STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2169

)

JAMES MICKEY, JR., )

)

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 August 4 and October 20, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Phyllis O. Douglas, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William D. DuFresne, Jr., Esquire

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

BACKGROUND

By letter dated April 23, 1987, petitioner, School Board of Dade County, advised respondent, James Mickey, Jr., a continuing contract teacher, that he was suspended for ten workdays effective April 22, 1987, "for incompetency, immorality and misconduct in office." The letter further advised that unless Mickey made restitution of $990 by July 1, 1987, his suspension would be extended an additional twenty workdays. 1/ Thereafter, respondent timely requested a hearing on April 28, 1987, to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on May 15, 1987, with a request that a Hearing Officer be assigned to conduct a hearing. On June 1, 1987, petitioner issued its Notice of Charges which provided greater detail concerning the charges. In brief, it is alleged respondent (a) wrongfully converted to his own use $200 in funds belonging to another, (b) was paid $715 for coaching the high school wrestling team when in fact he did not perform this service, and (c) either falsified or failed to keep adequate records for a work study program by authorizing payment for unperformed work or authorizing payment for ineligible students, in violation of Sections 231.09, 232.022, 232.023, Florida Statutes (1985). Taken as a whole, it is alleged Mickey's conduct constituted incompetency, immorality and misconduct in office as proscribed by Section 231.36, Florida Statutes (1985), and Rule 6B-4.009, Florida Administrative Code.

By notice of hearing dated June 3, 1987, a final hearing was scheduled on August 4, 1987, in Miami, Florida. A continued hearing was held on October 20, 1987, at the same location. At final hearing, petitioner presented the testimony of Johnnie Ruth Brown, Lena Bernstein, Dr. D. Patrick Gray and Lilian Dempsey. It also offered petitioner's exhibits 1-5 which were received into evidence. Exhibit 2 is the deposition of Percy Oliver. Respondent testified on his own behalf and offered the testimony of Shelia Lessem. He also offered respondent's exhibits 1-3 which were received into evidence.

The transcripts of hearing (two volumes) were filed on November 19, 1987. Proposed findings of fact and conclusions of law were filed by the parties on November 30, 1987. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent should be suspended from his job for ten days, or some lesser amount, for the conduct described in the Notice of Charges. 2/

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, James Mickey, Jr., was an occupational placement specialist at Homestead Senior High School (HSHS) in Homestead, Florida. He has taught there since 1979 and has been an employee of petitioner, School Board of Dade County (Board), since 1970.

   
   

2. On April 23, 1987, and as set forth in greater detail on June 1, 1987, petitioner issued proposed agency action alleging that Mickey had (a) wrongfully converted $200 in cash to his own use which belonged to another person, (b) accepted a $715 coaching supplement for services that he did not perform, and

   (c) falsified or failed to keep adequate records for a Work Study Program of which he was in charge. For this, the Board has proposed to suspend Mickey for ten working days, and if he failed to repay $990, to suspend him for an additional twenty working days. The threat of this disciplinary action prompted Mickey to institute this proceeding.

   
   

3. Conversion of Funds - This charge stems from an allegation made by a former student at HSHS who claims she was required to give Mickey $200 of her proceeds derived from working in the Work Study Program in the spring of 1985. As might be expected, the validity of this charge turns on the credibility of the testimony of the "victim" and the accused.

   
   

4. The former student, who is now twenty-one years old and will be identified by her initials, L. D., worked part-time in school year 1984-85 in a work study program at the HSHS "slush house," so named because slush drinks and other munchies were sold there during lunch hour, and from 2:30 p.m. to 6:30

   p.m. each school day. Profits were used for such laudable purposes as purchasing uniforms for the boys and girls school track teams. Sometime in the spring of 1985, Mickey noticed a shortage of funds at the house and suspected foul play, particularly since only he, L. D. and the custodian had keys to the house. Mickey stated he mentioned this to L. D., who denied any impropriety, but who eventually resigned from her job on May 15. Because of the accusations, Mickey contends permanent animosity between him and L. D. was engendered. Whether another student was hired to replace L. D., and if so whom, is not of record.

5. While employed in the program, L. D. kept track of the hours she worked by recording this information on a piece of paper. This was then given to Mickey who placed the information on a time card to calculate her wages. L. D. could not recall what her hourly rate of pay was, or the amount of wages to which she was entitled.

   
   

6. Because of paperwork delays, checks for the work study program participants, such as L. D., were not issued and distributed until August, 1985.

   L. D.'s proceeds totaled in excess of $200 for the semester but she could not recall the specific amount. According to L. D., Mickey brought her check to her house one day and told her to cash it and give him back $200 for payment due another student who had replaced her. He later telephoned her to remind her about the money. After cashing the check on August 28, L. D. went to the school office looking for Mickey. She carried a bank envelope with an undisclosed amount of cash. She first went to the principal's office and related to his secretary that she was going to give Mickey the cash in the envelope because Mickey had told her it was needed to pay another student. Finding this to be somewhat unusual, the secretary took L. D. to the library where they met the assistant principal (Bernstein). The secretary told Bernstein that the "young lady has money" for Mickey. L. D. repeated her story that she had $200 for Mickey that was to be paid to another student. When Mickey could not be found,

   L. D. departed. Neither the secretary or Bernstein saw any cash change hands, and neither knew whether the envelope actually contained $200. Later on, L. D. found Mickey in his office and gave him the $200. There is no evidence that Mickey then gave the money to another student, or returned it to the program. Word of this alleged transaction reached the principal who asked L. D. to write a statement. She did so that day although she wrote portions of it at two separate times. The statement generally corroborates L. D.'s testimony given at hearing. Respondent does not deny meeting with L. D. in his office on the morning of August 28 but denies receiving any money. However, L. D.'s testimony is deemed to be the most credible and persuasive, is corroborated by other independent testimony, and is hereby accepted.

   
   

7. Coaching Supplement - Mickey has been a coach of various athletic teams at HSHS for a number of years. Under school policy, a coach was given a salary supplement as compensation for the additional hours devoted to coaching a team.

   
   

8. Prior to school year 1984-85, Mickey had served as head coach of both the men and women track teams and had received two supplements for his services. However, his request to coach both teams in 1984-85 was eventually turned down since school policy did not permit a person to serve as head coach for two teams at the same time. While the record suggests that Mickey may have actually performed head coaching services for the two teams during the first part of school year 1984-85, he was compensated only as head coach of the boys cross- country track team. Its season began in August, 1984, and required his services until around 7:00 p.m. or later each school day. To Mickey's credit, his team won the state championship that year. For these services, Mickey received a salary supplement.

   
   

9. After learning that his request to coach the two track teams (and receive two supplements) had been rejected, Mickey met with the HSHS principal, Percy Oliver, in early January, 1985, to see if he could earn the supplement in another manner. He was told of an opening for an assistant coach on the wrestling team that would pay a $715 supplement. Although the wrestling season had already begun in November, and would end in February, Oliver approved Mickey's request to serve as assistant coach for the wrestling team. To earn

   the supplement, Oliver stated it was necessary for Mickey to "go out and assist the kids' wrestling coach" and attend practices and meets. In an interview prior to hearing, Mickey acknowledged receiving the $715 even though he failed to attend any practices or meets. The only duty he could recall performing was advising the head coach on unspecified "rules and procedures." He also stated he did not deserve the supplement for wrestling duties, but was entitled to the extra compensation for his other school activities. At hearing, Board witness Gray described what he considered to be the normal duties of an assistant wrestling coach in an effort to show that Mickey did not earn his supplemental pay. However, Gray's testimony was drawn from his own coaching experience in the late 1960s, and is deemed to be too remote to be relevant to this proceeding. Even so, it is found Mickey was not entitled to compensation for serving as an assistant wrestling coach in school year 1984-85 since he did not perform the duties expected of an assistant coach.

   
   

10. Recordkeeping - During school years 1983-84 and 1984-85, Mickey was in charge of a "work study program" at HSHS. As such, he had the responsibility of keeping records for the program and authorizing payment to students. This program is designed to provide on-the-job training to students enrolled in vocational educational programs who are otherwise qualified. Students were then compensated at the rate of $3.25 per hour for their services which could not exceed twenty hours per week. Mickey acknowledged he was familiar with the recordkeeping requirements of the program, since he had been involved with work study programs for some fifteen years.

    
    

11. To be eligible for the program, a student must have been enrolled in a vocational educational program at HSHS, and be a member of a family meeting certain income criteria. In this regard, the program is funded by a federal grant, and income criteria are published annually by the federal government. As a prerequisite to enrollment students are obliged to fill out a form entitled Vocational Work Study Student Income Determination. The form must be signed by the parent or guardian, and reflect the number of members in the family as well as the annualized family income. The form itself does not require additional income verification by the parents but Mickey stated they sometimes attached additional income verification to the form, such as a W-2 form. Although it was Mickey's responsibility to verify the students' eligibility, he indicated that if the information submitted facially complied with the eligibility requirements, he made no further inquiry.

    
    

12. Students enrolled in the program were to be paid every two weeks. Before payment could be made, it was necessary for the supervising teacher (Mickey) to submit paperwork to the Board's county-wide coordinator (Joseph Zaher) where the program payroll was processed. Through testimony from another work-study program supervisor, it was established that preparation of paperwork was sometimes "delayed," but never more than for a few weeks. In Mickey's case, the completed paperwork was not submitted until at least June, 1985, or after the regular school year had ended, and checks were not issued until July or August. Therefore, the students were not paid biweekly as they should have been. It is also noted that the actual paperwork was prepared by a former student, D. M., rather than by Mickey himself. Mickey blamed the delay on the "downtown office," saying one set of paperwork sent in March had been lost, and this forced him to send a second set to Zaher in June or July. Even if this is true, Mickey did not timely supply the first set of paperwork, and he was negligent in not following up on the matter to ensure that the students were promptly paid.

13. The notice of charges alleges that certain students were paid for work not performed. The pertinent program "write-in roster" and attendance cards reflect that student K. M. attended an out of town track meet on May 9 and 10, 1985 but was also paid for working in the work study program on the same days. Even though K. M. was assisting Mickey at the track meet, she was not eligible for payment in the program. In the case of student T. M., Mickey relied upon a time sheet approved by another teacher and cannot be held accountable for that teacher's error. The student was also paid for working for the registrar on March 7, 8 and 20, 1985, even though he was absent from school on those days. This was improper. Mickey gave no explanation for this error except to say that he had no "guidelines" for administering the program. As to student L. D., payroll records reflect she worked after May 15, 1985, when, in fact, she quit on that date. No explanation for this variance was given by Mickey except to say he believes she received pay only for actual work performed.

    
    

14. The notice also alleges several students were allowed to enroll in the program even though they were ineligible. At hearing, Mickey stated that although he knew he had an obligation to verify eligibility, he accepted without further checking the information given by the parents on the enrollment form. The pertinent records reflect that students T. M., K. M., L. D., M. W. and T. C. did not provide proof that they were either income eligible or enrolled in a vocational program. They also reflect that one person, D. M., was allowed to work in the program from February through April, 1984, even though she had graduated from HSHS in January, 1984.

    
    

15. Although there are a number of mistakes, errors and omissions in the work study program records, and they failed to comply with Board recordkeeping requirements, there is no evidence that Mickey intentionally violated any program rule or regulation, or applicable state recordkeeping requirements.

    
    

16. Miscellaneous - The Board investigated the charges against Mickey, and the results of its audit were published in a local newspaper. As a result of such notoriety, it was established that Mickey's effectiveness as a teacher had been impaired.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

    
    

18. Respondent is charged with having committed acts which constitute incompetency, immorality and misconduct in office. These terms are defined in Rule 6B-4.009, Florida Administrative Code (1987), as follows:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required

       duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of

       Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

    2. 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

       individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    3. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

       * * *

       
       

       The Board's Notice of Charges goes on to state that, by Mickey violating the above rules, it has a sufficient basis under Subsection 231.36(4)(c), Florida Statutes (1985), to take disciplinary action against respondent. In this case it chooses to suspend him for ten days.

       
       

19. Also cited by the Board as being relevant to this proceeding are Sections 231.09, 232.022 and 232.023, Florida Statutes (1985), which generally pertain to the maintenance of certain records by instructional personnel. These sections read as follows:

    
    

    231.09 Duties of instructional personnel.-- Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently

    and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

    
    

    1. Attendance defined. The attendance of all public school pupils shall be checked each school day in the manner prescribed by regulations of the state board and recorded in the teacher's register or by some approved system of recording attendance. Pupils may be counted in attendance only if they are actually present at school or are away from school on a school day and are engaged in an educational activity which constitutes a part of the school-approved instructional program for the pupil.

       
       

    2. Falsification of attendance records; penalty. The presentation of reasonable and satisfactory proof that any teacher, principal, or other school personnel or school officer has falsified or caused to be falsified attendance records for which he is responsible shall be sufficient grounds for the revocation of his teacher certificate by the Department of Education or for dismissal or removal from office.

    
    

20. Finally, the Board has relied upon Rules 6B-1.001 and 6B-1.006, Florida Administrative Code (1987) as being germane to this proceeding. The former rule sets forth the Code of Ethics of the education profession while the latter rule defines the rather lengthy principles of professional conduct which govern the education profession. It is noted, however, that disciplinary action will not lie against a licensee for contravening the terms of Rule 6B-1.006, Florida Administrative Code (1987). See, for example, Ralph B. Turlington v. Carroll, 5 F.A.L.R. 207-A (Dept. of Education 1982).

    
    

21. The evidence reflects respondent wrongfully converted $200 from a student for his own personal use. This constitutes immorality and misconduct in office within the meaning of Section 231.36, Florida Statutes (1985), and Rule 4B-4.009, Florida Administrative Code (1987).

    
    

22. The evidence further shows that Mickey accepted a $715 coaching supplement although he did not perform the services required of that job. This also constitutes immorality and misconduct in office within the meaning of the law.

    
    

23. Finally, the evidence supports a conclusion that respondent failed to perform various duties relative to recordkeeping for the work study program as required by Section 231.09, Florida Statutes (1985). However, there is insufficient evidence to establish that Mickey falsified records (s. 232.023) or otherwise failed to keep required attendance records for his students (s. 232.022). Since there are repeated instances of failing to comply with recordkeeping duties, the conduct equates with inefficiency within the meaning of Rule 6B-4.09(1)(a), Florida Administrative Code (1987).

24. Given the nature of the violations herein, the Board's suggested ten day suspension without pay is appropriate. It is also noted that the Board holds $990 previously paid by Mickey pending the outcome of this proceeding. Since Mickey did not render services for his wrestling coaching supplement, $715 should be retained by the Board. Further, since $200 was wrongfully appropriated from student L. D., an audit of L. D.'s records should be made to determine if she is entitled to any portion of that amount. The balance of the

    $200, if any, should be retained by the Board. The remaining $75 should be repaid to Mickey.

    
    

25. In his proposed order, respondent points out that the Notice of Charges erroneously makes reference to him receiving two unearned coaching supplements valued at $990 when in fact he received only one supplement valued at $715. Accordingly, in order to be consistent with the Notice of Charges, respondent contends he should be required only to repay $715 to the Board. However, this matter was not raised until after hearing, and any objection to the clarity of the Notice of Charges is therefore waived. Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3rd DCA 1983).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding respondent guilty of

those charges set forth in the conclusions of law, and that he be suspended from

his position for ten days without pay. Petitioner should also dispose of the

$990 in a manner consistent with paragraph 8 of the conclusions of law.

DONE AND ORDERED this 9th day of December, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1987.

ENDNOTES

1/ Mickey timely paid the $990 subject to the outcome of this proceeding.

2/ The Board has stipulated that, assuming the charges are proven, a ten day suspension is the maximum penalty that should be imposed.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2169

Petitioner:

1. Covered in findings of fact 1, 10 and 11.

2. Covered in findings of fact 10 - 14.

3. Covered in finding of fact 13.

4. Covered in finding of fact 13.

5. Covered in finding of fact 14.

6. Covered in finding of fact 14.

7. Rejected as being unnecessary since D. M. was already ineligible because she was not a student as HSHS.

8. Covered in finding of fact 14.

9. Covered in finding of fact 15.

10. Covered in finding of fact 12.

11. Covered in finding of fact 12.

12. Covered in finding of fact 12.

13. Covered in finding of fact 8.

14. Covered in finding of fact 9.

15. Not accepted as being too remote in time to be relevant.

16. Covered in finding of fact 9.

17. Covered in finding of fact 9.

18. Covered in finding of fact 9.

19. Covered in finding of fact 5.

20. Covered in finding of fact 5.

21. Covered in finding of fact 5.

22. Covered in finding of fact 5.

23. Covered in finding of fact 16.

24. Covered in finding of fact 16.

Respondent:

1. Rejected as unnecessary.

2. Covered in finding of fact 1.

3. Covered in finding of fact 2.

4. Covered in finding of fact 10.

5. Covered in finding of fact 13.

6. Rejected as being contrary to the evidence.

7. Covered in finding of fact 14.

8. Rejected as being contrary to the evidence

9. Covered in background except the Notice refers to $715, and not $750.

10. Covered in conclusions of law

11. Covered in findings of fact 8 and 9

12. Rejected as being contrary to the evidence

13. Rejected as being contrary to the evidence

14. Covered in finding of fact 4

15. Covered in findings of fact 4 and 5

16. Covered in findings of fact 4 and 5

17. Rejected as being contrary to the more credible and persuasive evidence.

COPIES FURNISHED:

Phyllis O. Douglas, Esquire Suite 301

1450 Northeast Second Avenue Miami, Florida 33132

William D. DuFresne, Jr., Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Karen B. Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Docket for Case No: 87-002169

Orders for Case No: 87-002169