STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-636

)

BETTY JOYCE FISHBURNE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 28, 1982, in Miami, Florida. The transcript from that hearing was filed with the Division of Administrative Hearings on April 25, 1983.

Petitioner School Board of Dade County was represented by Jesse J. McCrary, Jr., Esquire, Miami, Florida, and Respondent Betty Joyce Fishburne was represented by Sarah Lea Tobocman, Esquire, Miami, Florida.

On February 17, 1982, Petitioner suspended Respondent from her employment and initiated dismissal proceedings. Respondent timely requested a formal hearing, and a formal notice of charges was thereafter filed. Accordingly, the issue for determination is whether Respondent should be suspended and/or dismissed from her employment as a teacher in the Dade County Public Schools.

Ralph Neilsen testified on behalf of the Petitioner, and by stipulation the testimony of Lawrence Douglas was proffered. Additionally, Petitioner's Exhibit numbered 1 was admitted in evidence. In addition to testifying on her own behalf, Respondent presented the testimony of Claudia Gray, Paula Gold, George Washington and Larry Edgar Souter, and by stipulation the testimony of Maria Tizol was proffered. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

By stipulation at the formal hearing, the parties amended the Notice of Charges, the Pretrial Stipulation and the transcript of hearing in this cause so that the name Celestine Adams is corrected to read Celestine Edwards.

Although both parties requested and were granted time in which to file post hearing proposed findings of fact in the form of proposed recommended orders, neither party did so.

FINDINGS OF FACT

1. At all times material hereto, Respondent was an employee of Petitioner, and at the time of her suspension on February 17, 1982, she was employed as a teacher.

2. In December 1977, Respondent filed an application with the State of Florida, Department of Health and Rehabilitative Services pursuant to the food stamp program. On that application, she listed George Fishburne as the applicant and named herself as the applicant's spouse. In the section entitled "Household Composition," she listed George Fishburne as the head of the household, herself as his wife, three persons as their children and Clestine [sic] Edwards as a niece. In the section entitled "Earned Income," Respondent listed as the only source of income a gross salary for George Fishburne of 90 a week working at Dixie Cleaners. She also signed George Fishburne's name to the application on the line entitled "Signature of Head of Household or Spouse.

   
   

3. At the time that Respondent completed and submitted the application for food stamps, she and George Fishburne were divorced. Although he on occasion stayed at Respondent's home, George Fishburne lived elsewhere and was, therefore, neither the head of Respondent's household nor a member of her household.

   
   

4. At the time that Respondent completed and submitted the application for food stamps, Celestine Edwards stayed at Respondent's house on an irregular basis and, therefore, was not a member of the household.

   
   

5. At the time that Respondent completed and submitted the application for food stamps, Respondent failed to report both her employment with Petitioner and her gross monthly income of $646.60.

   
   

6. Based upon Respondent's application, the State of Florida, Department of Health and Rehabilitative Services commenced paying benefits to Respondent. No changes to the information contained in that application were ever reported by Respondent.

   
   

7. The information provided by Respondent in her application entitled her to benefits in excess of the benefits she would have beer, entitled to had she been truthful.

   
   

8. Between December 20, 1977, and September 30, 1980, Respondent received

   $5,670 in excess of the benefits to which she was entitled. Prior to felony criminal charges being filed against her, Respondent was given an opportunity to make arrangements with the Department of Health and Rehabilitative Services to repay the excess in benefits which she had received. The Department waited for two months, but Respondent failed to make any contact to discuss repayment.

   Accordingly, the matter was referred to the State Attorney's office, and felony charges were filed. Thereafter, Respondent agreed to make restitution, and she was not brought to trial on the charges of public assistance fraud.

   
   

9. Pursuant to the terms of Respondent's agreement made in court, she was referred to the Advocate Program, a program for first offenders. She agreed to repay the sum of $3,500 as restitution and to perform 50 hours of volunteer work. At the time of the final hearing in this cause, Respondent bad completed her 50 hours of volunteer work and had repaid the sum of $525. She was still "being supervised", through that program and would not be released from supervision until the agreed upon amount of restitution had been paid in full or until further order of the court which placed her in that program.

   
   

10. All of Respondent's witnesses were character witnesses. They all believe that Respondent is either a good or excellent teacher and is an admirable person because of her extensive involvement in church and community volunteer work over the years. One of those witnesses, however, became aware of

    the public assistance fraud charges against Respondent and of Respondent's suspension and possible dismissal from employment by Petitioner through reading about it in the newspapers.

    
    

11. At the time Respondent applied for benefits under the food stamp program, she knew that neither George Fishburne nor Celestine Edwards were members of her household, and she further knew that she was employed and not unemployed. She intentionally gave false information on her application in order to obtain benefits to which she was not entitled. Her December 1977 initial application reflects that she had previously been a recipient of food stamps, from which fact it can be assumed that she had some familiarity with the operation of the program.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

13. Section 231.36(6), Florida Statutes, authorizes a school board to suspend or dismiss at any time during the school year a member of the instructional staff based on immorality. Section 6B-4.09(2), Florida Administrative Code, defines immorality as:

    
    

    . . . conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual con- cerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    Petitioner has met its burden of proving that Respondent is guilty of immorality.

    
    

14. The evidence in this cause fails to indicate Respondent's precise position as a member of Petitioner's instructional staff. This cause was initially scheduled for formal hearing on June 22, 1982. That hearing was cancelled based upon the potential of proceedings being initiated by the state against Respondent and her teaching certificate. On October 25, 1982, Respondent filed a Motion to Set Final Hearing, which motion recited that the State of Florida, Department of Education had declined to take any action against Respondent at that time for the reason that Respondent had no Florida teaching license. Her term of employment with the Dade County Schools during the 1980-1981 school year was by a special request of the Dade County Public Schools pending her successful completion of the state competency examination for teachers. The Department of Education had agreed to permit Respondent to sit again for that examination in November 1982. The record in this cause does not reflect whether Respondent was successful on that attempt or whether Respondent has been licensed by the state to be a teacher. The record does reflect an agreement between Respondent and the Department of Education as to disciplinary action to be taken should Respondent ever become licensed. Although Respondent is not charged with incompetency in this cause, her inability to pass the state competency examination must be considered in determining the action recommended to be taken by Petitioner. Petitioner has proven Respondent guilty of immorality, and one of Respondent's own witnesses became aware of Respondent's problems with her employment as a result of the

news media. Although members of the community where Respondent does volunteer work may choose to ignore the unfavorable publicity brought to the teaching profession by Respondent's conduct, the profession itself is not required to ignore such public disgrace and is justified in requiring that children be educated by persons of good moral character who possess the minimum qualifications for licensure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

immorality, affirming her suspension effective February 17, 1982, dismissing Respondent from employment with the School Board of Dade County, and denying Respondent's request for back pay.

DONE and RECOMMENDED this 19th day of July, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1983.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3000 Executive Building,

Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Sampson Oliver, Esquire 2930 Lenwood Avenue, SE Atlanta, Georgia 30317

Phyllis O. Douglas, Esquire Dade County Public Schools Lindsey Hopkins Building, Room 200

1410 NE Second Avenue Miami, Florida 33132

Docket for Case No: 82-000636

Orders for Case No: 82-000636