STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK W. SIMONSON, as )

SUPERINTENDENT OF SCHOOLS, ) DISTRICT OF BAY COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4598

)

SHELBY FINCH, )

)

Respondent. )

) JACK W. SIMONSON, as )

SUPERINTENDENT OF SCHOOLS, ) DISTRICT OF BAY COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4599

)

BETTYE GATES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on December 18, 1990.

APPEARANCES

For Petitioner: Franklin R. Harrison, Esquire

Post Office Drawer 1579

Panama City, Florida 32402-1579

For Respondents: Thomas W. Brooks, Esquire

2544 Blairstone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondents committed any acts which would subject them to termination of employment or disciplinary action.

PRELIMINARY STATEMENT

On May 22, 1990, Respondents, Bettye Gates and Shelby Finch, were suspended without pay from their employment with the Bay County School System, Transportation Department. On July 24, 1990, separate Administrative Complaints were filed against Respondents alleging that Respondents had attempted to receive reimbursement for travel expenses which they had not incurred. Both Respondents disputed the allegations of the Administrative Complaints and requested a formal administrative hearing. Pursuant to the Respondents' request, the Administrative Complaints were forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called three witnesses and introduced four exhibits into evidence. Respondents testified in their own behalf and called five additional witnesses. By stipulation of the parties, twelve joint exhibits were also introduced into evidence.

Petitioner and Respondents filed Proposed Recommended Orders on February 28, 1991, and February 25, 1991, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Bettye Gates has been employed by the Bay County School Board since 1983. Ms. Gates was employed as a bus driver from 1983 through 1984. In 1985, Ms. Gates was promoted to District Route Specialist and worked in the Transportation Department's office. In that capacity, She supervised the bus drivers. However, she did not have any responsibility for travel vouchers and their reimbursement. In 1987, because Ms. Gates did not like her new job, she elected to transfer back to being a bus driver. Ms. Gates has maintained her position as a bus driver through the present time. Since 1983, Ms. Gates has had only two or three overnight field trips in her capacity as a bus driver. None of these trips were similar enough to the overnight field trip in this case to permit any inferences as to Ms. Gates' knowledge or intent in regards to her alleged attempts to improperly seek reimbursement for travel expenses she did not incur.

   
   

2. Shelby Finch has been employed by the Bay County School Board since 1987. She was employed as a bus driver. Ms. Finch has maintained that position through the present time. She had not participated in any overnight field trips prior to the overnight field trip involved in this case. She, therefore, had no experience regarding reimbursement procedures for such trips. /1

   
   

3. Ms. Gates' employment extended back to a time period during which Malcolm Murphy was the Supervisor of Transportation and supervised the bus drivers. During that time period, several bus drivers slept in their buses on overnight field trips. Mr. Murphy did not like bus drivers sleeping on their buses and instituted a policy that bus drivers had to stay in motel rooms or with friends when on overnight trips. In order to insure compliance with his policy, Mr. Murphy required that bus drivers bring back a receipt or some type of evidence that they had in fact stayed in a motel room and the time period during which they had stayed. This new policy and its requirements were communicated to all the bus drivers in a meeting held in early 1980.

4. Since the time of Mr. Murphy's policy, other administrators have come and gone in the Bay County School System. The current supervisor is Leonard Conway. Mr. Conway never instituted a policy similar to Mr. Murphy's. He was never even aware of such a policy. More importantly, however, for purposes of examining the intent of Respondents, Mr. Murphy's policy was never rescinded during any of the later administrations, including Mr. Conway's administration. As far as the bus drivers were concerned and these particular Respondents were concerned, Mr. Murphy's policy was still in full force and effect.

   
   

5. The Bay County School Board maintains a system of employee reimbursement for expenses incurred by an employee on behalf of the school system. There are two types of reimbursement plans which can be requested. The two plans are known as per diem reimbursement and expenses reimbursements. Per diem reimbursement reimburses the employee at a flat per day rate. The rate varies according to the amount of time the employee is away from his or her base of employment. Expenses reimbursement reimburses the employee for the actual expenses incurred while away from his or her base of employment. Per diem reimbursement does not require receipts to be submitted to obtain the reimbursement. 2 Expenses reimbursement does generally require receipts to be submitted for reimbursement. The reimbursement plan which nets the employee the most money is the one which the School Board follows for payment of the employee.

   
   

6. In order to claim reimbursement for travel expenses, each bus driver, prior to going on an out of town field trip, fills out a Temporary Duty Assignment (TDY) form. Each driver fills out only a portion of the TDY form. The portion the driver completes includes a decision as to whether the driver intends to claim reimbursement for actual expenses or per diem expenses. When the driver returns from the out of town trip, the driver fills out a travel reimbursement voucher. Again the driver only fills out a portion of the reimbursement voucher. In essence, the driver fills in the dates, times and destination of travel and signs the form essentially in blank. These forms are physically located in the hallway outside the Transportation office. The directions for filling out these forms are also located in this hallway. However, because there is a general belief in the Transpotation Department's office that the bus drivers are incapable of understanding the expense forms or the travel policies, the Transportation Department has essentially remove the bus drivers from direct responsibility for properly filling out these travel forms and has placed that responsibility in an overworked confidential secretary named Amber Bullard.

   
   

7. If the driver brings in receipts then Ms. Bullard will determine the best method of reimbursement for the bus driver, regardless of whether the bus driver has indicated a method of reimbursement on the TDY form. In fact, if the driver has indicated a certain method of reimbursement on the TDY form and Ms. Bullard determines that the driver would receive more money under the other method of reimbursement she will change the drivers TDY form to request the method she believes is more appropriate and submit the altered paperwork to the finance office for payment to the driver. Ms. Bullard makes the decision to alter the driver's forms without consultation with the driver.

   
   

8. On April 25, 1990, Ms. Finch and Ms. Gates drove two buses to Orlando, Florida for a Latin Club field trip. The trip lasted from April 25, to April 28, 1990.

9. Prior to leaving on the field trip, Ms. Finch and Ms. Gates filled out Temporary Duty Assignment forms requesting reimbursement for overnight expenses. The portion of the form they filled out gave the date and time that they would be gone, the number of nights they expected to be out and the type of reimbursement they were requesting. Both Respondents requested per diem reimbursement. They did not request reimbursement for actual expenses.

   
   

10. Also, prior to the field trip, another driver warned Ms. Finch to be careful because the administration would be watching Ms. Gates. Ms. Finch informed Ms. Gates about the warning and Ms. Gates told Ms. Finch that she had felt the administration had been watching her closely ever since she returned to being a bus driver after being Route Supervisor. The two women determined to be sure that all of their paperwork was accurate regarding the field trip, including compliance with Mr. Murphy's policy.

    
    

11. While in Orlando, Ms. Hazard, the teacher in charge of the field trip, allowed the bus drivers to lodge in the teachers rooms during the field trip. Ms. Gates stayed with Ms. Hazard and Ms. Finch stayed with Ms. Marks. Ms. Gates attempted to get a receipt from the hotel in order to comply with Mr. Murphy's rule. The hotel changed the name on the room from Ms. Hazard to Ms. Gates. The evidence did not disclose whether Ms. Gates requested the name change or whether the hotel took it upon itself to change the name given Ms. Gates' request for a receipt. Ms. Hazard discovered the name change and had the hotel change the name back. Ms. Hazard informed Ms. Gates of her action. Ms. Gates then told Ms. Hazard about Mr. Murphy's policy and requested that Ms. Hazard obtain a receipt for her. Ms. Hazard asked the hotel desk clerk to prepare a statement showing that Ms. Gates had stayed in the room. The hotel prepared a receipt with Ms. Gates' name on it but with no room charges on it. The second receipt only reflected one nights stay. Although Ms. Hazard had no authority to determine the sufficiency of the second receipt, Ms. Hazard believed this document to be sufficient and delivered it to Ms. Gates.

    
    

12. Ms. Gates believed she needed a document which showed she had stayed in the room for the three nights she was in Orlando and resolved to obtain the type of receipt she believed she needed herself. The same evening, Ms. Gates again approached the hotel's desk clerk and discovered that a receipt for all three nights could not be generated by the hotel until the final bills were posted. She was told she could pick up such a receipt the next morning when all the receipts would be placed on a table for pickup.

    
    

13. At the conclusion of the field trip, Ms. Gates picked up the both her receipt and Ms. Finch's receipt from the table set up by the hotel. They were in envelopes and she did not immediately ascertain the information that was on them. Ms. Gates took Ms. Finch's envelope and delivered it to her at her bus. Ms. Finch never reviewed the receipt for accuracy but accepted it from Ms. Gates believing it was what she needed to comply with Mr. Murphy's policy.

    
    

14. The receipts reflected the Respondents' names, the hotel rooms in which they stayed and the number of nights they had stayed in the hotel rooms. The receipt also reflected the charges for the room in which the Respondents stayed. The evidence was clear that Ms. Finch did not have any input into obtaining the receipts nor into the information that was placed on the receipts. Again the evidence did not disclose whether Ms. Gates told the hotel to prepare room receipts with room charges on them or whether the hotel placed such information on the receipts through its own volition. Without such crucial evidence it is impossible to determine whether Respondents had a fraudulent intent in obtaining these receipts. Certainly, no such intent was demonstrated

    in regards to Ms. Finch since she never attempted to obtain any of these receipts from the hotel but left it up to the more senior Ms. Gates to obtain the proper documentation for her.

    
    

15. Upon their return, the Respondents filled out a reimbursement voucher. Each of them filled out the left side of the form indicating the dates of travel, places of travel and times of travel. They then signed these forms leaving the remainder of the forms blank. Along with these forms both Respondents submitted the receipt for their room along with other miscellaneous receipts. Ms. Bullard decided, without informing the Respondents, that they should be reimbursed under the expenses reimbursement method. She marked out both Respondents requests for reimbursement under the per diem method and substituted her judgment that they be reimbursed under the expenses method. Ms. Bullard took this course of action because she assumed that because Respondents had turned in their hotel receipts, they were requesting reimbursement for the same.

    
    

16. The evidence regarding the precise course of events and the precise conversations held between Ms. Bullard and Respondents is in conflict. This conflict is most likely due to the relative parties point of view and ability to remember portions of these events which were more important to that individual, as well as, that protagonists interpretation of what someone else meant during some conversation. Suffice it to say, that neither version or a combination thereof demonstrates with any probability that Respondents intended to bilk some money out of the School Board. All of the evidence was highly equivocal. Therefore, the Petitioner has failed to demonstrate that Respondents are guilty of any conduct which would subject them to discipline or termination from employment. The Respondents should be reinstated with backpay.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

18. Both Administrative complaints provide that each Respondent "submitted a Reimbursement Voucher for Temporary Duty Expenses which was inaccurate, in that Respondent(s) requested reimbursement of funds which she did not expend." In essence, this is a charge of fraud or theft by Respondents. The School Board has the burden of proving by a preponderance of the evidence that Respondents committed the alleged acts and should be disciplined for those actions. Smith

    v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). The School Board seeks dismissal of both Respondents.

    
    

19. In this case, the School Board has failed to produce sufficient evidence to establish by a preponderance of the evidence that Respondents are guilty of any actions, let alone fraud, that would subject them to disciplinary action. More importantly, the Respondents had requested to be reimbursed on a per diem basis. It was not the Respondents who requested reimbursement for the hotel room. That was the decision of Ms. Bullard based on an incorrect assumption on her part. The Respondents submitted the hotel receipts in order to comply with Mr. Murphy's policy which they believed to still be in effect. Through lack of communication, misinterpretation of statements and outright assumptions on the part of administrative officials the Respondents found themselves accused of very serious offenses and on the edge of termination for something they did not do. The above is particularly true in regards to Ms.

Finch against who no substantial evidence of fraud was adduced at the hearing. Since the Petitioners have failed to prove the allegations of the Administrative Complaints, the Respondents are entitled to be reinstated with back pay.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That the School Board of Bay County enter a Final Order reinstating Respondents with backpay.

DONE and ORDERED this 10th day of May, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

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 10th day of May, 1991.

ENDNOTES

1/ The evidence submitted by the School Board that all drivers are given annual seminars on School Board policies and that all new drivers are counsel led on School Board policies when they are hired is insufficient to demonstrate that these two Respondents had, in fact, attended such seminars or had received such counselling. Additionally, such evidence was insufficient to demonstrate that, if Respondents had received such instruction, that they understood the import of that instruction given the Transportation Department's policy on the completion of its travel forms discussed later in this Recommended Order.

2/ This lack of a requirement does not mean bus drivers do not turn in various receipts for their travel. For instance, as occurred in this case, a bus driver always turns in gas receipts for travel without any fraudulent intent being attached to the submission of those receipts. Administration assumes that the driver does not intend to get reimbursed for the gas simply by turning in these gas receipts. The submittal of those receipts does not affect per diem reimbursement.

3/ Ms. Hazard's entire testimony was colored by her pique at Ms. Gates for causing what she believed to be an error in the Latin Club hotel bill and her jumping to conclusions about Ms. Gates intent when she did not have all the facts before her.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4598

1. The facts contained in paragraphs 1, 2, 4, 10, 15 and 16 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 3, 5, 7, 11, 18, 19, 20,

   21, 22, 23 and 24 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 8, 12, 13, 14, 25, 26 and 27 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in the second and sixth sentences of paragraph 6 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is adopted.

5. The facts contained in the first two sentences of paragraph

   9 of Petitioner's Proposed `findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.

6. The facts contained in paragraph 17 and the second paragraph of finding 18 in Petitioner's Proposed Findings of Fact are immaterial. The remainder of finding 18 is subordinate.

7. The inference from the facts contained in paragraph 28 of Petitioner's Proposed Findings of Fact is rejected.

8. The facts contained in the first two sentences of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.

9. The facts contained in paragraphs 1, 2, 3, 4, 5, 7, 8, 9,

10, 11, 12, 15, 16, 17, 18, 22, 23, 25, 26, 28, 29, 30, 31, 32, 33, 34, and 37

of Respondents' Proposed Findings of Fact are adopted in substance, in so far as material. 10. The facts contained in paragraphs 6, 13, 14, 20, 21, 24, 27, 35 and 36 of Respondents' Proposed Findings of Fact are subordinate.

1. The facts contained in the first two sentences of paragraph 19 of Respondents' Proposed Findings of Fact are adopted. The remainder of the paragraph is subordinate.

2. The facts contained in the first sentence of paragraph 38 of Respondents' Proposed Findings of Fact are adopted. The remainder of the-paragraph is subordinate.

COPIES FURNISHED:

Franklin R. Harrison, Esquire Jack W. Simonson, Superintendent Post Office Drawer 1579 Bay County School Board

Panama City, Florida 32402-1579 P. O. Drawer 820 Panama City, Florida 32402

Thomas W. Brooks, Esquire

2544 Blairstone Pines Drive Honorable Betty Castor Tallahassee, Florida 32302 Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 90-004598

Orders for Case No: 90-004598