STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES F. BLALOCK, JR., )

as District School Superintendent ) Suwannee County, Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0740

)

JANETTE WALLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on April 2, 1990 in Live Oak, Florida.

APPEARANCES

For Petitioner: J. Victor Africano, Esquire

Post Office Box 1450 Live Oak, Florida 32060

For Respondent: No appearance

STATEMENT OF THE ISSUES

1. Whether, under the facts and circumstances of this case, Respondent is guilty of having been convicted of a crime of "moral turpitude" and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes.

   
   

2. Whether, under the facts and circumstances of this case, Respondent is guilty of having been absent without authorized leave in violation of Section 231.44, Florida Statutes, and thereby subject to having her employment terminated for just cause by the Petitioner in accordance with Section 231.36(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

On December 18, 1989 the Petitioner, Charles F. Blalock, Jr. as District School Superintendent, Suwannee County, Florida suspended, without pay, the Respondent, Janette Walls, a teacher, employed by the Suwannee County District School Board (Board) at Suwannee Elementary West. By an undated Petition For Discharge And Notice Of Charges filed with the Board and personally served on Respondent on January 9, 1990, the Petitioner sought to have Respondent's employment with the Suwannee County School District terminated based on allegations that the Respondent had been adjudicated guilty of several charges

of passing worthless checks, a crime of "moral turpitude" and just cause for termination of employment under Section 231.36(1)(a), Florida Statutes, and that the Respondent had been absent without authorized leave in violation of Section 231.44, Florida Statutes, which constitutes grounds for termination of employment. By letter addressed to Petitioner and dated January 18, 1990 the Respondent requested a formal hearing to be conducted by a hearing officer of the Division of Administrative Hearings pursuant to Section 231.36(3)(e)4.b., Florida Statutes, as allowed by Section 231.36(6)(a), Florida Statutes. By letter addressed to the Petitioner dated December 4, 1989 the Respondent submitted her resignation from the Suwannee County School District. The letter is stamped received by the Board on March 1, 1990. The Board voted on March 21, 1990 not to accept Respondent's resignation, and on March 27, 1990 the Petitioner filed a Supplemental Petition For Discharge And Notice of Charges adding an additional allegation that Respondent had been adjudicated guilty of an additional 9 separate charges of passing worthless checks in Columbia County, Florida. By ore tenus motion the Petitioner moved to amend the Petition For Discharge and Notice Of Charges to include those in the supplemental petition.

The motion was granted and this matter proceeded forward on the Amended Petition For Discharge And Notice of Charges as the charging document.

In support of his Amended Petition For Discharge And Notice of Charges the Petitioner testified on his own behalf and presented the testimony of Willie M. Carter and Charles M. Sweat. Petitioner's composite exhibit 1A through 1Y and exhibits 2, 3, 4 and 5 were received into evidence. Respondent not being present at the hearing offered no evidence, but did write a letter that was filed with the Division of Administrative Hearings on April 4, 1990 explaining her absence from the hearing and other matters. By letter dated April 12, 1990 counsel for Petitioner advised the undersigned of Petitioner's receipt of Respondent's letter and conveyed to the undersigned that Petitioner, in fairness to Respondent, would not object to the undersigned considering the matters set forth in Respondent's letter.

No transcript has been filed with the Division of Administrative Hearings in this case. By letter dated April 4, 1990 the Petitioner waived the filing of Proposed Findings of Fact and Conclusions of Law. No Proposed Findings of Fact and Conclusions of Law has been filed by the Respondent.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Charles F. Blalock, Jr., was the duly elected Superintendent of Schools of Suwannee County, Florida.

   
   

2. At all times material to this proceeding, Janette Walls was a member of the instructional staff of the Suwannee County School District, employed by the District School Board of Suwannee County, Florida (Board) under an annual contract. While a written annual contract had not been executed between the Board and the Respondent for the 1989-1990 school year due to Respondent's being on maternity leave the first 9 weeks of the 1989-1990 school year, the contractural relationship was the same as set forth in the 1988-1989 annual contract (except for salary which is not in dispute) executed by the Board and the Respondent which provided for dismissal for just cause during the term of the contract as required by Section 231.26(1)(a), Florida Statutes.

3. The Respondent plead Nolo Contendere to the charge of passing worthless checks to Pic N Save in the amount of $50.10, Jiffy Food Store in the amount of

$35.00, Suwannee Pack in the amount of $25.00, Suwannee Pack in the amount of

$40.53 and Jiffy Food Store in the amount of $21.47 in Case Numbers 89- 1103 MN, 89-1127 MN, 89-1128 MN, 89-1135 MN and 89-1203 MN in the County Court, Suwannee County, Florida. The court in each case adjudicated the Respondent guilty and ordered restitution and assessments in the total amount of $712.10 and placed the Respondent on supervised probation for a period of 12 months in each case.

There was no evidence presented as to whether the Respondent paid any of the restitution and assessments ordered in these cases.

4. In Case Numbers 89-1170 MN, 89-1171 MN, 89-1172 MN, 89-1173 MN (orders

dated June 5, 1989), 89-1179 (order dated June 6, 1989), 89-1211 MM, 89-1212 MN

(orders dated June 14, 1989), 89-1798 MN (order dated August 21, 1989) and 89- 1799 MN (order dated August 23, 1989) in the County Court of Columbia County, Florida the Respondent plead guilty to the charges of passing worthless checks in the amount of $37.42 to Suwannee Swifty on May 5, 1989, $47.63 to Suwannee Swifty on May 6, 1989, $49.86 to Suwannee Swifty on May 5, 1989, $13.00 to Suwannee Swifty on May 9, 1989, $35.00 to Suwannee Swifty on Nay 8, 1989, $6.86 to S & S Store #5 on May 16, 1989, $8.70 to S & S Store #5 on May 9, 1989,

$25.00 to Suwannee Swifty on May 9, 1989 and $37.52 to Suwannee Swifty on May 16, 1989. As a result of her plea in the above-cited cases the court adjudicated the Respondent guilty, ordered her to pay restitution and court costs and placed her on probation. There was no evidence presented to show whether the Respondent paid the restitution and assessments ordered in these cases.

5. In Case Numbers 89-478 MN, 89-479 MN, 89-480 MN, 89-647 MN, 89-648 MN,

89-649 MN, 89-650 MN, 89-651 MN. 89-652 MN, 89-653 MN and 89-702 MN in the

County Court of Hamilton County, Florida the Respondent plead guilty to the charge of passing worthless checks in the amount of $30.34, $60.00, $60.00,

$57.00, $68.91, $62.00, $55.29, $72.45, $65.00, $52.48 and $46.32. On August 4,

1989 the court adjudicated Respondent guilty in Case Numbers 89-478 MN, 89-479 MN and 89-480 MN and ordered the Respondent to pay restitution plus $300.00 in court costs. The Court also placed Respondent on 6 months probation in each case. On December 1, 1989 the court adjudicated the Respondent guilty in Case Numbers 89-647 MN through 89-653 MN and 89-702 MN and sentenced her to 4 months in the Hamilton County Jail with a condition for her release upon her serving 30 days and paying costs and restitution in the amount of $1,279.45. Respondent was incarcerated from on or about December 1, 1989 until on or about December 18, 1989.

1. Respondent was granted personal leave for December 1, 1989. During the school week of December 4 - 8, 1989 Respondent's mother called in to advise the school that the Respondent was sick and that her father was either ill or had died and Respondent would not be in to teach and requesting sick leave for the Respondent.

   
   

2. Sometime during the following week of December 11 - 15, 1989 Respondent's mother called again and requested further sick leave for Respondent.

   
   

3. On all occasions when sick leave was requested, it was made clear that Respondent would have to fill out a request for sick leave. On December 19, 1989 when Respondent returned to school she completed and signed three Claim For Leave Compensation forms requesting sick leave for the periods of December 4-8, 1989, December 11 & 12, 1989 and December 13 - 15 & 18-19, 1989. It is apparent

   that Charles M. Sweat, Principal of Suwannee Elementary West signed the Respondent's leave requests recommending approval without paying any attention to who was requesting the sick leave because upon learning that he had signed Respondent's leave request knowing of her incarceration in the Hamilton County Jail prior to his signing the leave requests, he attempted to "white-out" his signature. The request for leave was never approved by the Petitioner, which is required, although such approval may be in some cases after the fact.

   
   

4. Respondent may have been paid for this leave time by the Board and, if so, could be considered as approval of the requested leave after the fact; however, there is insufficient evidence to show that the Board did in fact pay the Respondent for this leave time.

   
   

5. The Respondent was absent from her work at Suwannee Elementary West without authorized leave for the period of time of December 4 - 8, 11- 15 and 18-19, 1989.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes, and Section 231.36(3)(e)4.b., Florida Statutes, as authorized by Section 231.36(6)(a), Florida Statutes.

   
   

7. Section 231.36(6)(a), Florida Statutes, makes it abundantly clear that any member of the instructional staff of any district school system may be dismissed during the term of the contract provided for by Chapter 230, Florida Statutes; however, the charges must be based on just cause as provided in Section 231.36(1)(a), Florida Statutes, which includes, among other things, "conviction of a crime involving moral turpitude".

13 Respondent's conduct in passing the 25 worthless checks violates the moral standard required of teachers by the statutes and the community, and rises to the level of "moral turpitude". Therefore, having been adjudicated guilty by the Court in all 25 cases of passing worthless checks the Respondent has been "convicted of a crime involving moral turpitude" as that term is defined in Rule 6B-4.009(6), Florida Administrative Code. See Adams v. State Professional Practice Council, 406 So.2d 1170 (1 DCA Fla. 1981)

1. Section 231.44, Florida Statutes, grants the district school board authority to terminate the employment of an employee who is willfully absent from duty without leave. While the Respondent may not have willfully incarcerated herself, she did willfully commit the acts which resulted in her incarceration that resulted in her being absent from her duties as a teacher at Suwannee Elementary West. Additionally, Respondent then attempted to cover her incarceration by not being entirely truthful when requesting leave to cover the period of incarceration.

   
   

2. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct is based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner must prove all of the material allegations of the Amended Petition For Discharge and Notice of Charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987). The Petitioner has sustained his burden.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is,

RECOMMENDED that the Suwannee County District School Board enter a Final Order terminating Respondent, Janette Walls' employment with the Suwannee County School District effective January 9, 1990, the date Respondent was suspended without pay.

DONE AND ENTERED this 25th day of April, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 25th day of April, 1990.

COPIES FURNISHED:

Honorable Charles F. Blalock, Jr. District School Superintendent, Suwannee County, Florida

224 West Parshley Street Live Oak, Florida 32060

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

J. Victor Africano Post Office Box 1450 Live Oak, Florida 32060

Ms. Janette Walls

843 Alderman Road # 531

Jacksonville, Florida 32211

Docket for Case No: 90-000740

Orders for Case No: 90-000740