STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF MIAMI-DADE ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 99-4943

)

ROSA O. DARLING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on March 24, 2000, March 29, 2000, and April 12, 2000, by video

teleconference at sites in Miami and Tallahassee, Florida, and on June 21, 2000, by telephone conference call, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Philip Michael Cullen, III, Esquire

621 South Federal Highway, Suite 4 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

1. Whether Respondent engaged in the conduct alleged in the Amended Notice of Specific Charges.

2. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate her employment.

   PRELIMINARY STATEMENT

   
   

   On November 17, 1999, the School Board of Miami-Dade County (School Board) suspended Respondent from her position as a secretary-treasurer at Booker T. Washington Middle School and initiated a dismissal proceeding against her. By memorandum dated November 19, 1999, Respondent requested a hearing on the matter. In her memorandum, Respondent denied the accusation made against her that she had been "purchasing [items] without authorization" and asserted that she had been "just following orders." On or about November 29, 1999, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

   On or about December 21, 1999, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges. On January 25, 2000, the School Board filed a Motion to Amend the Notice of Specific Charges it had previously served on Respondent. The motion was accompanied by an Amended Notice of Specific Charges that the School Board had served on Respondent (again by United States Mail). On February 10, 2000, the undersigned issued an Order granting the motion (which was unopposed). In its Amended Notice of Specific Charges, the

   School Board alleged that Respondent had engaged in the following conduct, which warranted her dismissal on the grounds of "neglect of duty" (Count I), "misconduct in office" (Count II), "immorality" (Count III), "conduct unbecoming a School Board employee" (Count IV), "theft" (Count V), and "incompetency" (Count VI):

   1. From on or about April, 1998, through on or about April, 1999, Respondent made unauthorized purchases using school funds in the amount of approximately $5,800. These purchases included approximately $3,905.45 to Famous Garments for women's clothing, approximately $1,327.73 to Micro Warehouse for a computer, and approximately $568.93 to Eastbay, Inc. for athletic shoes, all of which were invoiced to BTW [Booker T. Washington Middle School].

      
      

   2. The above-referenced unauthorized purchases were made with approximately twenty

      (20) BTW checks and/or electronic transfers, which were all signed by Respondent.

      
      

   3. Respondent had control, access, and responsibility to account for BTW financial records. Respondent disguised her personal purchases by entering incorrect information into school records.

      
      

   4. On or about March 25-26, 1999, Respondent made unauthorized purchases of personal items, including but not limited to bath soaps, detergent and bleach from Publix, using BTW funds.

The seventh and final count of the Amended Notice of Specific Charges read as follows:

CONVICTION OF A CRIME INVOLVING MORAL TURPITUDE

1. Petitioner repeats each and every allegation contained in paragraphs 1 through

   9 above, with the same force and effect as if fully set forth herein.

   
   

2. Upon information and belief, a criminal investigation, stemming from the above- referenced allegations, is pending. These allegations, if proven, are acts evidenced by baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of time Respondent owes to her fellow man or to society in general, and the doing of the act(s) itself and not its prohibition by statute fixes the moral turpitude.

   
   

3. If convicted, such act(s) constitute(s) crime(s) involving moral turpitude, as defined by Rule 6B-4.009(6), F.A.C., a ground warranting dismissal under 231.36(1)(a) and (6)(a), Fla. Stat. Petitioner reserves the right to prove this charge.

At the final hearing held in this case on March 24, 2000, March 29, 2000, April 12, 2000, and June 21, 2000, the following witnesses testified on behalf of the School Board: Alex Rozenfeld, Jonna Orage, Brian Criste, Eileen Oats, Albert Payne, Gloria Evans, Irvin Grice, Sergeant Oren Paisant, Claude Remy, Julio Miranda, Marla Berenson, and Norman Lindeblad. In addition to the testimony of these twelve witnesses, the School Board offered Petitioner's Exhibits 1 through 15 and 17, all of which were received into evidence, except for Petitioner's Exhibit 6, a report by Brian Criste, a computer evidence recovery analyst, describing the results of his efforts to recover data (using forensic software sold under the brand name "Encase") from the hard drive of the computer referenced in paragraph 5 of the Amended Notice of Specific Charges. The undersigned deferred

ruling on the admissibility of this exhibit (and related testimony by Mr. Criste) to give the parties the opportunity to brief the issue in their post-hearing submittals. Having carefully considered the arguments advanced by the parties and determined (in the absence of any evidence presented by Respondent to the contrary) that the forensic software employed by Mr. Criste is in fact reliable and is generally accepted as such by those in his field, the undersigned hereby receives Petitioner's Exhibit 6 (and Mr. Criste's related testimony) into evidence. See State of Washington v. Hayden, 950 P.2d 1024 (Wash. App. 1998).

The only evidence Respondent offered at the final hearing was a copy of a photograph of Respondent with Ms. Oats. This exhibit (Respondent's Exhibit 16) was received into evidence over objection.

At the close of the hearing on June 21, 2000, the undersigned announced on the record that post-hearing submittals had to be filed no later than August 9, 2000. The School Board and Respondent both timely filed their post-hearing submittals on August 9, 2000. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The School Board is responsible for the operation, control, and supervision of all public schools (grades K through

   12) in Miami-Dade County, Florida.

   
   

2. At all times material to the instant case, personnel at all public secondary schools in Miami-Dade County involved in the expenditure of School Board funds were required to discharge their duties in accordance with the Manual of Internal Accounting for Secondary Schools (Accounting Manual). Among the Accounting Manual's provisions were the following:

EXPENDITURE PROCEDURES

1. PURCHASING AND RECEIVING

   
   

   1. AUTHORIZATION

      
      

      1. Authorized purchases shall be made in compliance with Florida Statutes, State Board of Education Rules, Board Rules, and administrative directives and manuals. Principal has responsibility for authorizing all internal fund purchases

         
         

         1. Principal may delegate this authority to another administrator

            
            

         2. Delegate assignment must be in writing and memorandum retained for audit

            
            

      2. Principal and his/her delegate will make the following determination before authorizing internal fund purchase

      
      

      1. Uncommitted funds are available

         
         

      2. Items to be purchased meet legal requirements governing school purchasing activities

         
         

      3. Bid requirements have been met

         
         

      4. Items to be purchased are appropriate for sponsoring account

   2. RESTRICTIONS

      
      

      1. Payment for unauthorized purchase shall be sole responsibility of person placing order

         
         

      2. School Board employees are prohibited from soliciting personal discounts on merchandise or services from School Board vendors, potential vendors and

      patrons . . . .

      
      

   3. FLORIDA SALES TAX RESTRICTION

   
   

   A. Items purchased for which school will claim ownership are exempt from sales tax. . . .

   
   

   1. BID REQUIREMENTS

      
      

      1. Lowest bid meeting all specifications must be accepted

         
         

      2. Competitive quotations may be requested but not required

         
         

         2. Use of split bids to keep purchases under

         $1,000 is specifically forbidden

         
         

      3. Purchases of $1,000 through $6,000

      
      

      1. Request at least three quotations which may be obtained in writing or by telephone. Use of split bids to circumvent this regulation is specifically forbidden

         
         

      2. All quotations must be recorded and filed with documentation for disbursement transaction . . . .

   2. CERTIFICATION OF RECEIPT Certification of receipt must be made by

   person who can certify that merchandise, as specified, has been received or service rendered and that payment is in order

   1. A school custodian or office clerk will usually sign delivery ticket for shipping representative

      
      

      1. Delivery ticket documents delivery only

         
         

      2. Delivery ticket does not certify "as specified" receipt

      
      

   2. Employee retaining custody of materials purchased will usually certify receipt "as specified" on vendor invoice

      
      

   3. Certification of receipt of goods must be forwarded to secretary/treasurer promptly to facilitate timely payment

   
   

2. CASH DISBURSEMENTS

1. APPROVAL

   
   

   Approving signature of principal or his/her designee must appear on each of the following documents

   
   

   1. Purchase order (when appropriate)

      
      

   2. Check requisition

      
      

   3. Check

   
   

2. Documentation

   
   

   1. Invoice

      
      

      1. Vendor's name and address

         
         

      2. Date of purchase

         
         

      3. Detail of what was purchased

         
         

      4. Total obligation

   
   

   1. Extensions and additions must be checked before payment

      
      

   2. Invoice must contain signature of employee certifying receipt of goods "as specified" . . . .

   1. Order Form

      
      

      1. Advance payments to commercial vendors usually not permitted. . . .

      
      

   2. Check Requisition

      
      

      When there is no existing documentation check requisition will include documenting explanation . . .

      
      

   3. Prohibited (will not be accepted as documentation)

   
   

   1. Monthly statements

      
      

   2. Packaging slips

   
   

3. TIMELY PAYMENTS

   
   

   Payment must be made within thirty (30) days of receipt of goods unless special arrangements are made with the vendor.

   Deferred payment agreement must be in writing and retained for audit

   
   

4. CHECK REQUISITION

   
   

   1. Check requisition form must be used to initiate every expenditure from internal funds

      
      

   2. Check requisition will contain following information

   
   

   1. Requisition number (check number)

      
      

   2. Name of school

      
      

   3. Date

      
      

   4. Fund to be charged

      
      

   5. Name of payee

      
      

   6. Amount

      
      

   7. Identification of transaction

      
      

   8. Necessary signatures

5. WRITING OF CHECK (See Section 5-1.2, Recording to Journal and Ledger, for pegboard procedures)

1. Payments must be made to specific person, company, or organization

   
   

   1. Do not make checks payable to "cash"

      
      

   2. Do not make checks payable to paying school

      
      

2. Do not write check unless all supporting documents and complete information submitted

   
   

   1. It is the responsibility of secretary/treasurer to attach all pertinent documentation to check requisition prior to submitting check for administrative signature

      
      

   2. Documentation must include certification of receipt "as specified" or certification of advance payment requirement for government agencies or public institutions

      
      

3. Each check issued must be signed by principal or his/her designee and one clerical co-signer

   
   

4. After the check is signed by the principal, the invoice will be stamped "paid," and the check number and date indicated . . . .

1. Among the public secondary schools that the School Board operates, controls, and supervises is Booker T. Washington Senior High School.

2. Booker T. Washington Senior High School opened on August 30, 1999.

3. Gloria Evans has been the principal of Booker T. Washington Senior High School since its inception.

4. The site that houses Booker T. Washington Senior High School was, prior to August 30, 1999, occupied by a School Board- operated middle school, Booker T. Washington Middle School. (BTW).

5. Irving Grice served as the principal of BTW from January of 1994 to June of 1998.

6. He was succeeded by Ms. Evans, who was principal of the middle school from July of 1998 to September of 1998.

7. Albert Payne replaced Ms. Evans as principal of BTW in the latter part of September of 1998. Mr. Payne remained the principal of the school until it closed at the end of the 1998-99 school year.

8. At all times material to the instant case, Respondent was employed by the School Board as a secretary/treasurer and assigned to BTW.

9. Respondent is still employed by the School Board as a secretary/treasurer, although she is no longer assigned to BTW. She has been suspended pending the outcome of the instant dismissal proceeding.

10. As a noninstructional employee of the School Board occupying a secretary/treasurer position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract).

11. Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." At all times material to the instant case, it has provided, in pertinent part, as follows:

    1. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.

       
       

    2. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s).

       
       

    3. Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay.

    
    

    The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice.

    
    

    Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal.

    
    

    Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges.

    The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented.

    
    

    The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals.

    
    

    The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal.

    
    

    Dismissals are not subject to the grievance/arbitration procedures.

    
    

12. Respondent was hired to work at BTW by Mr. Grice. She began working at the school in September of 1997.

13. During the time that she was assigned to BTW, Respondent functioned as BTW's treasurer. (Another employee at the school acted as the school secretary).

14. As BTW's treasurer, Respondent was responsible for processing invoices received from vendors doing business with the school.

15. In those cases in which she determined that payment was warranted, she was required to provide the principal, or the principal's designee, with a completed check requisition form, accompanied by all pertinent supporting documentation, as well as a filled-out check for the principal's, or the principal's designee's, signature. On the check requisition form, the following information had to be furnished: the commodities or

    services being purchased, the name of the vendor/payee, the dollar amount of the check, the check number, and the internal school fund or account to be charged.

16. After payment was made to the vendor, it was Respondent's responsibility to enter the information concerning the transaction, including the name of the vendor/payee, on a transaction register.

17. Respondent was also responsible for maintaining the paperwork relating to each transaction. She was supposed to keep these documents in a locked file cabinet in her office.

18. Only Respondent, the principal, and an assistant principal had keys to Respondent's office.

19. Only Respondent and the principal had keys to the file cabinet in Respondent's office.

20. BTW maintained a checking account at SunTrust Bank in Miami, Florida (SunTrust).

21. It was from this SunTrust checking account that monies were taken to pay vendors doing business with BTW.

22. Checks written on this account would be honored and cashed by SunTrust only if signed by a school administrator (the principal or the principal's designee) and by a clerical employee at the school (Respondent or the principal's secretary).

23. At all times material to the instant case, the school administrator designated to co-sign BTW checks in lieu of the principal was Eileen Oats, an assistant principal at the school.1

24. Ms. Oats and Ms. Darling have known each other since the early to mid-1990's when they both worked at Miami Jackson Senior High School (Ms. Oats as a teacher and Respondent in a clerical position).

25. After meeting at Miami Jackson Senior High School (Jackson), the two became friendly; however, when Ms. Oats left Jackson to become an assistant principal at BTW, they lost contact with each other.

26. Their friendship was renewed when Respondent was hired to work at BTW.

27. Respondent and Ms. Oats socialized outside of school during non-work hours.

28. Among other things, they went shopping together at the Famous Garment Corporation's clothing store located at 2220 East 11th Avenue in Hialeah, Florida (Famous Garments).

29. Famous Garments specializes in women's clothing. It sells only women's suits, jackets, and skirts. It does not sell, nor has it sold at any time material to the instant case, office or school supplies.

30. Respondent was a regular customer at Famous Garments during the time that she worked at BTW.

31. She used a lay-away account established in the name of BTW to make personal purchases at Famous Garments (on which she paid no sales tax).

32. The clothing she purchased was paid for, in part, by monies in BTW's SunTrust checking account.

33. Of the total cost of the items she purchased (47 women's suits), $3,905.45 was paid for with BTW funds (from BTW's SunTrust checking account).

34. Respondent was able to misappropriate these funds for her personal use by deceiving the administrators who co-signed the BTW checks in question concerning the nature of the items being paid for. Neither the checks themselves, which Respondent wrote, nor the supporting documentation she presented to the administrators, suggested that it was women's clothing that was being purchased.

35. The following were the BTW checks that Respondent gave to Famous Garment Corporation to pay for the suits she purchased (Famous Garments checks): check number 1421, in the amount of

    $295.00,	dated	June 5, 1998; check number 1456, in the amount of
    $239.00,	dated	May 26, 1998; check number 1552, in the amount of
    $429.00,	dated	August 3, 1998; check number 1570, in the amount

    
    

    of $250.00, dated September 1, 1998; check number 1597, in the amount of $250.00, dated October 2, 1998; check number 1668, in the amount of $250.00, dated November 6, 1998; check number 1723, in the amount of $276.00, dated December 14, 1998; check number 1746, in the amount of $248.00, dated January 7, 1999; check number 1773, in the amount of $250.00, dated January 26, 1999; check number 1811, in the amount of $310.00, dated February 12,

    1999; check number 1816, in the amount of $327.00, dated February 19, 1999; check number 1890, in the amount of $291.45, dated March 25, 1999; check number 1895, in the amount $211.00, dated March 26, 1999; and check number 1903, in the amount of

    $279.00, dated March 30, 1999.

    
    

36. Respondent's signature appears on the first signature line on each of these checks.

37. Ms. Oats co-signed check numbers 1421, 1552, 1597, 1773, 1811, 1816, 1890, 1895, and 1903.

38. Mr. Grice co-signed check number 1456.

    
    

39. Ms. Evans co-signed check number 1570.

    
    

40. Mr. Payne co-signed check numbers 1668, 1723, and 1746.

    
    

41. Although Respondent presented the Famous Garments checks to Famous Garment Corporation after the checks were co- signed by the principal or the principal's designee, the name "Famous Garment Corporation" does not appear on the "pay to the order of" line on any of the checks. Instead, there are the following names (which were placed there by Respondent): "Famous Corp. Store" (check number 1421); "Famous Inc." (check number 1456); "Famous Corp." (check number 1552); "Famous Corp. Inc." (check number 1570); "Famous Corporation Office" (check number 1597); "Famous Corporation" (check numbers 1668, 1723, and 1890); "Corporation Inc." (check number 1746); "Office Corporation" (check number 1773); "Famous Office Corporation" (check numbers

    1811 and 1816); "Famous Office Supplies" (check number 1895); and "Corporation" (check number 1903).

42. Respondent did not indicate on any of the Famous Garments checks, on the space provided for noting the purpose of the payment (the "for" line), that it was "for" women's clothing.

43. Respondent left blank the "for" line on check numbers 1597, 1811, and 1890.

44. On the "for" line on check numbers 1421, 1456, 1552, and 1903, Respondent wrote "office supplies."

45. On the "for" line on check number 1421, she also wrote, in addition to "office supplies," "# 46539," which is the number of the $295.00 invoice 2/ that Famous Garments issued when Respondent used BTW's lay-away account to purchase six women's suits on April 30, 1998.

46. On the "for" line on check numbers 1746 and 1816, Respondent wrote "# 27102" and "# 5462," respectively. (The significance, if any, of these two numbers is unclear.)

47. On the "for" line on the remaining checks, Respondent wrote either "lead teacher" or "lead teachers." During the 1998-

    99 school year, classroom teachers employed by the School Board could each purchase, with School Board funds, up to $250.00 worth of supplies for their classrooms under the lead teacher program.

48. To conceal what the Famous Garments checks had actually been used for, Respondent, in making transaction register entries concerning these checks, entered the following fabricated

    vendor/payee names (none of which, unlike the name of the real recipient of the checks, contained the word "garment"): "Famous Office Corp." (check number 1421), "Famous Office Supplies" (check number 1456), "Famous Corporation" (check numbers 1552 and 1723), "Famous Corp." (check number 1570), "Corporation Office" (check number 1597), "Famous Office" (check number 1668), "Corporation Inc." (check number 1746), "Office Connection Supplies" (check number 1773), "Office Connection" (check numbers 1811 and 1890), "Office Corporation" (check numbers 1816 and 1903), and "Office Supplies" (check number 1895).

49. The Famous Garments checks were endorsed by Famous Garment Corporation and deposited in Famous Garment Corporation's account at Union Planters Bank in Miami, Florida.

50. On or about March 11, 1999, Respondent submitted a Credit Application to Eastbay, Inc., a mail order company that sells athletic apparel and supplies, seeking to open an account in the name of BTW. She signed the application, although she was not authorized to do so. On the application, Respondent indicated that the "ship to name" that Eastbay should use in delivering items purchased through the account was "Mrs. Darling."

51. The BTW account was opened on or about March 11, 1999. Within a couple of days of the opening of the account, Respondent purchased for her personal use four pairs of expensive athletic shoes from Eastbay, the cost of which ($577.91 in total) was

    billed to the account: Two pairs of the same colored (combination of white, black, and gray) Nike Air Jordans XIV athletic shoes, sizes 10 1/2 and 11 1/2, costing $149.99 each, plus $33.97 for United Parcel Service "next day delivery" shipping, for a total of $333.95; one pair of raisin, pimento, and cream-colored, size 10 1/2, Nike Air Max Plus athletic shoes, costing $124.99, plus $8.99 for shipping, for a total of $133.97; and one pair of orange, black, and white-colored, size 10 1/2, Reebok Fusion 3DMX athletic shoes, for a total cost of $109.99.

52. At the time of these purchases, BTW (whose school colors were orange and black) did not buy athletic shoes for its students.

53. As principal of Booker T. Washington Senior High School, Ms. Evans has authorized the purchase of athletic shoes for members of school teams, but she has never authorized the purchase of shoes costing in excess of $50.00. 3/

54. The athletic shoes that Respondent purchased from Eastbay were paid for, in part, by monies in BTW's SunTrust checking account.

55. Of the total cost of these purchases ($577.91), all but

    
    

    $8.98 was paid for with BTW funds (from BTW's SunTrust checking account). The balance ($8.98) was paid by money order.

56. Respondent wrote and signed two BTW checks, check numbers 1870 and 1882, that she sent to Eastbay, after she had Ms. Oats co-sign them.

57. Check numbers 1870 and 1882 were made out to "East Bay, Inc." and "East Bay," respectively. Ms. Oats was familiar with East Bay. She knew that it sold sporting goods, including athletic footwear.

58. Check number 1870 was in the amount of $333.95. It was dated March 14, 1999. Written on the "for" line of check number 1870 was "001551924," the number of the invoice for the Nike Air Jordans XIV athletic shoes that Respondent had purchased.

59. Check number 1882 was in the amount of $234.98. It was dated March 23, 1999. Written on the "for" line of check number 1882 was "1602572, 1566457," the numbers of the invoices for the Reebok Fusion 3DMX (invoice number 1602572) and Nike Air Max Plus (invoice number 1566457) athletic shoes Respondent had purchased.

60. In making transaction register entries concerning check numbers 1870 and 1882, Respondent entered the following vendor/payee names: "Interscholastic" (check number 1870) and "Eastbay, Inc." (check number 1882).

61. Check numbers 1870 and 1882 were received by Eastbay and deposited in its bank account.

62. On March 12, 1999, Respondent ordered an IBM Aptiva computer from Micro Warehouse. She ordered it in the name of BTW, although it was for her personal use. (Computers used in Miami-Dade County public schools are obtained by the School Board's Purchasing Department, through the solicitation of competitive bids.)

63. On or about March 15, 1999, Respondent sent Micro Warehouse a School Board Internal Funds Purchase Order (purchase order number 004671) that she had prepared, in the amount of

    $1,167.00, for the computer.

    
    

64. The purchase order was signed as "authorized by" Respondent, notwithstanding that she did not have the power to authorize the purchase.

65. On the line for the "originator's signature" was an illegible signature, not that of anyone who was authorized to originate such a purchase order.

66. Written in next to "ship to" were "Booker T. Washington" and "Treasurer."

67. The purchase order indicated that fund 9 was the internal fund or account that would be charged for the purchase.

68. A fund 9 purchase is supposed to be for school equipment or supplies for the day-to-day operation of the school costing no more than $750.00.

69. The computer that Respondent ordered from Micro Warehouse was shipped to BTW on March 15, 1999.

70. BTW was charged (by invoice number E7200041) $1,169.00 for the computer, plus $25.25 for shipping.

71. The computer came with certain software that had been pre-installed (on January 18, 1999). On March 17, 1999, starting at around 10:00 p.m., after Respondent had received the computer, additional software (Microsoft Office and Corel Office) was

    installed. Voice recognition software (IBM's Via Voice) and telephone answering software (Ring Central) were subsequently loaded on the computer.

72. Respondent used the computer (for her own personal benefit) as an answering machine that answered calls placed to her home telephone number.

73. On March 18, 1999, Respondent ordered from Micro Warehouse, in the name of BTW, another item that was for her personal use. The order she placed this time was for a 17-inch IBM monitor that was compatible with the computer she had previously ordered from Micro Warehouse.

74. The monitor was shipped to BTW later that same day.

    
    

75. BTW was charged (by invoice number E7351901) $379.00 for the monitor, plus $17.48 for shipping.

76. Monies in BTW's SunTrust checking account were used to (partially) pay for the computer and monitor that Respondent had purchased from Micro Warehouse.

77. Respondent wrote and signed four BTW checks, check numbers 1877, 1879, 1896, and 1902, totaling $1,327.73, that she sent to Micro Warehouse, after she had Ms. Oats co-sign them.

78. Check number 1877 was made out to "Microwarehouse Supplies." It was in the amount of $383.25 and dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3606623," which was the number that Micro Warehouse had assigned the order she had placed for the computer.

79. Check number 1879 was also made out to "Microwarehouse Supplies." It was in the amount of $396.48 and, like check number 1877, dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3746706," which was the number that Micro Warehouse had assigned the order she had placed for the monitor.

80. Check number 1896 was made out to "Microwarehouse." It was in the amount of $228.00 and dated March 26, 1999. On the "for" line of the check, Respondent wrote "#E7200041," which was number of the invoice for the computer.

81. Check number 1902 was also made out to "Microwarehouse." It was in the amount of $320.00 and, like check number 1896, dated March 26, 1999. On the "for" line of the check, Respondent wrote "42248971," which was number of the invoice for the monitor.

82. In making transaction register entries concerning check numbers 1877, 1879, 1896, and 1902, Respondent entered the following vendor/payee names: "Microwarehouse" (check numbers 1877, 1896, and 1902) and "Microwarehouse Supplies" (check number 1879).

83. Check numbers 1877, 1879, 1896, and 1902 were received by Micro Warehouse and deposited in its Bank of America account.

84. On March 25, 1999, Respondent purchased $237.85 worth of items from the Brickell Village Publix, which were used for her own personal benefit.

85. The items were charged to BTW's account at Publix (customer charge number I-02555383) and paid for with BTW funds (from BTW's SunTrust checking account).

86. The BTW check used to pay Publix Supermarkets, Inc. (check number 1892) was dated March 26, 1999, and in the amount of $395.49. (It covered purchases other than those, described above, that Respondent had made on March 25, 1999.) The check was signed by Respondent and co-signed by Ms. Oats. On the "for" line of the check, Respondent wrote "#2466057, 2555383, 2389160."

87. The completed check requisition form that Respondent presented to Ms. Oats indicated that the science club was the internal fund or account that would be charged for the purchases paid for by check number 1892, even though these purchases were not for the benefit of the science club. (Indeed, the science club did not have authorization to make any purchases at the Brickell Village Publix.)

88. In early April of 1999, during spring break, Mr. Payne went to BTW to check the mail the school had received. Only he and the custodians were present in the building.

89. In going through the mail, Mr. Payne found a bank statement from SunTrust. Enclosed with the bank statement were various cancelled BTW checks. Among the cancelled checks were checks that Respondent had sent to Famous Garments, Eastbay, and Micro Warehouse. Also enclosed with the statement was a receipt

    for the purchases Respondent had made at the Brickell Village Publix on March 25, 1999.

90. Mr. Payne became suspicious when he saw the Micro Warehouse checks (which were co-signed by Ms. Oats, not Mr. Payne). The previous month (March of 1999), Respondent had asked Mr. Payne to sign a check made out to Micro Warehouse. When Mr. Payne looked at the check requisition form that accompanied the check, he noticed that it did not indicate the "funding structure." He therefore inquired of Respondent which school program was to be charged for the purchase. Respondent had no answer. Neither was she able to name for Mr. Payne the person who had ordered the items being purchased. Given Respondent's failure to satisfactorily respond to his questioning, Mr. Payne refused to sign the check and instead wrote "void" on it.

91. His suspicion aroused, Mr. Payne contacted the School Board's Internal Accounts office. He subsequently spoke to Julio Miranda, a director in the School Board's Office of Management and Compliance Audits, who told him "to make sure [to] hold on to these [cancelled checks that had been enclosed with the bank statement], and all the paperwork and bills." Mr. Miranda advised Mr. Payne that he "would send someone out" to BTW.

92. After spring break, Respondent started coming to work earlier than usual, often before Mr. Payne, and leaving work later than usual.

93. This unusual attendance pattern stopped when the investigative audit at the school, conducted by the School Board's Office of Management and Compliance Audits, began.

94. Claude Remy was the field auditor that Mr. Miranda assigned to work at BTW on the audit.

95. Upon arriving at BTW, Mr. Remy examined the school's transaction register, along with the records that Respondent, as the school's treasurer, was responsible for maintaining concerning purchases made with BTW funds. His examination revealed that there was no supporting documentation for some of the checks listed on the transaction register. The checks without supporting documentation were those (described above) that Respondent had used, without proper authorization, to pay for items she purchased for her personal use (Above-Described Checks). The supporting documentation that she had shown to the school administrators whom she had asked to co-sign these checks was nowhere to be found. Mr. Remy was able to locate supporting documentation for all of the other checks listed on the transaction register, however. 4/

96. When Mr. Remy asked Respondent where he could find the supporting documentation for the Above-Described Checks, Respondent told him that she did not know, but suggested that Mr. Payne might have removed these documents from her office during spring break. In fact, Mr. Payne had done no such thing.

97. Mr. Payne already had in his possession copies of some of the Above-Described Checks (having received them along with the bank statement that had come in the mail during spring break). At the request of Mr. Remy, he obtained copies of the remaining Above-Described Checks from SunTrust.

98. Mr. Payne, together with Mr. Remy, also contacted Famous Garment Corporation, Eastbay, and Micro Warehouse and asked them to provide any documentation they might have concerning transactions with BTW, a request with which these vendors complied.

99. Mr. Remy questioned Respondent about the Famous Garments checks. Respondent told him that these checks were for "office materials," which, as she knew, was not true. (As noted above, at no time material to the instant case has Famous Garments even sold office materials or supplies.)

100. Mr. Remy also asked Respondent about the athletic shoes that had been purchased from Eastbay. In response to Mr. Remy's inquiry, Respondent claimed that the coach of BTW's basketball team had ordered the shoes along with the uniforms he had ordered. 5/

101. Mr. Miranda himself visited the school during the course of the audit and interviewed Respondent. During one interview, with respect to the items that had been purchased at the Brickell Village Publix on March 25, 1999 (with BTW funds), Respondent admitted to Mr. Miranda that she had "donat[ed]" some

     of these items for use at an employee's bridal shower to cover her personal share of the cost of the shower (which she had agreed to assume) and that she had appropriated the remaining ($50.97 worth of) items for her own use.

102. Mr. Miranda had first visited BTW and spoken with Respondent on April 13, 1999. During this initial visit, he talked with Respondent about the Micro Warehouse purchases. He showed her the Micro Warehouse checks that Mr. Payne had found (during spring break) in the envelope containing the bank statement from SunTrust. Mr. Miranda then asked Respondent if she knew anything about these checks. Respondent claimed not to remember what the checks were for.

103. The following day, Thursday, April 14, 1999, Mr. Remy arrived at the school. Upon his arrival, he spoke with Mr. Payne, who told him of the concerns he had regarding the Micro Warehouse checks. Mr. Remy and Mr. Payne contacted Micro Warehouse and were faxed a copy of an invoice that reflected that BTW had purchased an IBM Aptiva computer from Micro Warehouse. The invoice contained, among other things, the serial number of the computer.

104. After obtaining the invoice, Mr. Remy approached Respondent and asked her to show him the computer so that he could make sure that it matched the serial number set forth on the invoice and that it had a property control (PC) number.

     (Every School Board item costing more than $750.00 must have a PC number.)

105. Respondent claimed that she did not know where the computer was. Mr. Remy, accompanied by Respondent, looked for the computer the remainder of that day (April 14, 1999) and the following day (Friday, April 15, 1999). The computer was not in any of the places that he searched.

106. Upon Mr. Remy's return to BTW the following Monday morning (April 18, 1999), Respondent informed him that the computer had been located. She then took him to the computer, which was in open view in a storage area on the first floor of the school. Mr. Remy had been in this storage area the week before with Respondent and he had not seen the computer.

107. After verifying that the computer's serial number was the same as the serial number on the invoice and noting that the computer did not have a PC number, Mr. Remy contacted Mr. Miranda.

108. Pursuant to Mr. Miranda's instructions, Mr. Remy impounded the computer and transported it to Mr. Miranda's office.

109. While the computer was in his possession, Mr. Miranda asked Marla Berenson, the School Board's Executive Director of Electronic Processing Audits, to look at it and check for signs of "personal usage."

110. Ms. Berenson obtained a keyboard, mouse, monitor, and printer, hooked them up to the computer, and then turned on the computer.

111. She discovered that software typically found on School Board-owned computers was not installed on the computer.

112. Among the programs she noticed on the desktop was Ring Central, a program not typically used by the School Board. She opened a Ring Central file that contained a log of incoming and outgoing telephone calls (log file). The telephone numbers from which the incoming calls were made and the telephone numbers to which the outgoing calls were made, as well as the dates and times of the calls and their duration, were set forth on the log. An examination of the log revealed that the incoming and outgoing calls were made "after normal business hours at the school district." Ms. Berenson printed copies of approximately 50 pages of the log file and gave these copies to Mr. Miranda, when she returned the computer to him.

113. The computer remained in Mr. Miranda's office until June 16, 1999, when Mr. Miranda relinquished possession of the computer to Sergeant Oren Paisant of the School Board's Division of School Police, who had been assigned to investigate the purchasing activities at BTW.

114. Mr. Miranda also provided Sergeant Paisant with the copies of the Ring Central log file that Ms. Berenson had printed for him. Sergeant Paisant obtained telephone records for one the

     telephone numbers from which, according to the log, an incoming telephone call (answered by the computer) had been placed. An examination of the telephone records revealed that the call in question had been placed to Respondent's home telephone number.

115. With the assistance of a local Florida Department of Law Enforcement (FDLE) agent, Sergeant Paisant removed the hard drive from the computer. He then placed it in a manila envelope and mailed it to the FDLE crime laboratory in Tampa, in care of Brian Criste, a crime laboratory analyst working in FDLE's computer evidence recovery section. Mr. Criste is certified by the State of Florida as a forensic computer evidence recovery analyst. In a letter accompanying the hard drive, Sergeant Paisant advised Mr. Criste that the School Board was interested in finding out if there was anything on the hard drive indicating "personal use" by Respondent. Respondent's name, date of birth, home address, home telephone number, and social security number were set forth in the letter.

116. Mr. Criste searched the computer's hard drive using forensic software ("Encase") specifically developed for this purpose.

117. "Encase" is the "standard software" used by forensic computer evidence recovery analysts in the United States. It is generally accepted as reliable by the analyst community. Mr. Criste himself and his agency have tested "Encase" and determined it to be reliable.

118. "Encase" enables the user to see a "picture of everything that's on that hard drive," without modifying any of its content.

119. Among the things that Mr. Criste saw on (and recovered from) the hard drive he had been sent by Sergeant Paisant was a registration file (named "REG.REG."), created when the Via Voice program was installed, which contained Respondent's name, home address, and home telephone number. He also recovered from the hard drive several sound files.

120. Mr. Criste copied the recovered files on a CD-ROM, which he sent to Sergeant Paisant, along with a forensic image backup of the hard drive. The original hard drive was later returned to Sergeant Paisant.

121. Sergeant Paisant listened to the sound files on the

     
     

     CD-ROM Mr. Criste had sent him. He recognized Respondent's voice on one "outgoing message leaving a greeting for anyone who was calling." He also heard the voices of people (other than Respondent) leaving messages for "Rosy" and, in one instance, for "Rosa or Rosy Darling."

122. On October 7, 1999, following the completion of Sergeant Paisant's investigation, Norman Lindeblad, a District Director in the School Board's Office of Professional Standards (who, on May 7, 1999, had removed Respondent from the BTW school site and given her an alternative work assignment at the Region IV office) conducted a conference-for-the-record with Respondent,

     at which a copy of Sergeant Paisant's investigative report was presented to and reviewed with Respondent. Respondent was then given the opportunity to respond to the allegations against her. At the conclusion of the conference, Respondent was advised that recommendations for her dismissal would be forthcoming.

123. Such recommendations were subsequently made by Ms. Evans and Ms. Payne to the Region IV office.

124. On November 4, 1999, Mr. Lindeblad conducted a pre- dismissal conference-for-the-record with Respondent. Again, Respondent was given the opportunity to address the allegations against her.

125. On November 17, 1999, the School Board suspended Respondent and initiated a proceeding to terminate her employment.

     CONCLUSIONS OF LAW

     
     

126. "In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.

127. Such authority extends to personnel matters. Section 231.001, Florida Statutes ("Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the

     assignment of duties and responsibilities for all district employees."). The "rules governing personnel matters" that have been adopted by the School Board include School Board Rule 6Gx13- 4A-1.21, which provides, in pertinent part, as follows:

     Permanent Personnel RESPONSIBILITIES AND DUTIES

     1. Employee conduct

        
        

        All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.

128. A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Florida Statutes.

129. As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Section 447.209, Florida Statutes.

130. It, however, must exercise these powers in a manner that is consistent with the requirements of law.

131. "Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in

     dispute." 6/ Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

132. A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).

133. Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1992).

134. At the hearing, the burden is on the district school board to prove the allegations contained in the notice.

135. Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise (which the Union Contract does not) 7/ the district school board's proof need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were

     true . . . ."); Allen v. School Board of Dade County,

     
     

     571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent

     and substantial evidence to support both charges by a preponderance of the evidence standard.").

136. Where the employee sought to be terminated is an "educational support employee," the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes, 8/ which provides, in part, as follows:

     (1) As used in this section:

     
     

     1. "Educational support employee" means any person employed by a district school system who is so employed as . . . a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require

        20 or more hours in each normal working week.

        
        

     2. "Employee" means any person employed as an educational support employee.

        
        

     3. "Superintendent" means the superintendent of schools or his or her designee.

     
     

     (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist.

     
     

     1. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective

        bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.

        
        

     2. In the event the superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement.

137. Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the Union Contract).

138. Pursuant to Section 231.3605, Florida Statutes, her employment may be terminated only "for reasons stated in the collective bargaining agreement."

139. An examination of the provisions of the Union Contract offered into evidence in the instant case reveals that bargaining unit members covered by the agreement, who (like Respondent) have successfully completed their probationary period, may be dismissed only for "just cause," which "includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." The Union Contract further provides that these "charges are defined, as applicable, in State Board Rule 6B-4.009."

140. Rule 6B-4.009, Florida Administrative Code, contains the "criteria for suspension and dismissal of instructional personnel." It provides, in pertinent part, 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. 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, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system. 9/ . . .

     
     

     (6) 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 fellow man or to society in general, and the doing of

     the act itself and not its prohibition by statute fixes the moral turpitude. 10/

141. The Code of Ethics of the Education Profession (adopted in Rule 6B-1.001, Florida Administrative Code) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Rule 6B-1.006, Florida Administrative Code), which are referenced in the definition of "misconduct in office" set forth in Rule 6B-4.009(3), Florida Administrative Code, provide, in pertinent part, as follows:

     6B-1.001 Code of Ethics of the Education Profession in Florida. . . .

     
     

     1. 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.

        
        

        6B-1.006 Principles of Professional Conduct for the Education Profession in

        Florida . . . .

        
        

     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. . . .

     
     

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

     
     

142. The Amended Notice of Specific Charges (Amended Notice) served on Respondent in the instant case alleges that

     "just cause" exists to terminate Respondent's employment inasmuch as she is guilty of "neglect of duty" (Count I), "misconduct in office" (Count II), "immorality" (Count III), "conduct unbecoming a School Board employee" (Count IV), "theft" (Count V), and "incompetency" (Count VI) as a result of her having made "unauthorized purchases [of women's clothing from Famous Garments, computer equipment from Micro Warehouse, and athletic shoes from Eastbay] using school funds in the amount of approximately $5,800" (as described in paragraphs 5 and 6 of the Amended Notice), having "disguised her personal purchases by entering incorrect information into school records" (as described in paragraph 7 of the Amended Notice ), and having made "unauthorized purchases of personal items, including but not limited to bath soaps, detergent and bleach from Publix, using BTW funds" (as described in paragraph 8 of the Amended Notice).

143. At the final hearing held in this case before the undersigned, the School Board presented compelling evidence (that Respondent failed to rebut or explain) establishing that Respondent engaged in the wrongful conduct described in paragraphs 5 through 8 of the Amended Notice, and it thereby met its burden of proving Respondent's guilt (by a preponderance of the evidence) as to Counts I through VI of the Amended Notice (which allege "neglect of duty," "misconduct in office," "immorality," "conduct unbecoming a School Board employee," "theft," and "incompetency"). 11/

144. Respondent's "neglect of duty," "misconduct in office," "immorality," "conduct unbecoming a School Board employee," "theft," and "incompetency" provide the School Board with "just cause," under the Union Contract, to terminate her employment.

145. The requirements prescribed by Section 231.3605, Florida Statutes, and the Union Contract having been met, the School Board should take final action to effectuate Respondent's termination on the grounds set forth in Counts I through VI of the Amended Notice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through VI of the Amended Notice.

DONE AND ENTERED this 28th day of August, 2000, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2000.

ENDNOTES

1/ Ms. Oats is no longer employed by the School Board. Since July of 1999, she has worked for the Palm Beach County School Board.

2/ Check number 1421 was for $295.00.

3/ Julio Miranda, a director in the School Board's Office of Management and Compliance Audits, credibly testified that he knew of no instance, in the 18 years he had been in his position, where any Miami-Dade County public school had purchased athletic shoes as expensive as the ones Respondent had purchased.

4/ That only the Above-Described Checks lacked supporting documentation is "particularly suspect." The Florida Bar v. Howard Gross, 610 So. 2d 442, 444 (Fla. 1992)("To dispute the Bar's evidence, Gross testified that the exchange of money was partial payment for a $15,000 debt, past due more than ten years. The referee found Gross's evidence 'implausible.' Not only did Gross never list the alleged debt as an asset on his financial disclosure statement, but he also failed to produce any personal records to evidence the debt save a single piece of paper with numbers alleged to be a record of repayments. The referee noted that the absence of records was particularly suspect when considering testimony of Gross's own witness relating to Gross's otherwise meticulous financial record-keeping.").

5/ In assessing the plausibility of Respondent's assertion that the athletic shoes were ordered by the basketball coach, it is important to consider, among other things, that only four pairs of shoes were ordered; the shoes were not all ordered at the same time, nor were they all the same style or color; only one pair of shoes was orange and black (the school's colors); the shoes were shipped to BTW in care of Respondent, not in care of the coach; and BTW did not have, at the time, a policy of purchasing any athletic shoes for its student-athletes (much less athletic shoes as expensive as those purchased from Eastbay).

6/ "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

7/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority,

522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of

employment . . . ."); Palm Beach County School Board v. Auerbach, No. 96-3683 (Fla. DOAH February 20, 1997) (Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . .

However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").

8/ Notwithstanding the holding in Rosario v. Burke, 605 So. 2d 523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non- certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified district school board personnel:

We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd. of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.

Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.

9/ "Immorality" and "misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment where the conduct in which the employee engaged is of such nature that it "must have impaired" the employee's "service" (in the case of "immorality") or "effectiveness (in the case of "misconduct in office"). See Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995).

10/ Theft is "conduct that is inconsistent with the standards of public conscience and good morals," as well as a crime involving "moral turpitude." See Cirnigliaro v. Florida Police Standards and Training Commission, 409 So. 2d 80, 81 (Fla. 1st DCA 1982)("violati[on of] 18 U.S.C. s. 656 by knowingly and willfully embezzling, abstracting, purloining and misapplying less than

$100.00" held to be crime involving moral turpitude); Matala v. Department of Banking and Finance, 1994 WL 1027936 (Fla. DOAH 1994 (Recommended Order)("As a general rule it may be said that almost all crimes involving fraud, larceny, or dishonest dealing involve moral turpitude."); Morgan v. Latcham, 1993 WL 943724 (Fla. DOAH 1993) (Recommended Order)(teacher engaged in immoral conduct by attempting to steal generator from home improvement store); School Board of Palm Beach County v. Kenny, 1989 WL 645255 (Fla. DOAH 1989)(Recommended Order)(burglary and grand theft constitute "conduct . . . inconsistent with public conscience and good morals"); Kimble v. Worth County R-III Board of Education, 669 S.W.2d 949, 953 (Mo. App 1984)("The taking of property belonging to another without consent, notwithstanding its return when confronted with such wrongdoing, breaches even the most relaxed standards of acceptable human behavior, particularly so with regard to those who occupy positions which bring them in close, daily contact with young persons of an impressionable age".); Lesley v. Oxford Area School District, 420

A. 2d 764, 766 (Pa. Commw. Ct. 1980)("The term immorality, while

not defined in the Code has been judicially defined as 'a course of conduct [that] offends the morals of the community and is a

bad example to the youth whose ideals a teacher is supposed to foster and elevate.' . . . Clearly, shoplifting falls squarely within this definition.").

11/ The record evidence does not establish that any criminal charges have yet been brought against Respondent. Accordingly, the final count of the Amended Notice (alleging "conviction of a crime involving moral turpitude") should be dismissed.

COPIES FURNISHED:

Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Philip Michael Cullen, III, Esquire 621 South Federal Highway, Suite 4 Fort Lauderdale, Florida 33301

Roger C. Cuevas, Superintendent Dade County School Board

1450 Northeast Second Avenue Room 92

Miami, Florida 33132-1308

Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-004943

Orders for Case No: 99-004943