STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF NASSAU COUNTY, ) FLORIDA, and CRAIG MARSH, )

Superintendent of Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 82-804

)

WILMEA D. HICKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 2, 1982, in Fernandina Beach, Florida.

APPEARANCES

For Petitioner: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

For Respondent: Mark S. Kessler, Esquire

207 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

This cause was initiated by Craig Marsh, Superintendent of Schools of Nassau County, on a statement of charges filed by him against Wilmea D. Hicks, a teacher and employee of the School Board of Nassau County. Specifically, it is charged that the Respondent has violated Section 231.36(6), Florida Statutes, in that the Respondent has engaged in misconduct in office by allegedly collecting certain monies from her students ostensibly for the purchase of Junior Scholastic magazines, workbooks and other materials and instead allegedly embezzling, withholding or otherwise converting the cash contributions from her students to her own use and to an unauthorized use, failing to remit the funds over to the Respondent's school principal or other person in authority in financial matters for the school, all in alleged violation of the above statutory authority as well as the School Board policies and procedures set forth in Petitioner's Exhibit 3 and Rules 6B-4 and 6B-1, Florida Administrative Code.

The Petitioner presented seven witnesses and the Respondent presented one witness, the Respondent herself. The Petitioner presented Exhibits A through R, all of which were admitted into evidence. At the conclusion of the hearing the parties waived the requirements of Rule 28-5.402, Florida Administrative Code, and elected to submit proposed findings of fact and conclusions of law. The issue to be resolved by this proceeding is whether or not the Respondent is

guilty of the acts of which she is charged and, if so, what penalty, if any, should be imposed.

FINDINGS OF FACT

1. The Petitioner, Craig Marsh, is the duly elected Superintendent of Schools of Nassau County.

   
   

2. The Respondent, Wilmea D. Hicks, holds a continuing contract as a teacher and has been recently employed at Yulee Junior High School, Fernandina Beach, Florida. On January 15, 1982,, upon the Petitioner's (Craig Marsh) recommendation, the School Board of Nassau County suspended the Respondent with pay. Upon the filing of a recommendation of suspension without pay before the Nassau County School Board by Mr. Marsh, the School Board, on February 11, 1982, suspended the Respondent without pay. The Respondent exercised her right to a hearing before a Hearing Officer appointed by the State of Florida, Division of Administrative Hearings concerning the propriety of her suspension without pay.

   
   

3. Commencing in the 1980-81 school year and continuing through the first half of the 1981-82 school year, the Respondent obtained from her students, each of them in her seventh and eighth grade classes, the sum of approximately $5.00 per student on an annual basis, which money was to be used for the purchase of student periodicals (Junior Scholastic) and workbooks.

   
   

4. The Respondent collected those funds and retained them in her possession and they were not transmitted to the school office on a daily basis as is required by written School Board policy established in this record by Petitioner's Exhibit D, in evidence. Very little cash receipts were turned in at all. The Respondent apparently retained the cash, and turned in checks only, paid to her by students.

   
   

5. During the 1980-81 school year, each student in the Respondent's classes received the publications for which the money had been collected, that is the Junior Scholastic magazines were ordered directly by the secretary's office at the Yulee Junior High School and it was unnecessary for the Respondent to collect money in order to receive this publication for her students.

   
   

6. During the 1981-82 school year, each student in the Respondent's classes received the Junior Scholastic magazine through purchase by school monies. The workbooks for which monies were received from the students by the Respondent were actually ordered and paid for by the School Board. Thus, the funds collected by the Respondent were not at all necessary for the purchase of workbooks. The Respondent maintained that she intended to order an alternative publication with the money she had in her possession from the students when the School Board had paid for the workbooks and the Junior Scholastic magazines, but was unable to before she was suspended from her job. She contended she had no time to refund any unused money before suspension. This procedure, whereby she collected money of her own volition from her students, had its inception at least a year and a half prior to her suspension however, and during the first year (1980-81 school year) the Respondent was placed on notice that the School Board would pay for the publications in question, at the very least the Junior Scholastic magazines, and no money was refunded to students, or alternative publications purchased, during that time.

   
   

7. During the 1981-82 school year, the Respondent failed to account for any of the cash received by her and acknowledged immediately prior to her suspension that she indeed owed money to the school, but was unable to pay it

   back. The Respondent testified that she purchased books for her students at the Florida Book Depository in Jacksonville on her own volition. However, when that testimony is weighed against the testimony of her students and other evidence in the record, all of which indicates that no workbooks were ever given to her students, and when no proof sufficient to establish that they were used in her class is extant in this record, the Respondent's testimony is thus rejected as being unworthy of belief. She produced no receipt and no witness attesting to the fact that she journeyed to Jacksonville to make such a purchase, nor that the workbooks, if indeed purchased, were used in her class. In any event, such a purchase would have been illegal under existing School Board policy, in evidence in this record, since it was shown to be accepted policy that such purchases should be made in the form of a request to the school office which handles purchasing. (See Petitioner's Exhibit M, in evidence)

   
   

8. Mr. Ray Davis, the principal at Yulee Junior High School, during times pertinent hereto, established that during the 1980-81 school year students were not even required to have the civics workbooks, whether purchased by the school, the School Board or themselves and that with regard to collections for workbooks, the Respondent had turned into the office only the checks and no cash. Mr. Davis established that during the 1980-81 school year approximately

   $400.00 was collected by the Respondent and unaccounted for and during the 1981-

   82 school year approximately $325.00 was received by the Respondent and unaccounted for to the school office. The school ultimately, through the efforts of Mr. Davis, made restitution to the parents to the extent of about

   $200.00. Mr. Davis established that 96 students had paid in $5.00 each to the Respondent for the subject materials, making a total which should have been collected of $480.00 in the 1981-82 school year, and yet in that year it was shown that only $175.00 had been turned in or had been submitted to the school office by the Respondent, with the balance unaccounted for.

   
   

9. The Respondent acknowledged that she had not followed proper accounting procedures and had not turned in all the money, but demonstrated that this was not a willful attempt to convert the money to her own use and that she has always been an effective teacher and remains so. The Respondent failed to demonstrate what became of the money, however, and has not, as of the time of the hearing, made any effort to make restitution to the School Board of the money unaccounted for.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes. Section 231.36(6), Florida Statutes, provides pertinently as follows:

    
    

    Any member of the district administrative or supervisory staff and any member of the

    instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the

    charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime in- volving moral turpitude. . .

    
    

11. The evidence in this record establishes without doubt that the Respondent either intentionally, or through gross negligence, violated specific

    proven policies of the School Board of Nassau County, specifically Section 727, which determines and mandates the proper accounting for money entrusted to the possession of teachers, principals or administrators by their students or others. The record conclusively establishes that the Respondent did not turn in the majority of the funds placed in her possession by her students and only turned in those represented by checks for recording in the internal accounts of the school. She was on notice ever since her employment of the proper means for accounting for such monies, as it was established that all teachers, including the Respondent were given a written copy of the School Board's rules and policies establishing how to account for monies placed in their possession for various purposes. The Respondent clearly did not follow those policies and has never, even to the present, accounted for what became of the money which remained in her possession or which at least was not properly submitted to the school office. After admitting that she owed money to the school, she failed to recompense the school after it made the effort to reimburse the parents of the students who had paid in the subject funds. Such behavior clearly constitutes misconduct in office for purposes of the above-referenced authority.

    
    

12. The conduct involved could not be deemed to be of an isolated or transitory nature since it occurred over the course of year and a half from the time, at the beginning of the 1980-81 school year, when she first received such monies from students and did not ensure that the materials which the funds were to buy were provided the students (even if it be assumed that it was proper for her buy such materials on her own volition). She then retained the funds for approximately a year and a half and never, to this day, has accounted for their disposition, even though she acknowledged she owed at least some of the money to the school. Thus, the misconduct established to be a fact in this case continued over a substantial period of time when the Respondent had concomitantly a continuing opportunity to acknowledge her mistake to the school administration and take steps to voluntarily correct it, which she failed to do. Accordingly, a substantial penalty is warranted.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore

RECOMMENDED:

That Wilmea D. Hicks be permanently terminated from her employment with the School Board of Nassau County for misconduct in office, with forfeiture of back pay.

DONE and ENTERED this 22nd day of December, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 22nd day of December, 1982.

COPIES FURNISHED:

Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

Mark S. Kessler, Esquire

207 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Craig Marsh, Superintendent Nassau County Schools

209 Cedar Street

Fernandina Beach, Florida 32034

Docket for Case No: 82-000804

Orders for Case No: 82-000804