STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BREVARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2217

)

HARVEY J. WILCOX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on December 16 and 17, 1981, in Cocoa, Florida. The following appearances were entered: Joyous D. Parrish, Cocoa, Florida, appeared on behalf of the Petitioner, School Board of Brevard County; and George Ritchie and William R. Clifton, Cocoa, Florida, appeared on behalf of the Respondent, Harvey

J. Wilcox.

On or about August 25, 1981, the School Board of Brevard County, Florida, issued a Statement of Charges against its employee, the Respondent, Harvey J. Wilcox. The Respondent was charged with misuse of School Board equipment and employees and with mishandling School Board funds. Respondent requested a formal administrative hearing. On September 8, 1981, the School Board filed a request with the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled by notice dated October 12, 1981. The Respondent filed a Motion for More Definite Statement which was denied by Order entered November 18, 1981.

At the final hearing, the School Board called the following witnesses: Abe Collinsworth, the Board's Assistant Superintendent for Personnel; Thomas Daniel Evans, Jr., the principal of an elementary school located in Brevard County, and the former director of the School Board's warehouse operation; Willard Simpson, the Board's Assistant Superintendent for Facilities and Support Services; John Forbes, the Board's Assistant Superintendent for Business and Fiscal Services; Irene Howard, an accounting clerk employed at the Board's warehouse; Paul Green, who was formerly employed as a storage clerk in the Board's warehouse; Charles

1. Green, Jr., the witness Paul Green's father; Arthur J. Brannan, who was formerly employed as a storage clerk at the Board's warehouse; Kevin Kelly, a storage clerk employed at the Board's warehouse; Bill H. Schwart, the Board's Chief of Plant and Personnel Security; Gordon Crouch, the Board's Central Area Superintendent; and Vincent Vescio, formerly the Board's Supervisor of Property Control. The Respondent called the following witnesses: Robert E. Barrett, the Director of Labor Relations and Chief Negotiator for the Board; Juanita Kelly, an auditor employed by the School Board; and Elaine LeClerc, an auditor employed by the Board. Petitioner's Exhibits 1 through 5 and 7 and 8 were offered into evidence and received. Petitioner' a Exhibit 6 was offered into evidence and rejected. The parties have submitted post-hearing memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are specifically

   included in the findings and conclusions which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or erroneous as a matter of law.

   
   

   The issues in this proceeding are whether the Respondent has misused School Board equipment and employees, and mishandled School Board funds and, if so, whether he should be terminated or suspended from his employment with the School Board, or otherwise disciplined.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent has been employed with the Brevard County School Board for approximately nineteen years. Before he was suspended in connection with this proceeding, he held the position of Warehouse Coordinator. The warehouse maintained by the School Board houses various operations. Its basic function is to store and distribute goods. The School System's film library, textbooks, courier service, media center, and transportation and maintenance parts department are all operated at the warehouse. Among specific warehouse functions is the sale of salvage goods.

      
      

   2. The job description for the Warehouse Coordinator was developed sometime during the period 1972 to 1974. The Respondent has held the position since that time. Prior to then, the Respondent served as the "Storekeeper" with essentially the same duties. The job description for the Warehouse Coordinator lists the position's major functions as follows:

      
      

      This involves the supervision over the operations of a portion of a large-sized warehouse or complex pertaining to stock and supplies and their distribution.

      This supervision also includes movement of all foods and surplus property items. The employee is responsible for the efficient operation of the warehouse complex and performs his/her duty under the general direction of the Director

      of Warehousing and Distribution and in accordance with established procedure and regulations.

      
      

      The description lists illustrative duties as follows:

      
      

      Supervises the receipt and storage of a large variety of supplies, materials, and equipment; supervises the proces- sing of requisitions and issuance of supplies in accordance with prescribed procedures; supervises the maintenance of perpetual inventories and the prepa- ration of detailed stores, records and reports; keeps superior notified of stock on hand and suggests purchases

      of designated commodities and materials; recommends and supervises the mainte- nance of proper minimum and maximum stock amounts.

      Coordinates and supervises the receipt, storage and delivery of surplus com- modities for the school lunchrooms; negotiates with carrier representa- tives concerning payment for goods damaged in shipping; supervises the movement of all surplus items and equipment between the schools and warehouse.

      
      

      Performs related work as required.

      
      

      Among the Respondent's specific duties was responsibility for disposing of scrap metal. The Respondent was responsible for supervising the loading of scrap metal onto trucks, the transporting of it to a salvage dealer, collecting money from the dealer and turning money in to the accounting clerk.

      
      

   3. During the years that the Respondent served as Warehouse Coordinator and Storekeeper, he received consistently high evaluations, generally in the "exceptionally high" range. It does not appear that he has ever been the subject of any disciplinary proceedings prior to this matter, and it appears that he has been regarded as a very capable and trusted employee.

      
      

   4. In disposing of scrap metal, the Respondent would supervise the loading of the material onto trucks at the warehouse. The drivers, who were generally classified as "storage clerks," would drive the trucks to a scrap metal dealer. The scrap metal dealer would issue an invoice and typically pay the drivers in cash. The drivers would return to the warehouse. On most occasions, the drivers would deliver the invoice and cash directly to the Respondent. On some occasions, however, because the Respondent was otherwise occupied, the money would be left on the Respondent's desk in his office, or in one of his desk drawers. The Respondent's office was located in the center of the warehouse.

      It was generally open to all employees, and employees frequently used the office to make telephone calls.

      
      

   5. Once the cash was delivered to the Respondent, he would deliver it to the warehouse accounting clerk, or to his supervisor, who would then be responsible for delivering it to the accounting clerk. Whether the money was delivered by the Respondent or by some other person, the accounting clerk would issue a receipt. The receipt would indicate that the funds were received from the scrap metal dealer. The receipt would not reveal whether Respondent or some other person delivered money to the accounting clerk. The receipts were numbered and issued in order. Receipt books were maintained so that copies of all receipts that were issued were preserved.

      
      

   6. During the early part of 1981, an investigation was initiated by the School Board respecting warehouse funds. The investigation was conducted under the supervision of the Board's Chief of Plant and Personnel Security, Bill H. Schwartz. Among other things, Mr. Schwartz compared invoices from the scrap metal dealer with the receipts maintained by the School Board and came to the conclusion that some money reflected on invoices had not been receipted. He interviewed numerous witnesses, including the Respondent. Schwartz came to the conclusion that the unreceipted funds ended with the Respondent. Based upon the demeanor of Mr. Schwartz on the witness stand, and upon statements of the witness that were clearly inaccurate, the witness Schwartz's testimony and conclusions have not been deemed credible. Schwartz testified, for example, that receipts issued by the School Board reflected who delivered the cash to the

      accounting clerk. This testimony is inaccurate. The receipts issued by the accounting clerk reflected only that funds were received from the scrap metal dealer. That fact is not a minor aspect of the investigation respecting the missing funds, and the witness Schwartz's faulty memory about it cannot be lightly regarded. This error and the witness's demeanor otherwise reveal that Schwartz focused his investigation initially upon the Respondent, considered the Respondent the culprit, and was not open to other conclusions during his investigation, or as a witness. Schwartz's testimony respecting statements made to him by the Respondent has been similarly deemed not credible.

      
      

   7. During the investigation, an invoice from the scrap metal dealer, together with some cash, was found in Respondent's desk drawer. The Respondent delivered the money to the accounting clerk. The invoice was approximately four months old at the time that it was delivered. The Respondent was expected to deliver money to the accounting clerk immediately upon its receipt. The four- month delay in an isolated case, however, does not reflect impropriety on the Respondent's part. Clearly, procedures followed by the Respondent in allowing employees that he supervised to leave money on his desk or in his desk drawers were lax. These procedures, however, had been followed for many years in the warehouse and were well known to at least some of the persons who held the position of Respondent's supervisor. Despite that knowledge, the Respondent received consistently outstanding evaluations. To the extent that the procedures Respondent followed violated School Board regulations, he could and should have been informed of it many years prior to the incidents which gave rise to this proceeding.

      
      

   8. After the investigation conducted by Mr. Schwartz, an audit was conducted of the scrap metal invoices and receipts. The audit revealed that approximately $230 was reflected as being paid to the School Board that was not reflected as being received. There are many possible explanations for this discrepancy. One possible explanation is that the Respondent received the cash from the employees that he supervised and failed to turn it in to the accounting clerk. Among other possible explanations are that employees of the scrap metal dealer falsely issued invoices and retained the cash for their personal purposes; that truck drivers improperly failed to turn money over to the Respondent; that money left by drivers on the Respondent's desk was taken by some other person; that the Respondent's supervisor, to whom the Respondent from time to time delivered the money so that it would be later turned over to the accounting clerk, failed to turn it over; or that the accounting clerk issued erroneous receipts. The evidence reveals no more than that the Respondent is one of numerous persons who could be responsible for the discrepancy.

      
      

   9. Paul Green was formerly employed by the School Board at its warehouse as a storage clerk. He testified at the hearing that the Respondent told him to pick up storage sheds at a commercial outlet and deliver them to a third party. The witness Green testified that this was done for the Respondent's private benefit. Green testified that the loading was accomplished by him and another School Board employee while they were on duty as School Board employees and that a School Board truck was used. The witness Green's testimony has been deemed not credible. This conclusion is based upon Green's demeanor as a witness, upon inherent contradictions in his testimony, and upon statements in his testimony that were shown to be untrue. Green was a very guarded witness. At times he wanted to reveal information but not reveal the source of the information.

      Green had at one time been terminated from his employment with the School Board, and he displayed hostility about that and toward the Respondent. Green testified that on one occasion he personally conducted an investigation about food being delivered by School Board employees on other than refrigerated trucks

      that were required for such use. He testified that he conducted the investigation while he was not on duty. His cohort, however, who assisted in the "investigation" testified to the contrary. Even if Green's testimony were credited, the evidence would not reveal who owned the sheds, whether the Respondent had been instructed by some other person to deliver them, and whether the School Board employees and trucks were or were not properly used to deliver them.

      
      

   10. The Respondent has been under suspension from his employment with the School Board since May 12, 1981.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   12. Paragraph 74.3 of the rules of the School Board of Brevard County provide: "An employee may be dismissed for cause. The immediate supervisor shall notify the employee of dismissal, stating the cause."

       
       

   13. The School Board has charged that the Respondent violated the provisions of paragraph 81 of its rules and regulations. While the evidence does not reveal that the Respondent directly violated any of these provisions, even if he did, he could not be dismissed on account of it. The paragraph relates to "internal school financial operations." Nothing in the language of the paragraph indicates that it is intended to apply to any School Board activities other than school operations. The rule refers to principals, student activity funds and the bike. It does not, by its terms, apply to such an operation as the warehouse.

       
       

   14. State Board of Education Rule 6A-1.57, Florida Administrative Code, relates to petty cash funds. The School Board has charged that the Respondent violated the rule. The evidence does not sustain this allegation.

       
       

   15. The evidence presented in this matter does not sustain the allegations that the Respondent misused School Board employees and equipment, or that he mishandled School Board funds. The Statement of Charges should therefore be dismissed, the Respondent should be reinstated to his former position, and any salary that was withheld from him during the period of his suspension should be delivered to him.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the School Board of Brevard County dismissing the charges that have been filed against the Respondent, Harvey J. Wilcox; reinstating the Respondent to his position as Warehouse Coordinator with the School Board; and awarding the Respondent back pay that has been withheld from him during the period of his suspension.

RECOMMENDED this 10th day of February, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division Administrative Hearings this 10th day of February, 1982.

COPIES FURNISHED:

William C. Walker, Jr., Esquire Post Office Box 1084 Titusville, Florida 32780

Joyous D. Parrish, Esquire Nabors, Potter, McClelland, Griffith & Jones, P.A.

605 South Palm Avenue Post Office Box 37 Titusville, Florida 32780

William R. Clifton, Esquire 1970 Michigan Avenue, Suite B Cocoa, Florida 32922

George Ritchie, Esquire

412 Brevard Avenue Post Office Box 38 Cocoa, Florida 32922

Mr. Robert L. Blubaugh Superintendent

School Board of Brevard County 1260 Florida Avenue

Rockledge, Florida 32955

Docket for Case No: 81-002217

Orders for Case No: 81-002217