STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5040

)

MONICA CHISHOLM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 22, 1989, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: William DuFresne, Esquire

DuFresne & Bradley, P.A.

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

ISSUE

The central issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so whether those acts constitute misconduct in office, immorality, conduct unbecoming a School Board employee and/or employee misconduct, and thereby constitute just cause for the suspension and termination of Respondent's employment as a teacher.

INTRODUCTION

At the formal hearing the Petitioner presented the testimony of five witnesses and offered eleven exhibits into evidence. The Respondent testified on her own behalf. The Respondent did not offer any exhibits. A transcript of the hearing was filed on March 20, 1989, and thereafter both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All of the proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.

FINDINGS OF FACT

Based on the evidence received at the formal hearing in this case, I make the following findings of fact:

1. The Respondent, Monica Chisholm, was employed by Petitioner from 1984 until September 28, 1988, pursuant to several annual contracts. During the 1987-88 school year, while employed as a teacher at Miami Jackson High School, the Respondent was given and accepted the responsibility of a senior class

   sponsor, which responsibility included coordinating and preparing activities for graduating seniors. Those activities included an activity known as "Grad Nite."

   
   

2. In her capacity as a sponsor, the Respondent was charged with the duties of collecting money from students, issuing accurate receipts for the money collected, and depositing the money with the school treasurer. At Miami Jackson Senior High School explicit procedures for the handling and accounting of money were in effect. These procedures required that: (a) money be collected only during specific times and only at specific locations, (b) money be deposited with the school treasurer on a daily basis, and (c) in no event was a sponsor to retain money in excess of $50.00 overnight. These procedures were set forth in the sponsor's handbook, which was distributed to all sponsors. The procedures were also discussed during workshops held twice each year. The Respondent was admittedly aware of these mandatory procedures.

   
   

3. Two receipt books were issued to the Respondent for the purpose of accounting for money received from students for "Grad Nite." One receipt book was Series 500; the other was Series 600.

   
   

4. In May of 1988, Sophia Jackson, a student who had paid the Respondent

   $100 towards her participation in "Grad Nite," requested a refund. The Respondent prepared a fraudulent receipt and a check requisition form for Sophia Jackson. The fraudulent receipt was prepared by photocopying, from the 600 series receipt book, the receipt that had been issued to another student, removing the other student's name, and writing the name of Sophia Jackson in place of the other student's name. The Respondent, with intent to deceive, presented the fraudulent receipt copy, along with a written request for a refund, to Ms. Charlotte Wright, the school treasurer. Ms. Wright compared the fraudulent receipt to her copy of the original receipt, noticed the difference in names, and reported the matter to the school principal, Mr. Freddie Woodson.

   
   

5. Mr. Woodson confronted the Respondent about the altered receipt. During the course of that confrontation, it became obvious that there were irregularities in the Respondent's handling of student funds. Mr. Woodson then demanded that the Respondent turn in the two receipt books that had been issued to her. At that time the Respondent had with her only the 600 series receipt

   book, and she had to return to her home to retrieve the 500 series receipt book. Upon review of the two receipt books, Mr. Woodson determined that the Respondent had collected a total of $2,716 that had not been turned in to the school treasurer.

   
   

6. The Respondent's initial explanation to Mr. Woodson was that over two thousand dollars had been stolen from her briefcase while she was absent from school due to an injury. Prior to the confrontation with Mr. Woodson, the Respondent had not made any report of a theft from her briefcase, even though she claimed to have discovered it several weeks before the confrontations.

   
   

7. Mr. Woodson demanded that the Respondent immediately turn over any remaining money in her possession. The Respondent failed to do so. Instead, she delivered a written statement in which she admitted to having used some of the money collected from students for her own personal use. In fact, the Respondent had misappropriated to her own use all of the $2,716 she had collected and failed to turn in to the school treasurer. Thereafter, a criminal

   complaint was filed in the State Attorney's Office and the Respondent was charged with grand theft, a felony offense.

   
   

8. The suspicious circumstances surrounding the Respondent's failure to account for a substantial sum of money became known to various people in the school, including Ms. Young, Ms. Timson, Mrs. Wright, Officer Covington, and members of the school clerical staff who typed or otherwise handled papers with relevant information. In addition, law enforcement personnel and other school administrators became aware of the facts regarding the Respondent's mishandling of the students' money.

   
   

9. The Respondent's misappropriation of funds collected from students and her attempt to obtain a refund through fraudulent means constitute the exploitation of professional relationships with students for personal gain or advantage and also constitute a use of an institutional privilege for personal gain or advantage. Such conduct also impairs the Respondent's effectiveness as an employee of the school system.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and the applicable legal principles, I make the following conclusions of law:

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sec. 120.57, Fla. Stat.

    
    

11. Section 231.36(6)(a), Florida Statutes, provides in pertinent part:

    
    

    Any member of the instructional staff...may be suspended or dismissed at any time during the term of the contract; however, the charges against him must be based on just cause as provided in paragraph (1)(a).

12. Section 231.36(1)(a), Florida Statutes, provides in pertinent part: Just cause includes, but is not limited to,

    misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

13. The Respondent is charged with having committed acts which constitute immorality and misconduct in office. Rule 6B-4.009, Florida Administrative Code, provides as follows in pertinent part:

    
    

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges are hereby defined:

    (1) ...

    1. 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.

    2. 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.

       
       

14. Relevant portions of the Code of Ethics include the following from subsections (2) and (3) of Rule 6B-1.001, Florida Administrative Code:

    
    

    1. .. .The educator will therefore

       strive for professional growth and will seek to exercise the best professional judgment and integrity.

    2. Aware of the importance of maintaining the respect and confidence of

       one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

       
       

15. Relevant portions of the Principles of Professional Conduct include the following from Rule 6B-1.006, Florida Administrative Code:

    
    

    1. Obligation to the student requires that the individual:

       * * *

       (f) Shall not intentionally violate or deny a student's legal rights.

       * * *

       (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

       * * *

    2. Obligation to the public requires that the individual:

       * * *

       (c) Shall not use institutional

       privileges for personal gain or advantage.

       * * *

    3. Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

    * * *

    (g) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

16. The evidence in this case establishes that the Respondent misappropriated $2,716 of money collected from students and that she submitted

fraudulent documents for the purpose of inducing the payment of a $100 refund. These acts constitute immorality and misconduct in office within the meaning of Section 231.36, Florida Statutes, and Rule 6B-4.009, Florida Administrative Code. See School Board of Dade County v. James Mickey, Jr.. DOAH Case No. 87- 2169 (Recommended Order 12/09/87, Final Order 01/06/88), in which it was concluded that a teacher's conversion to his own use of $200 belonging to a student constitutes immorality and misconduct in office.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the School Board of Dade County issue a final order in this case terminating the employment of the Respondent as a teacher in the Dade County Public Schools.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May 1989.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5040

The following are my specific rulings on all proposed findings of fact submitted by all parties:

Findings proposed by Petitioner: Paragraphs 1 through 4: Accepted.

Paragraph 5: Accepted in substance, with exception of last sentence. Last sentence is rejected as subordinate and unnecessary details.

Paragraphs 6 through 8: Accepted in substance. Paragraph 9: Rejected as irrelevant.

Paragraph 10: Accepted in substance. Paragraph 11: Rejected as irrelevant.

Paragraph 12: First two sentences rejected in part as subordinate and unnecessary details and in part as unduly repetitious. Last sentence accepted in substance.

Paragraphs 13 and 14: Accepted in substance.

Paragraph 15: Rejected as subordinate and unnecessary details.

Paragraph 16: The substance of the last three lines of this paragraph is accepted. The remainder of the paragraph is rejected as constituting legal argument or proposed ultimate conclusions of law.

Findings proposed by Respondent:

Paragraph 1: Accepted.

Unnumbered paragraph following paragraph 1: Accepted.

Paragraph 2: Rejected as contrary to the greater weight of the evidence and as not supported by competent substantial details. (The Respondent's testimony regarding the theft of funds is simply unconvincing..)

Paragraphs 3 through 5: Accepted in substance.

Paragraph 6: Portion dealing with failure to properly collect and turn in funds is accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence.

Paragraph 7: Rejected in part as constituting agreement rather than proposed findings and in part as contrary to the greater weight of the evidence.

COPIES FURNISHED:

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

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

William DuFresne, Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 88-005040

Orders for Case No: 88-005040