STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2396

)

CLIFTON JEROME LOCKE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Walton Beach, Florida before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on October 26, 1983. The parties' proposed recommended orders were received on January 19 and 23, 1984. The parties are represented by counsel:

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Ronald G. Meyer, Esquire

Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302

By administrative complaint dated July 12, 1983, petitioner alleged that respondent held Teacher's Certificate No. 361372 and was employed as an Army ROTC instructor at Crestview Senior High School at all pertinent times; that he failed "to timely and properly process 46 monthly telephone statements for the ROTC, resulting in the loss to the Okaloosa County School District of $2,974.42 in long distance telephone charges;" that, in January of 1982, respondent "organized and conducted candy sales by students in the ROTC program at Crestview High School without the prior approval of the principal of Crestview High School" and in disregard of "direct orders from his superior officer;" that respondent failed to file "forms reflecting beginning inventory, total cost, cost per item, closing inventory, total items sold and profit" in connection with the candy sale, as required by school policy, and failed to deliver candy sale proceeds in the amount of $175.50 "to the school's bookkeeper the day they were collected or as soon thereafter as possible, contrary to Crestview High School policy;" that respondent "misappropriated $40 in proceeds from the sale of ROTC student photographs;" and that respondent "failed to timely and properly process an application of a Crestview High School student for an Army ROTC scholarship," all "in violation of Section 231.28, Florida Statutes, in that Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the Okaloosa County School Board . . . in violation of Rule 6B-1.06 (4)(c) and (5)(a), Florida Administrative Code, in that the Respondent has used institutional privileges for personal gain or

advantage and has failed to maintain honesty in all professional dealings . . . [and] contrary to Rule 611-1.01(3), Florida Administrative Code, in that Respondent has failed to achieve and sustain the highest degree of ethical conduct."

ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.

FINDINGS OF FACT

1. At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School.

   
   

2. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times.

   
   

3. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40)

   
   

   TELEPHONE BILLS

   
   

4. The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program.

   
   

5. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature.

   
   

6. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978.

   
   

7. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81)

   
   

8. Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read:

   
   

   Returning your bill to be corrected. Please mark calls on the phone bill

   that add up to fifty-three ninety-

   five ($53.95), all three copies, please.

   
   

   It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone.

   
   

9. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance.

   
   

10. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well.

CANDY SALES

1. Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters.

   
   

2. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy

sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited.

1. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy.

   
   

2. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed.

   
   

3. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer.

   
   

4. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least

   $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2.

   
   

5. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full.

   
   

6. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student

   for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students.

   
   

   APPLICATION LATE

   
   

7. Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed.

   
   

8. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department.

   
   

9. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Educational Practices Commission has authority to suspend, revoke or revoke permanently a teacher's certificate or take other lawful action, if it can be shown that the certificate-holder

    
    

    1. Obtained the teaching certificate by fraudulent means;

    2. Has proved to be incompetent to teach or to perform his duties as an employee of the public school system or

       to teach in or to operate a private school;

    3. Has been guilty of gross immorality or an act involving moral turpitude;

    4. Has had his certificate revoked in another state;

    5. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

    6. Upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board;

    7. Has breached a contract, as provided in s. 231.36(2); or

    8. Has otherwise violated the provisions

       of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

       
       

       Section 231.28(1), Florida Statutes (1983).

       
       

       It is clear from petitioners' joint proposed recommended order that petitioner relies on subsections (f) and (h) only.

       
       

11. The specific rule provisions invoked as a basis for disciplinary action are Rule 6B-1.06(4)(c) and (5)(a), Florida Administrative Code, which require that teachers "not use institutional privileges for personal gain or advantage" and that teachers "maintain honesty in all professional dealings." Rule 6B-1.06(4)(c), Florida Administrative Code, substantially restates former Rule 6B-1.03(2), Florida Administrative Code, and Rule 6B-1.06(5)(a), Florida Administrative Code has antecedents in former Rule 6B-1.01(1) and 6B-1.03(2)(b), Florida Administrative Code. The present rule was adopted July 6, 1982.

    
    

12. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

    
    

13. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

    
    

14. The evidence here showed a failure on respondent's part to comply with school policy in various particulars as regards the candy sale, but no money was lost or harm done. These peccadilloes did not reduce his effectiveness as a teacher. Otherwise, the evidence did not support the allegations against him. The evidence did not establish that respondent was responsible for the loss of any reimbursement that may have been owed the Okaloosa County School Board.

Sgt. Locke was not, moreover, asked to process the telephone bills "properly" as he is alleged to have neglected to do . He was asked to assist in perpetrating a fraud and, if anything, should be commended for declining.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint filed against respondent.

DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302

Ralph D. Turlington Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32301

Donald L. Griesheimer Executive Director Department of Education

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 83-002396

Orders for Case No: 83-002396