoked for one (1) year.

DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of th Division of Administrative Hearing this 19th day of March, 1982.

COPIES FURNISHED:

J. David Holder, Esquire BERG AND HOLDER

Post Office Box 1694 Tallahassee, Florida 32302

Mr. Thomas Pelley

149 Silver Star Road Ocoee, Florida 32761

Donald L. Griesheimer Executive Director

Education Practices Commission Department of Education

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-001758

Orders for Case No: 81-001758