STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF BROWARD COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0816
)
ELIZABETH D. HARRISON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 10 and 11, 1986 in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
1311 Southeast 2nd Avenue
Fort Lauderdale, Florida 33316
For Respondent: James E. Brown, Esquire
Courthouse Square Bldg., Suite 603
200 Southeast 6th Street
Fort Lauderdale, Florida 33301 BACKGROUND
This matter began when petitioner, School Board of Broward County, issued a ten count petition for dismissal on February 10, 1986, advising respondent, Elizabeth D. Harrison, an instructional employee of petitioner, that she was dismissed effective that date, without pay, for committing "acts of immorality, misconduct in office, willful neglect (of) duties and/or moral turpitude." The illicit conduct was alleged to have occurred beginning on or about January 21, 1985 and continuing through June 17, 1985. More specifically, the petition alleges that Harrison, on various dates between January and June, 1985, made fraudulent oral and written statements to American Bankers Insurance Group and Northwestern National Life Insurance Company with the intent of obtaining benefits in connection with certain policies issued by those companies.
Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1985), to contest the action. The matter was referred by petitioner to the Division of Administrative Hearings on March 10, 1986, with a request that a hearing officer be assigned to conduct a formal hearing.
By notice of hearing dated March 31, 1986 a final hearing was scheduled on June 10 and 11, 1986 in Fort Lauderdale, Florida. On June 4, 1986, petitioner
was granted leave to amend its petition for dismissal by adding a new Count XI which alleged that Harrison had made fraudulent oral and written statements between January 29, 1985 and August, 1985 in connection with a policy issued by Bankers Life Insurance Company of Tampa.
At final hearing petitioner presented the testimony of Edward Boyack, Suzanne Alvard, Mildred Tong, Natalie Champagne, Laurie Jane Ragan, Walter R. Lohmann, Valerie Seasholtz and Howard J. Stearns. It also offered petitioner's exhibits 1-14. All were received in evidence. Exhibits 1 and 2 are the deposition testimony of Patricia Verbosch and Nancy C. Berghammer, respectively. In addition, petitioner was granted leave to late file the deposition of Anita Holmes. This was filed on July 1, 1986. Respondent testified on her own behalf and presented the testimony of James Maultsby, Rose Downing, Mary C. Teasdale, Dr. Benjamin F. Stevenson and Peggy Bray. She also offered respondent's exhibits 1 and 4-10. All were received in evidence.
At the conclusion of petitioner's case-in-chief, respondent moved to dismiss the charges. A ruling on that motion was reserved and will be dealt with in the Conclusions of Law portion of this order.
The transcripts of hearing (two volumes) were filed on July 7, 1986.
Proposed findings of fact and conclusions of law were filed by respondent and petitioner on August 1 and 6, 1986, respectively A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.
The issue is whether respondent should be dismissed as an instructional employee from the Broward County School System for the reasons alleged in the petition for dismissal, as amended.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, respondent, Elizabeth Harrison, was an instructional employee of petitioner, School Board of Broward County. She has held a continuing contract of employment since 1961. When the events herein occurred, she was assigned as a media specialist (librarian) at Nova Middle School in Davie, Florida. Respondent has also used the name Elizabeth Dunn, her maiden name, and E. Dunn Harrison, a variation of her married name. Prior to this occasion, she had never been disciplined for misconduct.
Harrison has known Walter James Stanley, Jr. since 1957 when Stanley was a student at a junior high school in Dade County where Harrison was employed. Stanley has been a mathematics teacher at Nova High School since 1981. Nova High School, Nova Middle School and two elementary schools share the same campus in Davie, but are located in different buildings and are considered separate schools within the Broward County school system.
In 1984, Stanley made application with Southeast Bank, N.A. for various personal loans. In connection with one of those loans, he purchased insurance policy number 29-235, certificate number 188693, with Bankers Life Insurance Company of Florida (Bankers Life). Under the terms of the policy, whenever Stanley was disabled and unable to work, Bankers Life was obligated to pay the creditor (Southeast Bank) for that portion of the installment loan payment then due. On the credit application filled out on October 17, 1984, Stanley used the
name "Walter Stanly," and gave his employment as a teacher at Nova High School. 2/ He also listed Elizabeth Harrison as his supervisor, and gave the telephone number 475-7760 as the number for the school. That telephone number was actually the telephone number in the media room at Nova Middle School where respondent worked. It should be noted that respondent had no personnel responsibilities in her position as a librarian, and had no connection whatever with Nova High School. Indeed, Stanley's personnel records were maintained by the office manager of Nova High School.
On January 27, 1985, Stanley executed a claim form under policy number 29-235 with a general agent for Bankers Life. It was eventually forwarded to the claims department in St. Petersburg on February 20, 1985. The form has appropriate sections to be filled out by the creditor, insured, physician and employer. According to the section purportedly filled out by the employer on January 4, 1985, Stanley (referred to as "Stanly" in the form) had been disabled and absent from work at Nova High School since June 5, 1954. The employer section was not signed by an individual, but simply had the words "Personnel Records Secretary" in the signature block where the employer was to sign. However, in the line for the employer's address, the words "3600 College Avenue, Ft. Lauderdale, Fla., 33314 Attn: Elizabeth Harrison" were written. The employer's telephone number was listed as 305-475-7760.
To verify Stanley's absences at work, Patricia Verbosch, a claims representative, telephoned 305-475-7760 on February 25, 1985. After Verbosch explained who she was and the purpose of her call, the person who answered the telephone identified herself as Harrison and said she was the personnel records secretary. Although Harrison denies that it was she who spoke with Verbosch that day, it is found that Harrison did indeed speak with Verbosch. Harrison confirmed to Verbosch that she had filled out the form and that the absences for Stanley were correct. Having been satisfied that Harrison filled out the form, the claims department later approved the claim for absences from work for the period August 14, 1984 through February 1, 1985 and paid the creditor $839.36 by check dated April 11, 1985. Without Harrison's representation, the claim would not have been paid.
On May 21, 1985 the claims department of Bankers Life was contacted by petitioner's director of internal affairs, Howard Stearns, and told that three other insurance companies were investigating Stanley. Stearns also gave the department's supervisor, Nancy Berghammer, the actual dates of absences by Stanley during school year 1984-85 as well as Stanley's correct name, address and social security number. Shortly afterwards, Stanley made claim under his policy for continued disability after February 1, 1985. In view of Stearns' conversation, and conflicting dates of absences, Berghammer spoke with Stanley by telephone on June 19, 1985. She then telephoned 305-475-7760 the same day and spoke with a female who identified herself as Elizabeth Harrison. Although Harrison denies it was she who spoke with Berghammer, this is not deemed to be credible. Berghammer requested copies of the computer printout for Stanley's attendance record in 1984-85 and an affidavit verifying his dates of absence. She was told by Harrison that it would be supplied by mail. On July 5, 1985, Berghammer received a letter dated June 26, 1985 on Nova High School stationery which read as follows:
TO: Banker's Life Insurance Company Claim's Department
RE: Walter Stanly's absences from work March 9, 1945/ss#263-71-5128
Mr. Stanly was absent from work from March '84
to June '84; August '84 to June '85. The letter did not bear the author's signature.
In connection with a credit application filed with Sentry Acceptance Corporation (Sentry) in Coral Springs, Florida, Stanley purchased policy number 95735 with American Financial Life Insurance Company (America) effective February 29, 1984. This policy provided that during any period Stanley was disabled and out of work, American was required to pay Sentry that portion of the installment loan then due during the disability period. On the application, Stanley used the name "Walter Stanly" and gave March 19, 1945 and 263-71-5128 as his date of birth and social security number, respectively.
In January, 1985 Stanley filed a claim for payment under policy number 95735. In the form it was represented that Stanley was absent from work continuously from June, 1984 through December 19, 1984. The portion of the form where the employer was to give the dates of absence from work was blank. After checking with Stanley, an American claims clerk sent a letter to respondent on January 24, 1985 at Nova High School requesting that she document his absences from work. The letter was returned to the claims clerk with a notation on the envelope "Not at Nova H.S." However, on January 31, 1985 a completed claim form was received in the mail by American. The employer's section stated that "Stanly" had been absent from work continuously from June 19, 1984 through January 30, 1985, and that the employer "(didn't) know when Walter will return to work." It bore the purported signature of Elizabeth Harrison, Secretary Records, and gave the telephone number 305-475-7760.
At about the same time American had directly contacted the principal's office at Nova High School requesting verification of Walter Stanley's absences. On January 30, 1985, the principal sent American a letter advising that Walter Stanley was absent from work on December 11 through 14, 17 through 20, 1984 and on January 22 through 25, 1985. When no payment on his claim had been made, Stanley telephoned American in February and was told the school had sent a verification letter with different attendance dates than those given on the claim form. After speaking with Stanley, American's office manager, Laurie Ragan, telephoned Nova High School and obtained a different spelling of Stanley's last name, as well as a different date of birth and social security number than those given on the credit application. In an effort to clarify the matter, Ragan telephoned 305-475-7760 on the morning of February 20, 1985 because Harrison's name and telephone number were given on the claim form. Without identifying herself, Ragan asked to speak to Elizabeth Harrison. A second female came to the telephone, and after Ragan identified herself, she gave the purpose of her call. Although Harrison denied it was she who spoke with Ragan, this assertion is not deemed to be credible. Harrison told Ragan
she had just seen Stanley that morning, and would forward the requested information. On February 25, 1985 Ragan received a letter dated February 27, 1985 on Nova High School stationery which stated as follows:
Stanly, Walter/bd-March 19, 1945 To whom it may concern:
Mr. Walter Stanly (263-71-5128) has been absent since June 15, 1984 and as of now he is still out, because of illness.
Sincerely, Elizabeth Harrison
The letter was written on Nova stationery which was no longer being used. Such stationery was available to all teaching personnel.
On March 7, 1985 American sent Stanley a letter advising him that in view of the "many discrepancies" in his name, social security number, date of birth and absences from work, it would no longer honor his claims until such discrepancies were "cleared up."
Stanley also purchased disability policy number H1-839-092 from Northwestern National Life Insurance Company (Northwestern). This policy was not purchased in connection with a loan. The application was made on October 26, 1984 and the policy became effective January 1, 1985. Stanley used the correct spelling of his name and date of birth on the application. On March 27, 1985 he executed a claim for disability benefits ($1,000 per month) under the above policy indicating he became totally disabled on February 1, 1985 and did not expect to return to work until August, 1985 due to a leg injury received from tripping over a water hose. The form also reflected that Elizabeth Harrison was the appropriate employer representative to be contacted. The telephone number 305-475-7760 was given.
After receiving the claim on April 2, Anita Holmes, a disability claims examiner for Northwestern, engaged the services of Equifax, a firm which specializes in insurance investigations. Holmes requested, among other things, that Stanley be interviewed and that his attendance records from Nova High School be obtained. The investigator, Walter Lohmann, interviewed Stanley at his residence on April 19, 1985. After interviewing Stanley, Lohmann went to Nova High School to secure his attendance records, but he could not find an Elizabeth Harrison in that school's personnel office. On April 23 he returned to Nova Middle School and went to the media room. He entered, introduced himself to Harrison and requested Stanley's attendance records. She told him the hard copies were at the school board central office but she could supply the information from a 3x5 file card she had in her file box. She then retrieved a 3x5 card and told Lohmann that Stanley had been absent continually from February
2 through April 14, 1985. Lohmann later received a copy of Stanley's attendance records from Nova High School and they reflected that Stanley was actually absent on February 6 and March 7, 8 and 11 (1/2 day) due to illness. As a result of this investigation, Holmes wrote Stanley on May 3, 1985 advising him that his claim had been denied.
Respondent denied (a) that she was involved with Stanley, (b) that it was she who had spoken with Verbosch and Ragan on the telephone, (c) that she had authored and mailed the employer's statements and various letters sent to
the insurance companies, and (d) that she had given Lohmann the false attendance records on April 23, 1985. However, she did concede that Stanley, an old friend, may have asked her to participate in the scheme on one occasion. To support her steadfast denial, Harrison produced an "alibi" witness who claimed she was with respondent on the morning of February 25, 1985. According to this witness, she specifically remembered taking Harrison to work that day around 12:30 p.m., or after Verbosch had telephoned the media office and spoken with a female who identified herself as respondent. However, this testimony is discredited since the official school attendance records reflect Harrison was present at work the entire day. Harrison also offered an expert documents examiner who opined, without credible contradiction, that the signature on Harrison's personal checks was not the same as the signature on the letter purportedly authored by Harrison on February 25 and the employer's certificate on the various claim forms. In fact, the expert found that the claims form certificates may have signed by two or three different persons. In view of this testimony, it is found that Harrison did not author the letter dated February 25 or sign any of the various claim forms. It is further found that Harrison did not receive any financial reward by virtue of her conduct. 4/ However, the remainder of her testimony is not deemed credible, and it is found she had knowledge of the letters and forms, and otherwise aided and assisted Stanley in his efforts to defraud the insurance companies.
A former associate superintendent testified on Harrison's behalf and stated that if the facts in the amended petition were true, it would still not justify her dismissal. However, the witness acknowledged that if Harrison represented herself to various insurance companies as a responsible school official for the purpose of allowing a third party to collect unauthorized benefits, such conduct would be "serious" and would warrant the consideration of dismissal as a penalty.
Harrison's principal could not say whether Harrison's effectiveness as a teacher at Nova Middle School was impaired by virtue of her conduct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).
Respondent's motion to dismiss is denied.
The amended complaint charges Harrison with violating Subsections 231.36(4)(c) and 812.014(1)(a),(b) and (2)(b),
Florida Statutes (1985), and Rules 6B-1.01, 6B-1.03(2)(a), (b) and (d), 6B-1.04, 6B-1.05 and 6B-4.09(2), (3) and (4), Florida Administrative Code. More specifically, petitioner alleges Harrison's conduct constitutes "immorality, misconduct in office, willful neglect of duties and/or moral turpitude."
Subsection 231.36(4)(c), Florida Statutes (1985), provides in relevant part:
(c) Any member of the ... Instructional staff ... who is under continuing contract
may be suspended or dismissed at any time during the school year; however the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
In the case at bar, Harrison has not been convicted of a crime involving moral turpitude. Because the statute specifically requires a conviction in order to prove a violation of moral turpitude, that part of the charges may be readily dismissed. Remaining at issue are the following elements of the statute: immorality, misconduct in office and willful neglect of duties. These terms are not statutorily defined, but reference to Rule 6B-4.09, Florida Administrative Code, is helpful. There, those terms are defined in the following manner:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individu- al concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Educa- tion Profession as adopted in Rule 6B-1.01, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, F.A.C., which is so serious as to impair the individ- ual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or contin- uing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Willful neglect of duty obviously pertains to a continued failure by a teacher to obey reasonable orders given by and with proper authority. These orders must also have some relationship to the teacher's normal exercise of duties. Cf. Smith v. School Board of Leon County, 405 So.2d 185 (Fla. 1st DCA 1981). Because there were no orders given by a school authority to Harrison, and no concomitant refusal to obey the same, this portion of the statute has no relevancy to the factual situation herein.
The evidence clearly establishes that Harrison's conduct was "inconsistent with the standards of public conscience and good morals" and was "sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." Indeed, by clear and convincing evidence petitioner has shown that Harrison participated in Stanley's scheme to defraud three insurance companies of money to which Stanley was not entitled. Therefore, it is concluded that Harrison is guilty of immorality within the meaning of Subsection 231.36(4)(c) and Rule 6B-4.09(2).
Finally, Harrison is charged with misconduct in office. That term is broadly defined as a violation of the Code of Ethics as set forth in Rule 6B-
1.01 and the Principles of Professional Conduct as embodied in Rule 6B-1.06. In addition, the violation must be so serious as to impair the individual's effectiveness as a teacher. 5/
Arguably, only a few of the many standards in Rules 6B-1.01 and 6B-
1.06 have any relevance to the illicit conduct, and none have been cited by petitioner in its proposed order. However, Rule 6B-1.01(3) requires an educator to "achieve and sustain the highest degree of ethical conduct." Rule 6B- 1.06(4)(b) requires that an educator not "intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression." Finally, Rules 6B-1.06(5)(a) and (b) require an educator to "maintain honesty in all professional dealings" and to "report to appropriate authorities any known violation of Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes, of the four standards, the first three clearly apply to conduct in a professional setting, and have no application here. The standard in Rule 6B-1.06 (5)(b) is, however, relevant and has been violated by Harrison. Even so, it must be established that the violation is "so serious as to impair the individual's effectiveness in the school system." The only witness who testified on the subject of effectiveness was respondent's principal, and she could not state whether Harrison's effectiveness as a teacher had been impaired, assuming the charges were true. In the absence of evidence as to the loss of effectiveness, the charge of misconduct in office must be dismissed. Boyette v. State Professional Practices Council, 346 So.2d 598, 600 (Fla. 1st DCA 1977).
Subsection 231.36(4)(c) Florida Statues (1985), provides the range of penalties that may be imposed if the charges against an employee are sustained:
(4)(c) ... if the charges are sustained, (the school board) shall determine either to dismiss the employee or fix the terms under which he may be reinstated.
Although the conduct herein is serious and shows a clear lack of ethics on Harrison's part, it does not pertain to Harrison's duties as an educator, or her relationship to students and peers. Further, her effectiveness as a teacher has not been shown to be impaired. Under these circumstances, suspension for the 1986-87 school year is appropriate, with reinstatement thereafter on a probationary basis for two years, and a return to annual contract status in school year 1989-1990.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and she be
suspended for school year 1986-87 and thereafter reinstated on probationary
status the following two years, with a return to annual contract status in school year 1989-90. All other charges should be dismissed.
DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida.
DONALLD R. ALEXANDER
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 August, 1986.
ENDNOTES
1/ Respondent actually filed a brief which includes thirty-nine unnumbered paragraphs of findings in a section entitled "Statement of Facts." These findings have been ruled upon in the Appendix attached to this order.
2/ It should be noted that Stanley used a different spelling of his last name (Stanly) on the credit application.
3/ The insurance company did not honor the claim for the period June 5, 1984 through August 13, 1984 because of a lack of "sufficient information."
4/ Although Stanley received at least $2,826.58 in benefits from his various claims, none of this was shown to have been given to Harrison.
5/ Rules 6B-1.03, 6B-1.04 and 6B-1.05, which are referred to in the petition for dismissal, have been repealed and accordingly need not be discussed.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0816
Petitioner:
Covered in finding of fact 2.
Covered in findings of fact 6, 9 and 12.
Covered in finding of fact 3.
Covered in finding of fact 1.
Covered in finding of fact 3.
Covered in finding of fact 3.
Covered in finding of fact 3.
Covered in findings of fact 6, 9 and 12.
Covered in finding of fact 9.
Covered in finding of fact 3.
Covered in finding of fact 9.
Covered in finding of fact 8.
Covered in finding of fact 9.
Covered in finding of fact 12.
Covered in finding of fact 12.
Covered in finding of fact 11.
Covered in background.
Covered in finding of fact 18.
Covered in footnote 4.
Covered in finding of fact 3.
Partially covered in background; the remainder was found to be unnecessary.
Covered in findings of fact 1, 3 and 13.
Covered in findings of fact 3 and 13.
Rejected as being contrary to the greater weight of evidence.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 13.
Rejected as being unnecessary.
Rejected as being unnecessary.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in finding of fact 6.
Covered in finding of fact 6.
Respondent:
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in findings of fact 2 and 9.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in findings of fact 3, 7 and 11.
Covered in findings of fact 3, 7 and 11.
Covered in findings of fact 4, 8 and 11.
Rejected as being unnecessary.
Rejected as being irrelevant.
Covered in finding of fact 13.
Covered in finding of fact 13.
Rejected as being contrary to the greater weight of evidence.
Covered in finding of fact 13.
Covered in finding of fact 14.
Covered in finding of fact 14.
Covered in finding of fact 14.
Rejected as being contrary to the greater weight of the evidence.
Rejected as being contrary to the greater weight of the evidence.
Considered in determining the credibility of respondent.
Considered in determining the credibility of respondent.
Covered in finding of fact 9.
Rejected as being irrelevant.
Rejected as being irrelevant.
Rejected as being irrelevant.
Covered in finding of fact 15.
Covered in finding of fact 15.
Covered in finding of fact 15.
Covered in finding of fact 9.
Covered in finding of fact 9.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
The undersigned has numbered the paragraphs in the Statement of Facts section of respondent's brief for ease in ruling on the findings.
COPIES FURNISHED:
T. Whitelock, Esquire 1311 Southeast 2nd Ave.
Ft. Lauderdale, Florida 33316
James E. Brown, Esquire
Courthouse Square Bldg., Suite 603
200 Southeast 6th St.
Ft. Lauderdale, Florida 33301
Mr. William J. Leary Superintendent of Schools Broward County School Board 1320 S.W. Fourth St.
Ft. Lauderdale, Florida 33312
| Issue Date | Proceedings |
|---|---|
| Aug. 12, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 12, 1986 | Recommended Order | Teacher suspended for making fraudulent insurance claims. |
