STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM E. WHALEY, as )
Superintendent of Wakulla )
County Schools, )
)
Petitioner, )
)
vs. ) CASE NO. 82-638
)
JACK D. PELHAM, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Crawfordville, Florida, on July 6, 7, and 8, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.
APPEARANCES
For Petitioner: Brian T. Hayes, Esquire
245 E. Washington Street Monticello, Florida 32344
For Respondent: David A. Barrett, Esquire
BARRETT, BAJOCZKY & BARRETT
Post Office Box 1501 Tallahassee, Florida 32302
This action was commenced by the Wakulla County School Board's (WCSB) suspension of Respondent, who holds a continuing contract as teacher and an annual contract as Principal of Wakulla County High School (WCHS). He has served in the latter capacity for over five (5) years. The suspension was effected by letter and amended letter to Pelham dated January 28, 1982, and February 1, 1982, respectively. The WCSB continued this suspension at their meeting on February 9, 1982, pending final decision in this case. The WCSB requested the Division of Administrative Hearings to conduct the hearing and make recommendations to the WCSB, and the Division has taken jurisdiction of the matter pursuant to this request.
Respondent was initially suspected of taking substantial sums of money from the Fall, 1981, football game receipts. Further investigation by Petitioner developed allegations that Respondent converted school funds from various accounts to his personal use or benefit. The Statement of Charges filed herein states 11 separate counts. However, Petitioner voluntarily dismissed the counts at paragraph 8(1)(a), 8(1)(b), and 9(2) of the Statement of Charges, and no further consideration will be given to these counts.
FINDINGS OF FACT
The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards.
The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment.
The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB.
The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized.
The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received.
At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds
had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were:
Blountstown - September 18, 1981
Jefferson County - October 2, 1981
F.A.M.U. - October 9, 1981
Rickards - October 23, 1981 Port St. Joe - November 13, 1981
There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season.
During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted.
During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors.
There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom.
Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a
Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs.
A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit.
In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit.
In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
CONCLUSIONS OF LAW
A filing date of July 28, 1982, was set for the submission of proposed findings of fact. Respondent submitted timely proposed findings which are incorporated herein to the extent they are relevant and consistent with the evidence. Petitioner's proposed findings were filed by cover letter dated August 2, 1982, and were thus not timely. No extension of time had been requested or granted. Therefore, Respondent's motion to strike Petitioner's proposed findings is granted.
Respondent challenged a number of Petitioner's Exhibits for failure to produce originals rather than copies, and for the failure of petitioner to identify Respondent's signature on checks and check requisitions by expert testimony. These objections are overruled. There was no indication that any of the copies produced had been tampered with or were other than what they purported to be (invoices, receipts, checks and check requisitions) . Further, Petitioner made a reasonable effort to locate the originals which were determined to have been unavailable. The signature of Respondent was identified by the bookkeeper and other school personnel who are familiar with it. There was no rebuttal of this testimony and no cause to believe Respondent's signatures were forged.
Section 231.36(6) , Florida Statutes (1981) , and Rule 6B-4.09(3) , Florida Administrative Code (FAC) 1/, provide for dismissal of a continuing contract educator for misconduct in office. The latter provision states:
Misconduct is office is defined as a violation of the Code of Ethics of the
Education Profession so serious as to impair the individual's effectiveness in the school system.
The Code of Ethics of the Education Profession referred to above is set forth in Chapter 6B-1, FAC. Rule 6B-1.03 (2)(d), FAC, which Petitioner cites as the applicable standard provides:
(2) In fulfilling his obligation to the public, the educator -
(d) Shall not use institutional privi- leges for private gain or promote political candidates for partisan political activities.
By using $113.31 in school funds to purchase the tennis net, and then failing to make reimbursement until confronted with a Statement of Charges, Respondent did utilize an institutional privilege (the charging of personal expenses to school accounts) for personal gain, and is therefore guilty of violating the above ethical standard. 2/ Additionally, the purchase of Onan engine parts for Respondent's use and for which WCHS paid $27.85, was a further abuse of this institutional privilege and a violation of the Code of Ethics provision cited above.
The evidence as to the remainder of the charges was inconclusive. In proceedings such as this which involve penal provisions, violations may not be found on problematic evidence. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). The remaining charges should therefore be dismissed.
The charges proven by Petitioner herein support dismissal from his position as a continuing contract teacher. However, the most serious allegations (theft of football receipts) which precipitated his suspension without pay were not proven. Therefore, the without pay portion of the suspension should be rescinded pending final action by the WCSB in this proceeding.
From the foregoing, it is
RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further,
RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board.
DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida.
R. T. CARPENTER, 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 13th day of August, 1982.
ENDNOTES
1/ Provisions of Chapter 6B, FAC, cited herein are those in force at the time of the alleged misconduct in office.
2/ Although the propriety of using institutional funds for even temporary unofficial purposes is questionable, this procedure was not uncommon at WCHS during the period at issue here.
COPIES FURNISHED:
Brian T. Hayes, Esquire
245 E. Washington Street Monticello, Florida 32344
David A. Barrett, Esquire BARRETT, BAJOCZKY & BARRETT
Post Office Box 1501 Tallahassee, Florida 32302
William E. Whaley, Superintendent Wakulla County School Board
Post Office Box 100 Crawfordville, Florida 32327
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM E. WHALEY, as )
Superintendent of Wakulla )
County Schools, )
)
Petitioner, )
)
vs. ) CASE NO. 82-638
)
JACK D. PELHAM, )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER 1/
This matter came on for hearing in Crawfordville, Florida, on July 6, 7, and 8, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.
APPEARANCES
For Petitioner: Brian T. Hayes, Esquire
245 E. Washington Street Monticello, Florida 32344
For Respondent: David A. Barrett, Esquire
BARRETT, BAJOCZKY & BARRETT
Post Office Box 1501 Tallahassee, Florida 32302
This action was commenced by the Wakulla County School Board's (WCSB) suspension of Respondent, who holds a continuing contract as teacher and an annual contract as Principal of Wakulla County High School (WCHS). He has served in the latter capacity for over five (5) years. The suspension was effected by letter and amended letter to Pelham dated January 28, 1982, and February 1, 1982, respectively. The WCSB continued this suspension at their meeting on February 9, 1982, pending final decision in this case. The WCSB requested the Division of Administrative Hearings to conduct the hearing and make recommendations to the WCSB, and the Division has taken jurisdiction of the matter pursuant to this request.
Respondent was initially suspected of taking substantial sums of money from the Fall, 1981, football game receipts. Further investigation by Petitioner developed allegations that Respondent converted school funds from various accounts to his personal use or benefit. The Statement of Charges filed herein states 11 separate counts. However, Petitioner voluntarily dismissed the counts at paragraph 8(1)(a), 8(1)(b), and 9(2) of the Statement of Charges, and no further consideration will be given to these counts.
FINDINGS OF FACT 2/
The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards.
The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment.
The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB.
The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized.
The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received.
At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds
had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were:
Blountstown - September 18, 1981
Jefferson County - October 2, 1981
F.A.M.U. - October 9, 1981
Rickards - October 23, 1981 Port St. Joe - November 13, 1981
There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season.
During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted.
During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors.
There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom.
Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a
Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs.
A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit.
In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit.
In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Pelham seeks to excuse these actions on the grounds that use of school funds for personal expenditures with later reimbursement was a common practice in the Wakulla school system. During this period, shop instructors periodically utilized school supplies or purchased parts they found were required while repairing faculty owned equipment rather than stopping repairs until the owner was notified to obtain the needed items. The school would later obtain reimbursement from the owner. Here, however, the shop instructor gave Pelham a list of parts required in advance of the work to be accomplished on Pelham's tractor. Thus, there was no reason of convenience to pay for this purchase with school funds. Further, all orders of shop supplies for school purposes, or for use on faculty owned equipment where reimbursement was contemplated, were initiated by shop personnel and not by Pelham.
In addition to those instances where shop teachers purchased parts for owners during repairs, WCHS staff members sometimes charged personal telephone calls to the school. These were calls initiated at the school which, as a matter of billing convenience, were charged to the school at the time the calls were placed. Reimbursement was made after the charges were known. While this was a poor practice from a financial control standpoint, it was not equivalent to Pelham's decision to utilize school funds to pay for his tractor parts.
Similarly, there was no precedent or legitimate purpose in Pelham's decision to order a tennis net for his personal use and charge it to a school account. Pelham instructed the bookkeeper, Mrs. Crowson, to prepare a check drawn on WCHS for the $113.31 when the supplier demanded payment. Although Pelham told Mrs. Crowson he would reimburse the school, he failed to do so even after she reminded him of the expenditure some six months later at the conclusion of the school year.
Pelham contends that he could not have intended to defraud the school system because his actions were open and because he used the general fund account rather than the athletic fund account to purchase the tennis net. His claim of openness lacks merit, particularly with respect to the tractor parts which were charged at Whitehill Equipment Company. Since WCHS orders supplies from this company for school use, the personal order by Pelham could have been overlooked by school auditors. Similarly, the tennis net purchase, regardless of account funds utilized, could also have been overlooked given the laxness in financial controls within the Wakulla school system, which were well-known to Pelham. The tractor parts and purchases were, in fact, not discovered until Petitioner became suspicious of Pelham with respect to the football receipts and undertook its investigation.
CONCLUSIONS OF LAW
A filing date of July 28, 1982, was set for the submission of proposed findings of fact. Respondent submitted timely proposed findings of fact and conclusions of law Respondent's proposed findings 1 through 12 are accepted. Proposed findings 13 through 16 are rejected as inconsistent with the evidence presented and the findings of fact set forth above. Petitioner's proposed findings were filed by cover letter dated August 2, 1982, and were thus not timely. No extension of time had been requested or granted. Therefore, Respondent's motion to strike Petitioner's proposed findings is granted.
Respondent challenged a number of Petitioner's exhibits for failure to produce originals rather than copies and for the failure of Petitioner to identify Respondent's signature on checks and check requisitions by expert testimony. These objections are overruled. There was no indication that any of the copies produced had been tampered with or were other than what they purported to be (invoices, receipts, checks and check requisitions). Further, Petitioner made a reasonable effort to locate the originals which were determined to have been unavailable. The signature of Respondent was identified by the bookkeeper and other school personnel who are familiar with it. There was no rebuttal of this testimony and no cause to believe Respondent's signatures were forged.
Section 231.36(6), Florida Statutes (1981), and Rule 6B-4.09(3), Florida Administrative Code (FAC)3, provides for dismissal of a continuing contract educator for misconduct in office. The latter provision states:
Misconduct in office is defined as a violation of the Code of Ethics of
the Education Profession so serious as to impair the individual's effectiveness in the school system.
The Code of Ethics of the Education Profession referred to above is set forth in Chapter 6B-1, FAC. Rule 6B-1.03(2)(d), FAC, which Petitioner cites as the applicable standard provides:
(2) In fulfilling his obligation to the public, the educator
(d) Shall not use institutional privi- leges for private gain or promote political candidates for partisan political activities.
By using $113.31 in school funds to purchase the tennis net, and then failing to make reimbursement until confronted with a Statement of Charges, Respondent did utilize an institutional privilege (the charging of personal expenses to school accounts) for personal gain and is therefore guilty of violating the above ethical standard. 4/ Additionally, the purchase of Onan engine parts for Respondent's use and for which WCHS paid $27.85 was a further abuse of this institutional privilege and a violation of the Code of Ethics provision cited above.
The evidence as to the remainder of the charges was inconclusive. In proceedings such as this which involve penal provisions, violation may not be found on problematic evidence. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). The remaining charges should therefore be dismissed.
The charges proven by Petitioner herein support dismissal from his position as a continuing contract teacher. However, the most serious allegations (theft of football receipts), which precipitated his suspension without pay, were not proven. Therefore, the without pay portion of the suspension should be rescinded pending final action by the WCSB in this proceeding.
RECOMMENDATION
From the foregoing, it is
RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges and that he be dismissed from his position as teacher under continuing contract with the Wakulla County School Board. It is further
RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. 5/
DONE and ENTERED this 12th day of October, 1983, in Tallahassee, Florida.
R. T. CARPENTER, 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 12th day of October, 1983.
ENDNOTES
1/ Recommended Order issued August 13, 1982, is amended herein as required by Jack D. Pelham v. School Board of Wakulla County, So.2d (Fla. 1st DCA 1983).
2/ Findings of Fact contained in Paragraphs 1-13 are substantially unchanged from the original Recommended Order. Findings contained in Paragraphs 14-17 have been added.
3/ Provisions of Chapter 6B, FAC, cited herein are those in force at the time of the alleged misconduct in office.
4/ Although the propriety of using institutional funds for even temporary unofficial purposes is questionable, this procedure was not uncommon at WCHS during the period at issue here.
COPIES FURNISHED:
Brian T. Hayes, Esquire
245 E. Washington Street Monticello, Florida 32344
David A. Barrett, Esquire BARRETT, BAJOCZKY & BARRET
Post Office Box 1501 Tallahassee, Florida 32302
William E. Whaley, Superintendent Wakulla County School Board
Post Office Box 100 Crawfordville, Florida 32327
| Issue Date | Proceedings |
|---|---|
| Dec. 16, 1982 | Final Order filed. |
| Aug. 13, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 27, 1982 | Agency Final Order | |
| Aug. 13, 1982 | Recommended Order | Respondent converted school funds for own use. Dismiss Respondent and suspend Respondent without pay until Final Order is issued. |
