vs. ) Case No. 96-4588
SOPHIE A. MULLINS, )
Respondent. )
This cause came on for formal hearing on March 19-21, 1997, in Melbourne, Florida, before Daniel M. Kilbride, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner Benjamin B. Garagozlo, Esquire Brevard County 33 Parkhill Drive
For Respondent Nina Ashenafi, Esquire Sophie A. Mullins: FEA/United
Whether Respondent is guilty of misconduct in office, immorality or committing a crime of moral turpitude.
Whether just cause exists to dismiss Respondent from her employment as a member of the instructional staff of the Brevard County School District.
By letter dated August 26, 1996, and hand-delivered on August 27, 1996, Dr. David E. Sawyer, Superintendent of the Brevard County Schools, advised Respondent, Sophie A. Mullins, that she was suspended without pay pending School Board action on his recommendation to terminate her employment as a Professional Services Contract teacher with the School Board of Brevard County.
By letter dated August 29, 1996, Respondent requested a formal hearing to contest the charges. The matter was referred to the Division of Administrative Hearings and was scheduled for hearing and discovery ensued. The hearing was continued for good cause at the request of the Respondent. Prehearing motions were ruled upon, and the parties filed a Prehearing Stipulation.
At the formal hearing, Petitioner presented the testimony of eighteen witnesses: Sophie A. Mullins, Aquanda Jordan, Diane Forsyth, Ronald G. Thixton, Jean Holmes, Amy L. Galaser, Officer Robert Hill, Claire Gamboa, Mary Ann Page, Janet Wagner, William
B. Carey, Ivan Martinez, Leslie Redrup, Gregory J. Skufca, Rebecca Van Horn, Deserea N. Clayton, Donald Leroy Beggs, and David E. Sawyer. Petitioner also introduced twenty-eight exhibits, which were received into evidence.
Respondent testified on her own behalf and presented the testimony of twenty-four witnesses: Betsy Michelle Blades, Donald
L. Beggs, Donna Davis Brennan, Virginia A. Whitman, Ellen Marie
Devoe, Dorothy Lube, James P. Christo, Tara S. Hurren, Arnold Perkins, Anita M. Perkins, Joel Soto, Suheil Gonzalez, Nadia Velez, Nivea Carballo, Odalis Bravos, William W. Lawton, William
J. Sidoran, Brenda G. Rotgers, James D. Lewis, Sophie A. Mullins, Benjamin Saxton, Frederick L. Clark, June Harlow, Aaron Guilford, and the deposition testimony of Susan Files and Laura Perkins. Respondent offered twenty-three exhibits which were received into evidence.
A transcript of the proceedings was furnished on April 17, 1997. Subsequent to the receipt of the transcript, both counsel submitted Proposed Recommended Orders on May 2 and 6, respectively. They have been given careful consideration in the preparation of this Recommended Order.
Respondent, Sophie A. Mullins, is a teacher certified by the State of Florida, holding a Professional Services Contract with the Brevard County School Board (Petitioner).
Respondent has been employed as a teacher by the Brevard County School Board for twelve (12) years.
In the 1994-1995 school year, Respondent taught remedial math and English to 10th, 11th, and 12th graders.
In the 1995-1996 school year, Respondent was assigned to teach in-school suspension in addition to the remedial math and English course.
The events giving rise to the allegations in this case
occurred on off-duty time, during summer recess, and did not involve any student or employee of the Brevard County School system. The last day of classes at Melbourne High in the 1994- 1995 school year was the first week of June, or June 8, 1995.
Between December 1992 through the summer of 1995, Respondent’s husband purchased and ran a lawn care business and Respondent assisted by maintaining the business records.
In December of 1994, Respondent had established a business relationship with National Check Cashing. The Respondent wrote a check for $3,900.00 drawn on Riverside National Bank of Fort Pierce, and she cashed the check at National Check Cashing. The check was not honored by Riverside National Bank. In response to the State Attorney’s inquiry, the Respondent wrote a letter explaining that her then tenants had given her a worthless check that had disrupted her checking account. She further stated that she had attempted to pursue said individuals to make good on this check, and as proof had provided a copy of said checks from the tenants to the Office of the State Attorney. In her letter, the Respondent also expressed that she was a school teacher and that she would never intend to defraud anyone. The tenant in question was the Respondent’s son- in-law, Mr. Kirk Opicka, who lived on her property at 61 Fowler Avenue, Lynbrook, New York. Criminal charges were not filed.
In early February, 1995, Respondent opened business and personal checking accounts with First Federal of Osceola Bank.
Respondent was on a cash only basis from February to March due to First Federal of Osceola’s new account policy that provides for a 30-day hold period in the beginning of a new account where customers can only deposit cash or cash-like items.
On or about April 24th or 25th, 1995, First Federal of Osceola put a “lock out designation” on both Respondent’s personal and business records due to excessive activity. The lock-out placed on Respondent’s accounts were “fund source zero” or “one.” This meant Respondent could only transact cash or Cashier’s checks. Petitioner chose not to close her accounts due to said restrictions, but continued to use the bank’s services.
The lawn care business received payments from customers and conducted business transactions, such as the buying and selling of equipment and materials, on a regular basis.
First Federal of Osceola did not incur any financial loss or harm as a result of Respondent’s banking at that institution.
As a result of the First Federal of Osceola’s new account policy and subsequent “lock-out” on her accounts requiring cash-only transactions, Respondent decided to cash business and personal checks at Little Tiger Check Cashing (Little Tiger).
Little Tiger is not a bank where deposit and checking accounts are provided. Rather, Little Tiger provides a check cashing service for a fee. A seven day hold service is also
provided, for a charge of 10% of the amount of the check, where checks can be cashed but not deposited for a week.
Little Tiger heavily promoted the seven-day check hold service through daily newspaper advertising.
Up to the incidents at issue, Respondent had a good payment history with Little Tiger without a check ever being returned for insufficient funds.
In the month of May of 1995, the Respondent cashed checks at Little Tiger drawn against her business account totaling $20,425.00 and against her personal account totaling
$16,298.33.
In the month of May 1995, the Respondent deposited
$29,400.00 in the business account and $23,643.57 into the personal account (said sums deposited in the personal account do not take into account the Respondent’s salary or her husband’s retirement pay).
From June 1, 1995 to June 22, 1995, the Respondent cashed the sum of $78,790.00 at Little Tiger against the business account and the sum of $37,315.00 against her personal account.
From June 1, 1995 to June 22, 1995, the Respondent deposited the sum of $35,003.12 into her personal account with First Federal of Osceola and deposited the sum of $78,405.00 into the business account with the said bank.
The First Class Lawn Service’s gross income in the year 1995 was approximately $30,000.00, as reflected on the Schedule C
that was filed as part of the Respondent’s income tax return for said year.
Between June 1, 1995 and June 22, 1995, the Respondent went to Little Tiger and cashed checks at Little Tiger on June 1st, 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 12th, 13th, 14th, 15th, 16th, 19th, 20th, 21st, and 22nd. With the exception of June 3, 1995, the Respondent also made deposits at First Federal of Osceola by way of cash or a cashier’s check.
Respondent was aware that it would take two business days for a check to clear her bank.
On or about June 8, 1995, First Federal of Osceola gave the Respondent a ten-day written notice that it would close the Respondent’s accounts with said bank. Further, on June 21, 1995, Ms. Holmes had made phone contact with the Respondent confirming the June 22, 1995 date for closing of the checking accounts.
The Respondent, within the ten-day period prior to the closing date of June 22, 1995, continued to cash checks at Little Tiger. On June 22, 1995, the Respondent had requested the use of a seven-day hold policy whereby enabling her to get the cash on June 22, 1995, and having said check deposited by Little Tiger after seven-days. Adding the two additional business days that would have been needed to clear said check to the seven-day hold period, would have placed the clearing time for the check cashed on June 22, 1995, at some point after June 30, 1995.
Prior to each cash deposit at the bank on each given
day in June of 1995, the Respondent did not have sufficient funds in the account at the time she drafted a check to Little Tiger for cash.
On June 20th, 21st, and 22nd of 1995, the Respondent wrote three checks against the business account, payable to Little Tiger. Said checks were in the amount of $5,200.00;
$3,200.00; and $5,500.00, for a total of $13,900.00
The Respondent on June 20th and 21st of 1995 also wrote three checks against her personal account, payable to Little Tiger in the amounts of $2,600.00, $1,670.00, and $2,660.00, for a total of $6,800.00.
The combined amounts for the checks written against the personal account and the business account payable to Little Tiger for these three days totaled $20,700.00.
The records from the Respondent’s accounts with Nations Bank that were opened in July of 1995, after the Little Tiger transactions, do not show this type of deposit activity.
On June 22, 1995, the Respondent never advised Little Tiger that the accounts were going to be closed. Instead, the Respondent obtained from Little Tiger the monies for cashing a business check in the amount of $5,500.00.
On June 22, 1995, the Respondent withdrew the remaining balance in her business account and personal account. The personal account, as a courtesy to the Respondent, was left open
by the bank reflecting a balance of three (3) cents. Said account was left open until July 3, 1995 in order to allow the direct deposit check for the Respondent’s husband to clear.
Subsequent to June 22, 1995, the Respondent made no voluntary attempts to return any portion of the monies received from Little Tiger for June 22, 1995 transaction or for the other outstanding checks.
Only after being confronted by the owner of Little Tiger, did the Respondent return approximately $2,300.00.
On July 1, 1995, the Respondent delivered to Little Tiger an altered copy of a cashier’s check drawn on NCNB Bank, with a note on the bottom in the Respondent’s handwriting which stated the following: “Here is a copy of partial payment for sale of property. My husband received it and has not deposited - was waiting for me to return. See you Monday to resolve this.”
The copy of the NCNB check had been altered. This banking institution had not been existence since 1992.
The Notice for Return of checks #591, #592, and #593 for the business account were also altered.
The Respondent in this hearing claims that the reason for the checks not being honored are the result of two factors: her new tenants, Mr. And Mrs. Natale, and the bank.
Respondent claims that the tenant, Natale, gave her two bad checks as rental payments. However, although these checks were returned to Little Tiger for insufficient funds, the two
checks from Mr. Natale in the amount of $2,400 and $2,500, had been cashed at Little Tiger on May 15, 1995. The sum of
$4,900.00 which reflected the amount on the two outstanding checks had been wired and said monies had been deposited into the Respondent’s personal account on May 18, 1995.
Upon request, Little Tiger sent Mr. Natale’s checks through for a second time, and they were again returned insufficient ten (10) days later.
Respondent was contacted to compensate Little Tiger for Eugene Natales checks. On June 12, 1995, Respondent paid Little Tiger for returned checks the sum of $5,390.00, which included a return fee.
Respondent claims in her defense that she was expecting income to come in the month of June. Respondent was anticipating business checks to come in, her husband’s Air Force retirement payments to come in, her school district income, repayment on loans from her son and daughter, and deposit and rent on her rental property in Florida.
Respondent also claims that her problems with Natale did not end with the returned checks. Respondent claims that Natale failed to pay Respondent a $5,000.00 deposit on the lease/purchase of her home on June 1, 1995, as required by the lease. Further, Natale continued to write numerous checks to
Respondent for the mortgage, which checks were returned as insufficient and were later not reimbursed to Respondent.
However, eviction proceedings were not commenced by Respondent until June 21, 1996, and a Stipulation Agreement was reached with Natale in August, 1996.
The evidence in this cause clearly demonstrates that the Respondent committed the offense of grand theft by endeavoring or obtaining monies belonging to Little Tiger with the intent to deprive Little Tiger of the right to said property.
On July 3, 1995, Respondent was arrested by the West Melbourne Police Department.
The Respondent’s arrest generated publicity by way of two newspaper articles and a television news story in July of 1995.
On March 12, 1996, Respondent entered a plea of Nolo Contendere to the crime of grand theft, a second degree felony. The court ordered that adjudication be withheld, that Respondent be placed on probation for a period of five years, and, among other requirements, that she pay restitution to the victim, Little Tiger, in the total sum of $42,133.00.
Respondent has made restitution payments in the amount of $800.00/month to Little Tiger Check Cashing. Although Respondent is on suspension without pay, all restitution payments are current.
Respondent continued to be employed by the Brevard County School Board in the 1995-1996 school year.
During the 1995-1996 academic year, formal observations and evaluation of Respondent’s teaching performance in the in- school suspension and remedial math and English classes were conducted. Respondent received the highest rating possible, “Effective,” on the 1995-1996 Brevard County Teacher Evaluation Form.
Respondent was rated “Exemplary” in three of ten categories on the 1995-1996 Evaluation. The evaluation was approved by the Principal.
Between 1994-1996, the success of the remedial program at Melbourne High School was attributable in part to Respondent.
Respondent received the highest rating, “Effective,” on the 1993-1994 Brevard County Teacher Evaluation Summary form. Respondent was rated “Exemplary” in planning, organization and development, and responsibility.
Respondent’s twelve year teaching career prior to 1994- 1995 has been above standard. All of her performance evaluations have been positive.
Respondent was very careful to maintain her professional demeanor and keep her financial and personal problems away from Melbourne High and away from her students and colleagues.
Twenty-three (23) witnesses testified regarding Respondent’s abilities and effectiveness. All of these individuals know Respondent either as a coworker, teacher, or parent. All believe that Respondent can continue as an effective teacher in the Brevard County School System.
Damage to the Respondent’s effectiveness as a teacher as a result of the publicity was demonstrated by the evidence produced by the Petitioner.
As Dr. David E. Sawyer, the superintendent of the Brevard County School Board, commented on the issue of effectiveness, a teacher who commits a crime of moral turpitude creates an environment where in the eyes of said teacher's students, the educator's character is diminished, a trait
. . . which is part of the responsibility that a teacher brings to his or her classroom. It also tends to diminish the adult perspective of that classroom, that school, and that school district, and even . . . the profession of teaching when adults become aware of the fact that a person who is engaged in criminal activity and is being placed in a position of authority and responsibility with the youngest of our citizens.
The Respondent’s defense of lack of intent is not credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner seeks to dismiss the Respondent from employment as a teacher on the basis of immorality, misconduct in office, and commission of a crime of moral turpitude.
In cases involving the proposed termination of a teacher’s employment, the Florida courts have held that the Petitioner has the burden of proving its allegations by preponderance of the evidence. See Dileo vs. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990); Ferris vs. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986).
Section 231.36(1)(a), Florida Statutes, provides that the Board can discharge a teacher on a Professional Services Contract only for just cause. 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.
Chapter 231, Florida Statutes does not define the terms “gross immorality” or “moral turpitude.” See, Sherburne vs. School Board of Suwannee County, 455 So. 2d 1057, 1061 (Fla. 1st DCA 1984).
The term “moral turpitude” has been defined in Rule 6B-4.09(6), Florida Administrative Code, as follows:
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellowman or society in general, and the doing of the act itself and not its prohibition by statutes fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida, as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel Tullidge vs. Hollingworth, 108 Fla. 607, 146 So. 2d 660, 661 (1933).
“Immorality” is defined by Rule 6B-4.009(2), Florida Administrative Code, 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 in public disgrace or disrespect and impair the individual’s service in the community.
Thus, in order to dismiss a teacher for immoral conduct the fact finder must conclude: (a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and (b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher’s service in the community. See McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 2nd DCA 1996) (hearing officer found that the evidence was insufficient to prove an essential element of the offense, that is, that McNeill’s conduct impaired his effectiveness within the community). See Also McKinney vs. Castor, 667 So. 2d 387 (Fla.
1st DCA 1995) (hearing officer found that the principal’s acts of soliciting prescription drugs from employees on two separate occasions constituted gross immoral conduct warranting dismissal. District Court reversed, finding proof of impaired effectiveness insufficient); and Sherburn vs. School Board of Suwannee County,
455 So. 2d 1057 (Fla. 1st DCA 1984) (Petitioner failed to meet its burden of proof with respect to impaired effectiveness, the second element of the offense). But see, Summers vs. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995).
The Second District Court of Appeal, in McNeill vs. Pinellas County School Board, supra, has adopted the two-part analysis set forth above. The court states:
The Administrative Code’s definition of immorality calls for this approach and we believe it will give full effect to the intent and purpose of 6B-4.009(2), to protect the educational interests of students, parents and the public while promoting high moral standards among education professionals and assuring professional accountability. See Florida Administrative Code R. 6B-1.001 and 6B-1.006 (1995).
The legal standard for establishing impaired effectiveness was set forth in MacMillan vs. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993), wherein the Court stated:
We reiterate that Rule 6B-4.009(3) defines misconduct in office as a violation of the code of Ethics and the Principles of Professional Conduct “which is so serious as to impair the individual’s effectiveness in the school system.” School Superintendent March opined that MacMillan’s effectiveness as a teacher had been seriously impaired due to the charged behavior, and that termination was the only appropriate penalty for MacMillan’s acts.
Considering the severity of the charges and the number of students who gave live testimony, we find it striking that the students consistently stated that MacMillan was “generally well-regarded” and was “everyone’s favorite teacher”. The record supports the hearing officer’s conclusion as to the issue of effectiveness:
The testimony that Respondent’s actions establish a pattern of serious misconduct is not borne out by the record evidence, nor has it been established that Respondent’s actions have rendered him so ineffective as a teacher that he should be dismissed in the fact of affirmative evidence of good teaching skills. It also has not been established how Respondent’s proven conduct, when separated from the allegations not proven, affected Respondent’s employment or effectiveness in the community apart from the notoriety resulting from Petitioner’s own investigation.
The evidence is sufficient to establish that Respondent committed the acts alleged by Petitioner, that is, grand theft, a crime of moral turpitude. Respondent’s defense that her conduct was the result of “inadvertant issuance of insufficient fund checks” is not credible. However, the analysis does not stop there. In this case, there is sufficient evidence to support the allegation of impaired effectiveness. The crime itself and the attendant publicity is sufficient to demonstrate that her conduct was sufficiently notorious to bring her and the education profession into public disgrace or disrespect and impair her service in the community. Rule 6B-4.009(2), Florida Administrative Code. Although the testimony offered by Petitioner from students, parents, coworkers and the Superintendent were not specific as to Respondent’s
ineffectiveness, the testimony was persuasive to show public disgrace toward Respondent and her profession.
Respondent did produce an outpouring of affection and support from past and present students, their parents, coworkers, friends and associates who lauded her performance as a teacher. Twenty-three students, parents, friends, coworkers, and supervisors testified in her support. Respondent’s personnel record and evaluations support a finding that her teaching skills was not impaired or reduced as a result of the allegations given rise to this case. As the record shows, Respondent resumed her teaching position a month after her arrest and subsequent publication of newspaper articles. During that year, 1995-1996, Respondent continued to receive excellent teaching evaluations from administrators who were fully aware of the arrest and subsequent publicity.
Petitioner’s own district administrators, Donald Begs, Principal of Melbourne High School; Betsy Blades, Assistant Principal; and Donna Brennan, Assistant Principal, all provide testimony that Respondent’s performance in the 1995-1996 had not diminished. None of the testimony offered by Petitioner contradicts the fact that the Respondent was an effective teacher and continued to be an effective teacher even after the allegations giving rise to this case.
“Misconduct in office” is defined by Rule 6B-4.009(3), Florida Administrative Code, as a violation of the code of ethics
of the education profession as adopted in the Rule 6B-1.001, Florida Administrative Code, and the principals of professional conduct for the education professional in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual’s effectiveness in the school system.
The Respondent’s off-duty conduct during summer recess does not constitute misconduct in office, as those words are used in their normal meaning. Smith vs. School Board of Leon County,
405 So. 2d 183 (Fla. 1st DCA 1981) (occurrence after hours, which had no bearing on teacher’s exercise of her duties, did not constitute “misconduct in office” within meaning of Section 231.36(4)(c), Florida Statutes); Braddock vs. School Board of Nassau County, 455 So. 2d 394, (Fla. 1st DCA 1984).
Further, recommended that, in view of the outpouring of support, effective teaching skills, long-term service and good behavior while on probation, that Respondent be offered an annual
teaching contract for the 1997-1998 school year, and thereafter, if warranted.
RECOMMENDED this 27th day of June, 1997, at Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.
Dr. David Sawyer, Superintendent Brevard County School Board
Frank T. Brogan, Commissioner Department of Education
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
