STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ST. LUCIE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 02-0973
)
CELESTINE BAKER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.569, Florida Statutes, and Subsection
of Section 120.57, Florida Statutes, on September 25 and 26, 2002, in Fort Pierce, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of
Administrative Hearings.
APPEARANCES
For Petitioner: Elizabeth Coke, Esquire
David Miklas, Esquire
J. David Richeson & Associates, P.A. Post Office Box 4048
Fort Pierce, Florida 34948
For Respondent: Thomas L. Johnson, Esquire
Chamblee, Johnson & Haynes, P.A.
215 West Verne Street, Suite D Tampa, Florida 33606
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Statement of Charges.
If so, what action, if any, should be taken against Respondent.
PRELIMINARY STATEMENT
On February 15, 2002, the Superintendent of Schools of St. Lucie County, Dr. William Vogel, filed with the St. Lucie County School Board (School Board), and served on Respondent, a Statement of Charges and Petition to Terminate Celestine Baker's Employment with School Board, in which he made the following "charges" against Respondent:
That Celestine Baker is an employee of the School Board of St. Lucie County, Florida as an Exceptional Student Education ("ESE") teacher.
That Celestine Baker is covered by a Professional Service[] Contract.
In addition to her salary as an ESE teacher, Celestine Baker also receives additional pay serving as a hospitalized/homebound teacher outside her regular teaching schedule.
That Celestine Baker submitted service logs for time periods of 9/25/00-5/25/01, in which she claimed to have provided hospitalized/homebound services to a student (student #1).
That Ms. Baker did receive payment for all of the hours that her service logs of 9/25/00-5/25/01 reflect as worked.
That student #1 did not receive hospitalized/homebound services from Ms. Baker on some of the dates that Ms. Baker claimed to have provided such services.
That student #1 was hospitalized at an out-of-town hospital on 9/25/00; 9/26/00; 9/27/00; 9/28/00; 10/12/00; 10/16/00; 10/17/00; 10/18/00; 10/19/00; 10/20/00; 10/23/00; 10/24/00; 10/25/00; 11/6/00; 11/7/00; 1/26/01; 1/29/01; 1/30/01; 1/31/01; 5/1/01; 5/2/01; 5/3/01; 5/4/01; 5/7/01; 5/8/01; 5/9/01; 5/10/01; 5/11/01; 5/15/01; 5/16/01; 5/17/01; and 5/18/01, all of which are dates that Ms. Baker claimed to have provided hospitalized/homebound services to student #1.
That Ms. Baker did not visit student #1 while student #1 was hospitalized on 9/25/00; 9/26/00; 9/27/00; 9/28/00; 10/12/00; 10/16/00; 10/17/00; 10/18/00; 10/19/00; 10/20/00; 10/23/00; 10/24/00; 10/25/00; 11/6/00; 11/7/00; 1/26/01; 1/29/01; 1/30/01; 1/31/01; 5/1/01; 5/2/01; 5/3/01; 5/4/01; 5/7/01; 5/8/01; 5/9/01; 5/10/01; 5/11/01; 5/15/01; 5/16/01; 5/17/01; or 5/18/01.
That, regarding some but not all of the time indicated on Ms. Baker's service logs for 9/25/00-5/25/01, Ms. Baker:
signed parent #1's signature on the service logs without advising or receiving authorization from parent #1.
provided parent #1 with blank service logs and directed parent #1 to sign the blank service logs.
told parent #1 on at least two occasions that parent #1 had to sign Ms. Baker's service logs even though Ms. Baker did not provide any services to student #1; and/or
directed parent #1 to sign Ms. Baker's service logs or else student #1 would lose access to hospitalized/homebound services.
That in approximately October 2000 Ms. Baker submitted service logs concerning a different student (student #2) on which Ms. Baker signed the parent's signature on the service log without advising or receiving authorization from parent #2.
That teachers who provide hospitalized/homebound services to students are required to fill out the date, time, total hours of service provided on the service log each time that they go to a student's home in order to provide services. The parent or adult present is supposed to sign this service log on each occasion that services are provided.
That Ms. Baker failed to accurately fill out service logs and have the adult who was present at the time that the hospitalized/homebound services were allegedly provided sign the service log(s) on each occasion that services were alleged to have been provided.
That page 9, #6 of the training manual for teachers in relation to the ESE Hospitalized/Homebound Program requires that all time indicated on service logs must be for "actual student contact hours."
That not all of the time indicated on Ms. Baker's service logs for 9/25/00-5/25/01 was for actual student contact hours.
That Ms. Baker requested to be paid, and received such payment, for services that she did not provide, which amounted to over
$300.00, which is a felony in the State of Florida.
That Ms. Baker did violate the Principles of Professional Conduct for the
Education Profession, which require that instructors must:
Not exploit a relationship with a student for personal gain or advantage (Florida Administrative Code ("F.A.C.") § 6B-1.006(3)(h));
Not use institutional privileges for personal gain or advantage (F.A.C. § 6B- 1.006(4)(c));
Not submit fraudulent information on any document in connection with professional activities (F.A.C. § 6B-1.006(5)(h));
Maintain honesty in all professional dealings (F.A.C. § 6B-1.006(5)(a));
Seek to exercise the best professional judgment and integrity (F.A.C. § 6B- 1.001(2));
Strive to achieve and sustain the highest degree of ethical conduct (F.A.C. § 6B-1.001(3));
That Celestine Baker did violate the following School Board rules (3.56(3)(b)), attached as Exhibit "A," which provide a non-inclusive list of infractions which "warrant disciplinary action":
2) Dishonesty, theft, or falsifying records;
4) Falsifying time records or allowing or requesting another employee to falsify a time record;
19) Violation of any rule, policy, regulation or established procedure;
29) Any violation of the Code of Ethics of the Education Profession, the Principles of Professional Conduct for the Education Profession, the Standards of Competent
Professional Performance, or the Code of Ethics for Public Officers and Employees.
That the foregoing acts as set forth in this statement and attached exhibit, either independently or in combination, constitute just cause under Fla. Stat. § 231.36 to terminate Celestine Baker's employment with the St. Lucie County School Board.
By letter dated February 20, 2002, from the office of her attorney, Respondent "request[ed] a hearing before an administrative law judge appointed by the [Division] of Administrative Hearings as provide[d] by §[§] 120.569 and 120.57, Fla. Stat." on the charges against her. On March 7, 2002, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing that Respondent had requested.
The final hearing in the instant case was initially set for May 23 and 24, 2002. On April 17, 2002, Respondent filed a Request for 90 Day Stay and/or Motion for Continuance (Respondent's Request), in which she stated the following:
The case is currently set for hearing on May 23 and 24, 2002.
The Respondent, CELESTINE BAKER, has been criminally charge[d] with theft. These charges arise out of the same facts and circumstances underlying the instant action.
If the Respondent is compelled to testify in either a deposition or the upcoming DOAH hearing about the facts and
circumstances forming the basis for the felony charges against her [it] would violate her Fifth Amendment right against self-incrimination.
Moreover, compelling the Respondent to go forward with the upcoming DOAH hearing before her criminal charges have been resolved violates Respondent's Due Process Rights. If the hearing goes forward before her criminal charges have been resolved, the Respondent will be precluded from putting on an adequate defense.
Respondent's counsel contacted counsel for Petitioner and he opposes this request and/or motion.
Therefore, the Respondent requests a 90 stay and/or continuance until the criminal case is resolved.
On April 18, 2002, the School Board filed a Memorandum in Opposition to Respondent's Request for 90 Day Stay and/or Motion for Continuance. A hearing on Respondent's Request was held by telephone conference call that same day.
Thereafter, on April 25, 2002, the parties filed a Joint Stipulation to Stay Proceedings for 60 Days, in which they stated the following:
The Respondent has been charged with criminal felonies.
Based on the pending criminal proceeding, Respondent filed a Motion to Stay for 90 Days and/or Motion for Continuance.
Petitioner filed an opposition to the above-referenced Motion.
On April 18, 2002, Judge Lerner held a telephone conference on the Motion. After discussion, it was determined that the parties needed to discuss various issues with their clients and another telephone conference was scheduled for April 25, 2002 at 10:00 a.m.
The parties have conferred and reached an agreement on this issue as follows:
Respondent agrees to waive her right to any backpay from May 22, 2002 until the date the hearing is rescheduled; and
The parties agree to stay the proceedings for a period of sixty days at which time the parties will confer about a mutually agreeable date for the final hearing in this matter.
By Order issued that same day, the instant case was placed in abeyance and the parties were directed to file a status report no later than June 24, 2002.
On June 24, 2002, the School Board filed a Status Report, advising the undersigned that Respondent estimated that the final hearing in this case would take three days, that the parties were available for hearing on September 23 through 27, 2002, and that "Respondent's counsel's concerns of going forward with the administrative matter prior to adjudication of Respondent's criminal case remain[ed] unchanged."1 On July 2, 2002, the undersigned issued a Notice of Hearing setting the final hearing in this case for September 25 through 27, 2002.
On September 10, 2002, Respondent filed a Status Report as to Potential Need for a Continuance, in which she stated the following:
Respondent's hearing in this matter is scheduled for September 25-27, 2002 in Ft. Pierce, Florida.
Respondent may need to request a continuance of the hearing in order to be able to depose a critical witness, Brenda Washington, against whom criminal charges are currently pending. Ms. Washington's testimony is critical in this matter because she was Respondent's supervisor during the relevant time of Respondent's employment with Petitioner. As such, Ms. Washington's statements may provide Respondent a defense for actions Respondent took that may otherwise be considered a violation of school board policy.
Respondent has been unable to take Brenda Washington's statement and has also been unable to obtain from the State Attorney's Office a copy of Ms. Washington's statement taken by the school district during its investigation of the allegations against her and Respondent.
Respondent wants to take Brenda Washington's deposition, but all indications are that Ms. Washington will invoke her Fifth Amendment rights.
However, once criminal charges against Ms. Washington are resolved, she will no longer be entitled to Fifth Amendment protection and Respondent can then depose her.
Counsel for Respondent has discussed with counsel for Petitioner that she may seek a continuance of the hearing in this matter until such time as criminal charges
are no longer pending against Brenda Washington and Respondent can take Ms. Washington's deposition. At present, Petitioner has indicated that it will oppose such a motion, but is willing to reconsider should Respondent be unable to depose Ms.
Washington.
Respondent is filing this status report to ensure that the Court is kept informed as to the developments in this matter.
On September 11, 2002, the School Board filed a Response to Respondent's Status Report as to Potential Need for a Continuance, in which it argued, persuasively,2 that it would be inappropriate to continue the final hearing in this case based upon "pure conjecture that Ms. Washington will someday in the future object to her deposition being taken by Respondent."
The parties' Joint Pre-Hearing Stipulation was filed on September 19, 2002. It included, among other things, the following "[c]oncise [s]tatement of [a]dmitted [f]acts [r]equiring [n]o proof at [h]earing":
Respondent was employed by Petitioner as an Exceptional Student Education ("ESE") classroom teacher during the 2000-2001 school year.
In addition to her position as an ESE teacher, Respondent also served as a hospitalized/homebound teacher in Petitioner's Hospitalized/Homebound Services Program during the 2000-2001 school year and received additional compensation for doing so.
Respondent's immediate supervisor in the Hospitalized/Homebound Services Program for
the 2000-2001 school year was Brenda Washington, Program Specialist.
During the 2000/2001 school year, Brenda Washington was in a subordinate position to Sandra Akre, the Director of Exceptional Student Education ("ESE") and Barbara Slaga, the Executive Director of Student Services/ESE.
As a hospitalized/homebound teacher, Respondent visited the students assigned to her at their homes.
During the time that Respondent was employed with Petitioner as a teacher in the Hospitalized/Homebound Services Program, she has filled out service logs for services that she provided to students in the program assigned to her.
The services logs are records of hospitalized/homebound services the teacher has provided to students in the program and the logs document the date, time, and total hours of service provided.
Teachers who provide hospitalized/homebound services to students are required to accurately fill out and submit a hospitalized/homebound program service log ("service log") in order to document the number of hours and dates of service that the teacher provides to students.
Teachers who provide hospitalized/homebound services to students are required to obtain the signature of a parent or adult on the service log for each occasion that services are provided.
During the 2000-2001 school year, Respondent has filled out hospitalized/homebound service logs at a later date than when she actually provided the hospitalized/homebound services.
Respondent has no reason to believe that she did not receive payment for all of the hours she reflected as worked on her service logs for 9/25/00-5/25/01.[3]
Respondent included actual student contact hours as well as non-contact hours on her service logs.[4]
Once Respondent turned her service logs into the ESE office, ESE staff members processed the logs for administrative approval and signature.
As a hospitalized/homebound teacher, Respondent was entitled to financial reimbursement for work-related travel expenses over 10 miles.
To receive financial reimbursement for work-related travel expenses over 10 miles, Respondent fill out and submitted forms entitled Monthly Travel & Request for Reimbursement.
Respondent did receive payment for all of the mileage that her Monthly Travel & Request for Reimbursement forms (covering time periods 9/25/00-10/13/00; 1/16/01- 2/9/01; 2/19/01-3/2/01; and 3/5/01-3/9/01) reflect as traveled.
During the 2000-2001 school year, Respondent was assigned as the Hospitalized/Homebound Services teacher for student [S. S.]
Respondent did not visit [S. S.] in the hospital on whatever dates [S. S.] was in fact hospitalized.
During the 2000-2001 school year, Respondent was assigned as the Hospitalized/Homebound Services teacher for student [J. A.].
On February 13, 2002, Superintendent William Vogel suspended Respondent without pay and advised her of his intent to recommend termination of her employment with the School Board of St. Lucie County..
Respondent timely requested an administrative hearing regarding this matter.
No continuances of the final hearing were requested by either party following the issuance of the undersigned's July 2, 2002, Notice of Hearing, and the hearing commenced, as scheduled, on September 25, 2002.
At the outset of the final hearing, before the taking of any evidence, Brenda Washington appeared, through her attorney, and presented argument in support of her Emergency Motion for Protective Order and Motion to Quash Subpoena (Ms. Washington's Motions) filed the day before, in which she "assert[ed] her 5th Amendment right not to testify herein, and ask[ed] that the subpoena [with she had been served] be quashed and that a protective order be granted." Relying on Patchett v. Commission on Ethics, 626 So. 2d 319 (Fla. 1st DCA 1993) and Fischer v.
E.F. Hutton & Co, Inc, 463 So. 2d 289 (Fla. 2d DCA 1984), the undersigned denied Ms. Washington's Motion, holding that Ms. Washington should appear at the hearing site in compliance with the subpoena and, if and when called to the stand to testify, at that time assert her Fifth Amendment privilege "on a question- by-question basis."
Eleven witnesses testified at the final hearing: Barbara Slaga; Sandra Akre; Bennet Buckles, Jr.; Billy Tomlinson; Patricia Williams; Mary Bonner; Russell Anderson; Susan Ranew;
S.; S. S.; and Respondent Ms. Washington was also called to the stand to testify (by Respondent), but, in response to each question that she was asked, she "assert[ed] her privilege under the United States Constitution, the Fifth Amendment," and gave no testimony.
Twelve exhibits (Petitioner's Exhibits 1 through 7 and Respondent's Exhibits 1 through 5) were offered and received into evidence. Among these exhibits was "a copy of Ms.
Washington's statement taken by the school district during its investigation of the allegations against her and Respondent," which Respondent had referenced in paragraph 3 of her September 10, 2002, Status Report as to Potential Need for a Continuance.
The evidentiary record was left open to give Respondent the opportunity, if she desired, to seek a court order compelling Ms. Washington to either answer the questions she had refused to answer at hearing or risk being held in contempt. On October 2, 2002, Respondent filed the following Status Report Regarding Brenda Washington's Testimony:
Pursuant to this Court's Order, Respondent CELESTINE BAKER, by and through her undersigned counsel, hereby files this
notice that she will not attempt to compel Brenda Washington's testimony in this matter and further states as follows:
At the final hearing in this case, Respondent subpoenaed Brenda Washington as a witness. While Ms. Washington did appear at hearing pursuant to the subpoena, she refused to answer any of Respondent's questions on the basis of her Fifth Amendment privilege against self incrimination.
Prior to the closing of the record in this matter, Respondent requested the record be kept open until she could research whether an affidavit signed by Ms. Washington constituted a waiver of Ms. Washington's Fifth Amendment privilege. The Court granted Respondent's request, and granted Respondent a 10-day period in which to conduct the research. The Court requested that Respondent file written documentation by the end of the 10-day period to advise whether she intended to file a motion in circuit court to compel Ms. Washington's testimony.
Respondent's research reveals that Ms. Washington's previous statement, which is in the form of an affidavit, does not constitute a waiver of her Fifth Amendment privilege. See United States v. Fortin, 685 F.2d 1297, 1298-99 (11th Cir. 1982).
As such, Respondent hereby advises this Court that she will not file a motion in circuit court to compel Ms. Washington's testimony in this matter.
On October 3, 2002, the undersigned issued an Order Closing Evidentiary Record in the instant case. In his Order, the undersigned directed the parties to file their proposed recommended orders "no later than 30 days from the date of the
filing with the Division of Administrative Hearings of the complete transcript of the final hearing in this case, which was held on September 25 and 26, 2002."
The Division received the Transcript of the final hearing (consisting of two volumes) on October 30, 2002.
On November 22, 2002, the parties filed a motion jointly requesting an extension of the deadline for filing proposed recommended orders. That same day, the undersigned issued an Order granting the motion and giving the parties until December 6, 2002, to file their proposed recommended orders
Respondent and the School Board filed their Proposed Recommended Orders on December 6, 2002, and December 9, 2002, respectively. These Proposed Recommended Orders 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 to supplement and clarify the factual stipulations entered into by the parties:5
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in St. Lucie County, Florida, (including, among others, Parkway Elementary School, Woodland Academy, Westwood High School, Centennial High School, and Port St. Lucie High School)
and for otherwise providing public instruction to school-aged children in the county.
Among the School Board's instructional programs is its Hospitalized/Homebound Services Program (Program), which serves "students who are hospitalized [in St. Lucie County] or [otherwise] not able to come to school for at least three weeks."
Instructional services are provided to students in the Program in out-of-school settings within the jurisdictional boundaries of St. Lucie County: at the hospital (if the student is hospitalized6) or at the student's home (if the student is homebound).
These services are furnished through certified teachers who go to where the students are confined to provide them with instruction.
"[M]ost [but not all] of the teachers . . . providing services in [the Program] are teachers who teach during the course of the [regular school] day . . . at [the School Board's] schools."
In addition to receiving their regular salaries, these teachers are compensated at an hourly rate of $17.00 per hour for the time that they spend with the hospitalized or homebound students to whom they are assigned.
They are also paid at that same rate ($17.00 per hour) for the time that they spend engaging in hospitalized/homebound "pre-planning" (up to a maximum of one hour per student assignment) and hospitalized/homebound "post-planning" (up to a maximum of one hour per student assignment).
During "pre-planning," the hospitalized/homebound teacher (H/H teacher) engages in the preparations necessary for providing instructional services to the hospitalized or homebound student. These preparations include meeting with the guidance counselor and teachers at the student's home school to determine what instruction the student will be receiving and to ascertain the role, if any, the home school will play in the instructional process. "[O]btaining [needed] books and materials and creating [any necessary] lesson plans" are among the other things that an H/H teacher is expected to take care of during his or her "pre-planning" time.
"Post-planning" time is for the H/H teacher to complete the "dismissal process," which involves turning in paperwork and "meet[ing] with the secretary in the [P]rogram."
In addition to the compensation they receive for the actual contact they have with their assigned students and for their "pre-planning" and "post-planning" time, H/H teachers also get paid ($8.50, or one half of their hourly rate) "for their inconvenience" each time they make a scheduled visit to a
student's home to provide instruction and no one is there (which happens infrequently). H/H teachers are to "reinitiate services" following such a student "no show" only "after contact ha[s] been made with the home to be certain that the student w[ill] be present."
To get paid, H/H teachers must submit completed Hospitalized/Homebound Service Logs (H/H Service Logs) for each assigned student, documenting the dates and times they spent with the student, as well as their "pre-planning" and "post- planning" time and any student "no shows."
On each occasion that they visit with a student, H/H teachers must enter on the H/H Service Log for that student the date and the starting and ending times of the visit7 and obtain (on the "Parent Signature" line next to these entries) the signature of the student's parent or other responsible adult present (as verification that the visit was made as indicated by the teacher).
Because "pre-planning," "post-planning," and student "no shows" do not involve actual student contact, there is no requirement that (nor reason for) the H/H teacher to obtain the signature of the student's parent or the parent's surrogate to verify that the teacher's entries on the H/H Service Log of "pre-planning" and "post-planning" time and student "no shows" are accurate.
H/H teachers are not compensated for the time that they spend traveling in connection with the discharge of their duties, but they are reimbursed for such travel, on a per trip basis, for their mileage in excess of ten miles.
To receive such reimbursement, they must submit a completed Monthly Travel and Request for Reimbursement Form reflecting the dates of travel and, for each trip, "from where to where" they traveled, the trip's purpose, and the total number of miles traveled.
The foregoing Program policies are of a long-standing nature and were in effect at all times material to the instant case.
H/H teachers report to a Program Specialist, who oversees "the day-to-day operations of the Program."
Billy Tomlinson was the Program Specialist from 1989 to 1994. Mr. Tomlinson's successor was Bennet Buckles, Jr., who remained in the position until the beginning of the 1999-2000 school year, when Brenda Washington became the Program Specialist. Ms. Washington was the Program Specialist during the 1999-2000 and 2000-2001 school years. Ms. Washington was replaced by Talecia Jones. Karen Clover is the current Program Specialist.
Immediately above the Program Specialist in the chain of command is the School Board's Director of Exceptional Student
Education,8 whose immediate supervisor is the School Board's Executive Director of Student Services.
The Director of Exceptional Student Education and the Executive Director of Student Services are administrators who have the authority to establish and modify Program policies.
Sandra Akre is now, and has been since approximately 1998, the School Board's Director of Exceptional Student Education.
Barbara Slaga is now, and has been since 1992, the School Board's Executive Director of Student Services.
It is expected that any questions that an H/H teacher has regarding the Program will first be directed to the Program Specialist; however, H/H teachers are free to consult with Ms. Akre and Ms. Slaga, particularly if the teachers are told something by the Program Specialist that "seem[s] to be in conflict with past practice or what they have done before."9
The Program Specialist is a not an administrator, but rather is a "teacher on special assignment" responsible for seeing to it that Program policies are followed.
The Program Specialist lacks the authority to permit an H/H teacher to receive compensation for more than one hour of "pre-planning" time per student (the maximum allowed under Program policy), even where "extraordinary circumstances" exist.
Such a deviation from Program policy must be approved by an administrator.
Among the duties of the Program Specialist is to train H/H teachers.
A prerequisite to becoming and remaining an H/H teacher is participating in an annual training session conducted by the Program Specialist.
This required training is "typically . . . provided at the beginning of the [school] year" and is "extensive."
Each training session lasts "two to two-an-a-half hours [and] all the [Program] procedures and the rules" are covered, including the long-standing Program policies regarding H/H teacher compensation and reimbursement discussed above.10
The Program Specialist uses a training manual to facilitate training.
The contents of the manual for H/H teachers are reviewed during training.
A copy of the manual is given to each H/H teacher to keep and "use . . . as a reference."
Training at the beginning of the 1999-2000 school year was jointly conducted by Ms. Washington, the new Program Specialist, and Mr. Buckles, her predecessor.
The following school year, Ms. Washington conducted the training herself, using a new training manual that she had put together (2000-01 Manual or Manual).
The 2000-01 Manual contained "more detail" on some subjects than the version it replaced.
The following "Hospitalized/Homebound Procedures" were set forth in the 2000-01 Manual:
Upon admission to the Hospitalized/Homebound Program, the referral form is generated from the Doctor and submitted to the Homebound office where it will be processed.
A staffing will be held to determine eligibility for the program.
As prescribed by rule 6A-6.03020(3) the IEP will be developed on an informal basis unless they are enrolled in ESE. If enrolled in ESE, then a school based staffing MUST take place.
At this point a teacher will be assigned to provide the educational program. The assignment of the teacher will be determined by the ESE office.
The number of hours for the student will be determined on an individual basis.
The teacher is responsible for developing the Individual Education Plan as outlined in the flow chart.
Our responsibility is for the delivery of subjects that are required in the educational program NOT necessarily the elective subjects. Elective instruction should be correlated between the school and homebound teacher. Elective subjects that
are required for graduation will be given consideration.* (*This does not mean that we will not provide instruction in elective subjects.)
The guidance counselor must be an active participant in determination of the subjects to be covered.
All Hospital[ized]/Homebound teachers must use the Hospital[ized]/Homebound Conference Form. It is the responsibility of all homebound teachers to meet with all of a student's classroom teachers and document how information will be transferred. After the conference a copy must be forwarded to the principal of the school. NEVER leave the school without obtaining a signature on the form from either the guidance counselor or principal.
During the conference stress the fact that grades will improve because of one-on- one instruction. If they do not improve someone is not doing something correct[ly]. . . .
12. Assignments are to be returned on a weekly basis with communication reports going to the school along with a copy of the communication report forwarded to the Hospital[ized]/Homebound office.
The "Hospital[ized]/Homebound Staff Responsibilities" section of the 2000-01 Manual provided as follows:
Upon admission to the Hospital Homebound Program, each student will be assigned to a teacher. The teacher is responsible for:
-Attend inservice and workshops as required.
-Attend staffings at ESE office or home school as assigned.
-Setting up appointments with guidance counselors, teachers and parents.
-Completing necessary paperwork, including writing short-term objectives.
Contacting home schools to determine courses/concerns as necessary.
Act as liaison between subject area teachers and parents when needed; if a concern arises for a student in a particular class or subject area, the subject area teacher should first contact the parent. If the issue is not resolved, the Homebound teacher should be contacted for input. The specialist should be notified following the resolution by the subject area [teacher] and Homebound teacher.
-Preparing and maintaining grade sheets.
-Scheduling instructional time periods.
-Keeping accurate attendance records.
-Delivering and returning materials, textbooks, units, or tests.
-Filling out FTE individual student schedules for FTE count.
-Maintaining papers for school/parents to be mailed.
-Administering state, local, and teacher developed test/assessments.
-Completing Hospital[ized]/Homebound grade sheets.
Conferring with student, parents, and school guidance counselors on course changes or adaptations.
-Providing information to other subject area teachers about a student's medical problem,
limitations, and education background. However, if student is in a hospital, all information is confidential.
-Maintaining accurate weekly schedules and travel logs.
Completing weekly Communications logs between Hospital[ized]/Homebound and regular education teacher.
-In order for a teacher to claim pay for 1 (one) hour of pre-planning, it will be necessary to submit to us the Homebound Conference Form which shows actual attendance at school based meeting.
-In order for a teacher to obtain pay for 1 (one) hour of post-planning, it will be necessary to sign off on Homebound dismissal with Janet Cooper. At the dismissal time, all paperwork must be submitted and at the close-out staffing it will be disseminated to the appropriate school. You have 24 hours after dismissal to have all paperwork turned in to the ESE Homebound Office. You must call and make an appointment with Janet Cooper.
The "Guidelines [for] Hospitalized/Homebound Teachers" section of the 2000-01 Manual provided as follows:
Welcome to the Hospitalized/Homebound Program of St. Lucie County. Your interest and willingness to help are appreciated, and we feel sure that you will enjoy the work you do with our students.
You probably have many questions concerning this program, and we hope that these few guidelines will be of some help.
Call the school counselor to schedule a meeting.
Call the student's home and inform the parent/guardian of the meeting with the guidance counselor. It is best if the parent can meet with both of you. If they cannot, however, you can make an appointment with the parent to review the plan.
Remind the parent or guardian that a responsible adult must be present at all times while you are in the home. This may be a relative or neighbor if the parents are unable to be there. It is recommended that an average of 3-5 hours per week be spent with elementary students, 4-8 hours per week with middle school students and 7-12 hours per week with high school students, but some situations may require more or less time. (Flexibility is the name of the game in this program.) In your initial conversation with the parent, you may find out whether the student has books and/or assignments and what he/she needs from school.
Each time you visit the student, ask the adult who is there to sign your contracted teacher log. If the student is in the hospital, ask a nurse to sign it for you. Please follow the payroll schedule to assure proper payment for your services.
You will be paid for actual student contact hours. Mileage is included in your stipend for the first ten (10) miles traveled on any visit to the student residence or place of instruction. We will try to assign students within a reasonable distance from your home.
Please work with the students on regular school days, not on holidays or weekends. The School Board considers only those school days according to the official school calendar as appropriate teaching days.
When you accept a student, you will be given a packet containing all forms and information that you will need. There will
always be questions so please feel free to call. Our number at the ESE office
is . . . .
The 2000-01 Manual also contained the following "Hospitalized/Homebound Program Procedures for Completing Travel Forms":
The following procedures have been established for completing travel forms:
Contracted teachers are required to submit the travel form that coincides with the time sheet. Accounting has requested this requirement.
Stipend teachers' travel can be accumulated and then submitted after the form is completed for the month.
In the column "From Where - To Where" write from where you are leaving (ex: School Name or your home), then write the student's address (not name), next, where you returned to (ex: School Name or your home). You may write "home" because your address appears at the bottom of the form. As noted on the form "indicate clearly if round trip."
You may submit trips to the student's school to pick up homework, meetings, etc. for the student. Indicate the mileage from point of departure to the destination, then point of return.
In the column "Purpose" write the reason for the trip, such as tutor homebound student. If other than tutoring, please indicate the reason.
When calculating mileage the following steps are necessary:
Enter the total miles from your point of departure to the student's home then to your point of return. Write on the form under "Miles" the total miles for this round trip.
Then, write the subtraction of 10 miles from the total. This will be the figure allowed for reimbursement. You must write round trip total per trip minus 10 miles for each day. If this is not indicated on your form that you subtracted 10 miles for each trip, then we will subtract 10 from the daily totals to calculate your reimbursement.
At the bottom of the form, write the date you completed the form, your social security number, print your name and address, and be sure to sign. This form cannot be submitted without your signature and will be returned to you if omitted.
If you have any question, please call Janet for further assistance at . . . .
In addition, the 2000-01 Manual included copies of the following forms, among others: the Hospitalized/Homebound Conference Form, the Hospitalized/Homebound Program Record Weekly Communication Record, the H/H Service Log, and the Monthly Travel and Request for Reimbursement Form.
On the top of the Hospitalized/Homebound Conference Form in the Manual was the following statement:
The Hospital[ized]/Homebound Program is coordinating the education services for the student listed. To maintain parity with the quality education provided by the classroom teacher, the program will require a copy of course syllabi, appropriate textbooks, weekly assignments and evaluations.
*If the Hospital[ized]/Homebound teacher is responsible for grading assignment and evaluations an answer key is required.
The Guidance Department must determine if the existing course schedule is appropriate for Hospital[ized]/Homebound instruction.
Appropriate modifications to course offering or content must be determined prior to plan implementation.
The form had spaces for the student's name, address, school, grade, guidance counselor, and H/H teacher, the "date of meeting," the "subjects to be taught" by the H/H teacher, the signatures of the "classroom teachers" who would otherwise be teaching the student those subjects, and the signatures of the guidance counselor and the H/H teacher. There were also spaces to indicate, for each subject, whether assignments and examinations would be "transferred" by "PONY," the student's parent, or the H/H teacher and whether these assignments and examinations would be graded by the classroom teacher or the H/H teacher.
The Hospitalized/Homebound Program Weekly Communication Record in the Manual had spaces for the H/H teacher to indicate the student's "academic average for the week by subject."
The H/H Service Log in the Manual indicated on its face that it was a "record of hospitalized/homebound teacher services." It had spaces for the H/H teacher to indicate the
"[d]ays(s) and time(s) of the week [the] student [in question] was served." In all caps and boldface type on the log was the reminder, "Parent/Guardian signature required daily," and there were spaces on the log for such signatures. The log also contained the following certification to be signed and dated by the H/H teacher: "I hereby certify that the above services were provided by me as indicated." Underneath the signature line for the H/H teacher were signature lines for the Program Specialist and the "administrator [giving] approval."
The Monthly Travel and Request for Reimbursement Form in the Manual had four columns with the following headings, reading from left to right: "Date of Travel," "From Where - To Where (Indicate clearly if round trip)," "Purpose," and "Miles." On the bottom left hand corner of the form was the following
"Note":
Miles to and from school centers must agree with approved school mileage chart.
Each date of travel must be reported separately.
Respondent was among the H/H teachers who were trained and supervised by Ms. Washington during the 2000-01 school year.11
This was not the first year that she had taught in the Program.12
At all times that she served as an H/H teacher, Respondent was also under contract with the School Board to provide school-based instruction during the regular school day.
Although she has been employed by the School Board since approximately 1981, she has not been a teacher for this entire period of time.
From the commencement of her employment with the School Board until the 1994-95 school year, she held various noninstructional positions.
During the 1994-95 school year, Respondent graduated from Nova Southeastern University with a degree in exceptional education.
She obtained, and still holds, Florida certification in the areas of emotionally handicapped and severely emotionally disturbed.
It has only been since the 1994-95 school year, when she taught a varying exceptionalities class at Parkway Elementary School, that Respondent has worked as a teacher for the School Board.
At the beginning of the 2000-01 school year, Respondent taught at Westwood High School. In or around September 20, 2000, she was transferred to Woodland Academy, where she remained for the rest of the school year. Respondent returned to Westwood High School the next school year.
S. S. is one of the students served by the Program.
She is a sixteen-year-old girl who has Cystic Fibrosis.
Because of her illness, S. S. "runs infections quite a bit" and often needs to be hospitalized for ten days to two weeks or more at a time. As a result, "she doesn't get much time home."
J. S. is S. S.'s mother.
J. S. "work[s] a tremendously demanding job" with long hours that often prevents her from being home before evening.
Sometime after the beginning of the 2000-01 school year, in or around late September or early October of 2000, Respondent (who had already undergone the required annual training for H/H teachers) was assigned by Ms. Washington to be
S. S.'s H/H teacher.
The assignment continued until the end of the school year.
During the 2000-01 school year, S. S. was a ninth grade student taking, among other subjects, English, algebra, biology and global studies.
Her home school that year was Centennial High School.
S. S. was hospitalized at St. Mary's Medical Center in West Palm Beach, Florida, on seven different occasions during
the 2000-01 school year. The shortest of these hospital stays was ten days. The longest was 19 days.
Before each of these hospitalizations, J. S. gave the School Board notice (by telephoning either Respondent or the School Board's Exceptional Student Education office) that S. S. would be going into the hospital.
At no time during the 2000-01 school year did S. S. have access to a functioning computer (either at the hospital or at home) that she used for schoolwork.13
The School Board provided S. S. with a computer that Respondent tried to set up in S. S.'s home, but the computer "never worked."
During the period that Respondent was S. S.'s H/H teacher (and S. S. was at home and not hospitalized), Respondent did not visit S. S. every school day; rather, she visited once or twice a week.
J. S. was present for only a "few" of these visits.
She was under the impression that she did not need to be there when Respondent visited inasmuch as S. S. had "hit high school age."
The longest Respondent ever stayed with S. S. during a visit was one and half to two hours. There were only one or two visits of this length. They occurred "at the beginning" when Respondent was attempting to set up the computer in S. S.'s
home. The other visits were "short" and, for the most part, involved Respondent "just dropping off work" for S. S. When
S. S. completed the work that Respondent had dropped off for her, she gave it to her mother or her sister to give to Respondent.
Respondent provided S. S. with no instruction during her visits with S. S. except for "a little bit" of instruction in algebra.14
Respondent submitted completed H/H Service Logs (using the form contained in the Manual) on which she knowingly made false representations, with the intent to defraud the School Board,15 concerning the "services [she] provided" S. S. She did so to obtain compensation to which she knew she was not entitled.16
On many of the occasions that Respondent claimed, on the logs, she had been with S. S. providing "services," she, in fact, had not provided the "services" claimed.
Respondent made these false claims knowing that they were not true and anticipating that the School Board would rely upon them in determining the amount of pay she would receive.
J. S. was an unwitting participant in Respondent's scheme.
J. S. signed H/H Service Logs presented to her by Respondent after being told by Respondent that Respondent "had
been coming" to visit S. S. when J. S. was not home and that
J. S. needed to sign the logs to indicate that such visits had been made. J. S. took Respondent at her word about these alleged visits and followed Respondent's directions.
Some of the H/H Service Logs that Respondent gave J.
S. to sign had the dates and times of these alleged unsupervised visits already filled in. Others did not.
The evidentiary record contains twelve H/H Service Logs (collectively covering the period from September 25, 2000 to May 25, 2001) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.
On each, Respondent "certif[ied]" (by her signature) that she had "served" S. S. on the dates and times indicated thereon.
There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each date of "service[]" entered on each log.17
With one exception (the log covering the period from April 23, 2001, to May 11, 2001), each log also bears what purports to be Ms. Washington's signature on the "Program Specialist" signature line directly underneath Respondent's "certif[ication]."
On the first log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and
times during the period from September 25, 2000, to October 13, 2000: Monday, September 25, 2000, for an hour, from 8:30 to
9:3018; Tuesday, September 26, 2000, for two hours, from 7:30 to
9:30; Wednesday, September 27, 2000, for one hour, from 8:30 to
9:30; Thursday, September 28, 2000, for one hour, from 8:30 to
9:30; Friday, September 29, 2000, for three hours, from 6:30 to
9:30; Monday October 2, 2000, for two hours, from 9:00 to 11:00;
Tuesday, October 3, 2000, for two hours, from 9:00 to 11:00;
Wednesday, October 4, 2000, for two hours, from 9:00 to 11:00;
Thursday, October 5, 2000, for three hours, from 8:00 to 11:00;
Friday, October 6, 2000, for three hours, from 5:30 to 8:30;
Tuesday, October 10, 2000, for three hours, from 6:00 to 9:00;
Wednesday, October 11, 2000, for three hours, from 6:00 to 9:00; and Thursday, October 12, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that October 9, 2000, was Yom Kippur and that October 13, 2000, was an "inservice day."
On the second log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from October 16, 2000, to November 3, 2000: Monday, October 16, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 17, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 18, 2000, for two hours, from 6:00 to 8:00; Thursday, October 19, 2000, for two hours, from 6:00 to 8:00; Friday, October, 20, 2000, for one hour, from 6:00 to
7:00; Tuesday, October 24, 2000, for two hours, from 6:00 to
8:00; Wednesday, October 25, 2000, for two hours, from 6:00 to
8:00; Thursday, October 26, 2000, for two hours, from 6:00 to
8:00; Friday, October 27, 2000, for two hours, from 6:00 to
8:00; Monday, October 30, 2000, for one hour, from 6:00 to 7:00;
Tuesday, October 31, 2000, for two hours, from 6:00 to 8:00;
Wednesday, November 1, 2000, for two hours from 6:00 to 8:00;
Thursday, November 2, 2000, for two hours, from 6:00 to 8:00;
and Friday, November 3, 2000, for one hour, from 6:00 to 7:00.
On the third log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 6, 2000, to November 24, 2000: Monday, November 6, 2000, for three hours, from 6:00 to 9:00; and Tuesday, November 7, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period.
On the fourth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 27, 2000, to December 15, 2000: Wednesday, November 29, 2000, for three hours, from 6:00 to 9:00; Thursday, November 30, 2000, for three hours, from 6:00 to 9:00; Friday, December 1, 2000, for three hours, from 6:00 to 9:00; and Monday, December 4, 2000, for three hours, from 6:00
to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period.
On the fifth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 3, 2001, to January 12, 2001: Wednesday, January 3, 2001, for two hours, from 6:00 to 8:00; Thursday, January 4, 2001, for two hours, from 6:00 to 8:00; Friday, January 5, 2001, for two hours, from 6:00 to 8:00; Monday, January 8, 2001, for two and a half hours, from 6:00 to 8:30; Tuesday, January 9, 2001, for two and a half hours, from 6:00 to 8:30; Wednesday, January 10, 2001, for two and a half hours, from 6:00 to 8:30; Thursday, January 11, 2001, for two and a half hours, from 6:00 to 8:30; and Friday, January 12, 2001, for two hours, from 6:00 to 8:00.
On the sixth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 15, 2001, to February 2, 2001: Tuesday, January 16, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 17, 2001, for two hours, from 3:00 to 5:00; Thursday, January 18, 2001, for two hours, from 3:00 to 5:00; Monday, January 22, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 23, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 24, 2001, for two hours, from 3:00 to 5:00; Thursday, January 25, 2001, for two hours, from 3:00 to
5:00; Friday, January 26, 2001, for two hours, from 3:00 to
5:00; Monday, January 29, 2001, for two hours, from 3:00 to
5:00; Tuesday, January 30, 2001, for two hours, from 3:00 to
5:00; and Wednesday, January 31, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 1 and 2, 2001) during the period.
On the seventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 5, 2001, to February 16, 2001: Wednesday, February 7, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 8, 2001, for three and half hours, from 3:00 to 6:30; Friday, February 9, 2001, for four hours, from 3:00 to 7:00; Monday February 12, 2001, for one hour, from 3:00 to 4:00; Tuesday, February 13, 2001, for three and half hours, from 3:00 to 6:30; Wednesday, February 14, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 15, 2001, for three and half hours, from 3:00 to 6:30; and February 16, 2001, for a half hour, from 3:00 to 3:30. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 5 and 6, 2001) during the period.
On the eighth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 19, 2001, to March 2,
2001: Monday, February 19, 2001, for two hours, from 3:00 to
5:00; Tuesday, February 20, 2001, for two hours, from 3:00 to
5:00; Wednesday, February 21, 2001, for two hours, from 3:00 to
5:00; Thursday, February 22, 2001, for two hours, from 3:00 to
5:00; Friday, February 23, 2001, for one hour, from 3:00 to
4:00; Monday, February 26, 2001, for two hours, from 3:00 to
5:00; Tuesday, February 27, 2001, for two hours, from 3:00 to
5:00; Wednesday, February 28, 2001, for two hours, from 3:00 to
5:00; Thursday, March 1, 2001, for two hours, from 3:00 to 5:00;
and Friday, March 2, 2001, for one hour, from 3:00 to 4:00.
On the ninth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from March 5, 2001, to March 16, 2001: Monday, March 5, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, March 6, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, March 7, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, March 8, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, March 9, 2001, for an hour, from 3:00 to 4:00. It was noted on the log that S. S. was not provided any "services" the week of March 12, 2001, and that she was "hospitalized" for the last three days of that week.
On the tenth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 2, 2001, to April 20, 2001:
Monday, April 2, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 3, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, April 4, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, April 5, 2001, for an hour and a half,
from 3:00 to 4:30; Friday, April 6, 2001, for two hours, from
3:00 to 5:00; Monday, April 16, 2001, for two and a half hours,
from 2:30 to 5:00; Tuesday, April 17, 2001, for two hours, from
2:30 to 4:30; Wednesday, April 18, 2001, for two hours, from
2:30 to 4:30; Thursday, April 19, 2001, for two hours, from 2:30 to 4:30; and Friday, April 20, 2001, for two and a half hours, from 2:30 to 5:00. It was noted on the log that the week of April 9, 2001, was "spring break."
On the eleventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 23, 2001, to May 11, 2001: Monday, April 23, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 24, 2001, for two hours, from 3:00 to 5:00; Wednesday, April 25, 2001, for two hours, from 3:00 to 5:00; Thursday, April 26, 2001, for two hours, from 3:00 to 5:00; Friday, April 27, 2001, for two hours, from 3:00 to 5:00; Monday, April 30, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 1, 2001, for two hours, from 3:00 to 5:00; Monday, May 7, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 8, 2001, for two hours, from 3:00 to 5:00; Wednesday, May 9, 2001,
for two hours, from 3:00 to 5:00; Thursday, May 10, 2001, for
two hours, from 3:00 to 5:00; and Friday, May 11, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was "hospitalized" on the remaining regular school days (May 2, 3, and 4, 2001) during the period.
On the twelfth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from May 14, 2001, to May 25, 2001: Monday, May 14, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 15, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 16, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 17, 2001, for an hour and a half, from 3:00 to 4:30; Friday, May 18, 2001, for an hour and a half, from 3:00 to 4:30; Monday, May 21, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 22, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 23, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 24, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, May 25, 2001, for an hour and a half, from 3:00 to 4:30. On an area of the log where there were no printed words or lines was the following notation: "One hour planning." No date or times were given, nor was there any signature next to this notation.19
The evidentiary record also contains four Monthly Travel and Request for Reimbursement Forms (Travel Reimbursement
Forms) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.20
The first of these Travel Reimbursement Forms covered the period from September 25, 2000, to October 13, 2000, the same period covered by the first service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back (a round trip of 33.5 miles) on each of the days that, according to the first service log, she "served" S. S.21 No other travel was reflected on the form.
The second of these Travel Reimbursement Forms covered the period from January 15, 2001, to February 9, 2001. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the sixth service log, she represented she "served" S. S. She further claimed, on this Travel Reimbursement Form, that she made the same round trip on February 7, 8, and 9, 2001 (days that, on the seventh service log, she represented she "served"
S. S). No other travel was reflected on the form.
The third of these Travel Reimbursement Forms covered the period from February 19, 2001, to March 2, 2001, the same period covered by the eighth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on
the eighth service log, she represented she "served" S. S. No other travel was reflected on the form.
The fourth and last of these Travel Reimbursement Forms covered the period from March 5, 2001, to March 16, 2001, the same period covered by the ninth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the ninth service log, she represented she "served" S. S. No other travel was reflected on the form.
The evidentiary record also contains one H/H Service Log on which Ms. Washington "certif[ied]" that she "served" S.
S. (as S. S.'s H/H teacher) on September 18, 2000, for four hours, from 5:00 to 9:0022; September 20, 2000, for four hours, from 5:00 to 9:00; September 22, 2000, for four hours, from 5:00 to 9:00; September 24, 2000,23 for four hours, from 5:00 to 9:00; September 25, 2000, for four hours, from 5:00 to 9:00; and September 26, 2000, for four hours, from 5:00 to 9:00.24
There is no "Parent Signature" to the right of either the September 18, 21, 24, or 26, 2000, entry.
There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each of the other alleged dates of "service[]."
There is a notation on the log (together with an arrow) indicating that S. S. was "[r]e-assigned [to] Celestine
Baker" on the Thursday of the school week beginning Monday, September 25, 2000 (that is, on September 28, 2000).25
The administrator who signed the log was someone other than Ms. Slaga or Ms. Akre.
It was not until after the end of the school year that it "c[a]me to [Ms. Slaga's] attention that Ms. Washington had some service logs[26] related to [S. S.]."
Ms. Slaga found it "very unusual to see" an H/H Service Log submitted by a Program Specialist.
At the suggestion of Susan Ranew, the School Board's Director of Personnel, Ms. Slaga visited J. S. and showed her the service logs in question.
J. S. told Ms. Slaga, after examining the logs, that "no services" were provided on some of the alleged dates of "service[]," including dates on which S. S. "was in the hospital in West Palm Beach." J. S. added that not all of the signatures on the "Parent Signature" lines on the logs were hers.
When Ms. Slaga returned from her visit with J. S., she "pulled out all of [S. S.'s] logs," including those submitted by Respondent, and reviewed them.
Ms. Slaga noticed that "some of the dates that were on [Respondent's] log were the same dates that Ms. Washington had [claimed] that she [had] provided services to [S. S.]."27 These were dates on which, according to what J. S. "had already
shared" with Ms. Slaga, S. S. "was in the hospital in West Palm [Beach]."
After obtaining information from St. Mary's Medical Center concerning S. S.'s hospitalizations, Ms. Slaga re- examined the service logs and confirmed "that there were days of service indicated by both Ms. Washington and [Respondent] that [S. S] had been in the hospital."
Ms. Slaga "turned the information over to the [School Board's] Personnel [Office]."
Russell Anderson, the School Board's Assistant Superintendent for Human Resources, after consulting with the School Board's Superintendent of Schools, called in the law firm of Richeson and Associates to engage in "formal fact finding."
During the "formal fact finding," Respondent was provided the opportunity to give "a statement of her side of the story." Through her attorney, she declined to give such a statement.28
At some point in time, Respondent telephoned S. S. and told S. S., if S. S. "were contacted by the School [Board] regarding [Respondent's] services," to lie and say that Respondent "came every day."29
Ms. Washington, unlike Respondent, did give a statement, which "was eventually turned into an affidavit."
In her affidavit (which was received into evidence as Respondent's Exhibit 3, over the School Board's objection), after discussing the Program and procedures relating to the completion and approval of H/H Service Logs and Travel Reimbursement Forms, Ms. Washington went on to describe those "activities . . . related to [S. S.'s] involvement in the hospitalized/homebound program" in which she claimed she engaged on the dates of "service[]" indicated on her "service logs for the time periods of 8/22/00-8/30/00; 8/31/00-9/13/00; and 9/18/00-9/27/00."
Some of the "activities" she described did not involve "actual student contact," such as "visiting different locations in St. Lucie and Martin Counties . . . in attempts to acquire a needed adapter for [an] Apple laptop computer so that [she] could provide the laptop to S. S." and attending "meetings at Port St. Lucie High School [S. S.'s home school at the time] concerning providing hospitalized/homebound services to [S. S.]."
Ms. Washington further stated that, "[o]n 8/30/00, [she] went the [S. S.'s] home and installed a desktop computer and password" and that "[t]his desktop computer had the computer program 'Plato' installed on it so that [S. S.] could utilize computerized instruction." Ms. Washington added that, "since [she] had Plato installed on [her] laptop, [she] was able to
monitor [S. S.] while [S. S.] worked on the desktop computer." Ms. Washington went on to claim that she did such "monitor[ing]" on the following dates: August 31, 2000; September 2, 2000;
September 6, 2000; September 7, 2000; September 8, 2000;
September 11, 2000; September 12, 2000; September 13, 2000;
September 18, 2000; September 20, 2000; September 22, 2000;
September 24, 2000; September 25, 2000; and September 26, 2000. These representations were false. There was no "computerized instruction." There was no "monitoring." Indeed, there was not even a "desktop computer" set up in S. S.'s home. These were all things that Ms. Washington had made up.30
Having described in the preceding portions of her affidavit the non-"actual student contact" activities in which she claimed to have engaged on the dates of "service[]" reported on the service logs she submitted, Ms. Washington made the following self-serving statements in paragraphs 21, 22 and 23 of the affidavit:31
I wrote the training manual for teachers in relation to the ESE Hospitalized/Homebound Program. Although page 9 of this training manual (#6) states "you will be paid for actual student contact hours" this does not prevent a hospitalized/homebound teacher or program specialist from submitting time on their service log for any activity related to a student in the hospitalized/homebound program. The Training Manual does not address all possible scenarios and is only intended to be a guide for teachers. The
reference on page 9 of this training manual, which states "you will be paid for actual student contact hours" refers only to teachers/program specialists being reimbursed for mileage.
I believe that it is proper for a teacher or program specialist to record on their service log any time that the teacher or program specialist spends performing any activity related to a student in the hospitalized/homebound program if that activity is performed outside the teacher's or program specialist's normal workday.
Page 8 of this training manual provides that in order for teachers and program specialists to claim payment for 1 hour of pre-planning, actual attendance at a school based meeting[] is required. However, I believe that a teacher or program specialist is allowed to perform this pre-planning at [his or her] home, and that any time that the teacher or program specialist spends performing any activity at a school (outside [his or her] normal work hours) in relation to a student in the hospitalized/homebound program may be recorded on the service log. I performed the pre-planning for [S. S.] while I was in my office, during normal working hours.
By mid-October of 2001, Ms. Washington had been suspended from her Program Specialist position and Ms. Jones had been assigned to take her place. While Ms. Jones was "in training," Mr. Tomlinson was asked to review and sign the completed H/H Service Logs submitted by the H/H teachers.
Among the completed service logs Mr. Tomlinson reviewed was one submitted by Respondent, on which Respondent "certif[ied]" (by her signature) that she "served" J. A., a
hospitalized/homebound student to whom she had been assigned, on the following dates and times during the period from October 1, 2001, to October 16, 2001: Monday, October 1, 2001, for two
hours, from 3:15 to 5:15; Tuesday, October 2, 2001, for two and
a half hours, from 3:15 to 5:45; Wednesday, October 3, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 4, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 5, 2001, for two and a half hours, from 3:15 to 5:45; Monday, October 8, 2001, for two and a half hours, from 3:15 to 5:45; Tuesday, October 9, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 10, 2001, for two and a half
hours, from 3:15 to 5:45; Thursday, October 11, 2001, for two
and a half hours, from 3:15 to 5:45; Friday, October 12, 2001,
for two hours, from 3:15 to 5:15; Monday, October 15, 2001, for
two hours, from 3:15 to 5:15; and Tuesday, October 16, 2001, for two and a half hours, from 3:15 to 5:45.
When Mr. Tomlinson received the log, there was a signature purporting to be that of J. A.'s mother on the "Parent Signature" line to the right of each date of "service[]" entered on the log.32 These signatures were forgeries (as evidenced by the misspelling, in each case, of J. A.'s mother's last name33). They had been placed on the log by Respondent, who did so because she knew that there needed to be a signature on the "Parent Signature" line next to each date of "service[]" in
order for her to get paid for the hours of "service[]" she reported having provided on that date.34
Respondent was subsequently, like Ms. Washington, suspended without pay and recommended for termination.
No showing has been made that, in being suspended without pay and recommended for termination, Respondent was treated differently and less favorably than any similarly situated teacher suspected by the School Board of having deceptively falsified documents for his or her own personal gain;35 nor has it been shown that she has been targeted for prosecution for any invidious or unlawful reason, such as her race.36
CONCLUSIONS OF LAW
"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 (2001).
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. Section 230.23(5)(f), Florida Statutes (2001)("The school board, acting as a board, shall exercise all powers and perform all duties listed below: PERSONNEL.--. . . . [P]rovide for the . . .
suspension, and dismissal of employees . . . ."); and Section 231.001, Florida Statutes (2001)("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.").
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes (2002), "with respect to all employees of the school district." Section 447.203(2), Florida Statutes (2002).
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," provided it exercises these powers in a manner that is consistent with the requirements of law. Section 447.209, Florida Statutes (2002).
Professional service contract teachers employed by a district school board, like Respondent, may be dismissed during the term of their contract in accordance with the provisions of Subsection (6)(a) of Section 231.36, Florida Statutes (2001), "for just cause as provided in paragraph (1)(a)" of the statute, which provides, in pertinent part, as follows:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct
in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
The, "but is not limited to," language used by the Legislature "in paragraph (1)(a)" makes abundantly clear that the provision's list of things constituting "just cause" is non- exclusive and that other wrongdoing, such as the violation of a district school board rule, may also constitute "just cause" thereunder. See Dietz v. Lee County School Board, 647 So. 2d 217, 219 (Fla. 1994)(Blue, J., specially concurring)("We assume that drunkenness and immorality, which are not included in the non-exclusive list of sins [set forth in Subsection (1)(a) of Section 231.36, Florida Statutes (2001)] constituting just cause, would also be grounds for dismissal. . . . In amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion to determine when a teacher may be dismissed during the contract term. . . . I agree with the majority--that the legislature left that determination to the respective wisdom of each school board by providing no definite parameters to the term 'just cause.'"); and Miami-Dade County School Board v. Wojcicki, No. 01-4247, 2002 WL 31125102 (Fla. DOAH 2002)(Recommended
Order)(violation of district school board rule prohibiting
corporal punishment constituted "'just cause,' as defined in Subsection (1)(a) of Section 231.36, Florida Statutes, to dismiss [professional service contract teacher] pursuant to Subsection (6)(a) of the statute.").
"Misconduct in office" is "defined by rule of the State Board of Education," specifically Subsection (3) of Rule 6B-4.009, Florida Administrative Code, as follows:
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.
The Code of Ethics of the Education Profession in Florida (set forth in Rule 6B-1.001, Florida Administrative Code) provides, in pertinent part, as follows:
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
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.
The Principles of Professional Conduct for the Education Profession in Florida (set forth in Rule 6B-1.006, Florida Administrative Code) include the following provisions, among others:
Obligation to the student requires that the individual:
* * *
(h) Shall not exploit a relationship with a student for personal gain or advantage.
* * *
Obligation to the public requires that the individual:
* * *
(c) Shall not use institutional privileges for personal gain or advantage.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information on any document in connection with professional activities.
"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." See Purvis v. Marion County School Board, 766 So. 2d 492 (Fla. 5th DCA 2000); 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); and School Board of Miami-Dade County v. Paulk, No. 99-2309, 2000 WL 675294 (Fla. DOAH 2000)(Recommended Order).
"Under Florida law, a [district] 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."37 Sublett v. District School Board of Sumter County, 617 So. 2d at 377.
Where the employee is a professional service contract teacher, pursuant to Subsection (6)(a)1 and 2 of Section 231.36, Florida Statutes (2001), the hearing may be conducted either by the district school board itself or by a Division Administrative Law Judge (who, following the hearing, makes a recommendation to the district school board).
The teacher 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, or policy] 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).
Any adverse action taken against the teacher may be based only upon the conduct specifically alleged in the written notice of specific charges. See Texton v. Hancock, 359 So. 2d at 897 n.2; United Insurance Company of America v. Department of Insurance, 793 So. 2d 1182 (Fla. 1st DCA 2001); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the "formal hearing," the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the teacher is a member provides otherwise38 (which the collective bargaining agreement between the School Board and Respondent's collective bargaining representative, received into evidence as Respondent's Exhibit 4, does not), 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."); and 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.").
The Statement of Charges served on Respondent in the instant case alleges that she should be terminated because, in violation of the Principles of Professional Conduct for the Education Profession in Florida cited above and School Board
Rules 3.56(3)(b)2, 4, 19, and 29, she engaged in deceptive and fraudulent practices in connection with her reporting of "services" provided two hospitalized/homebound students in the Program, S. S. and J. A.
The School Board proved by a preponderance of the evidence, as alleged in the Statement of Charges, that Respondent knowingly overstated, on service logs she submitted during the 2000-01 school year, the number of hours she was with
S. S., providing "services," in an effort (which proved successful) to defraud the School Board into paying her for "services" she did not provide, and that, in addition, she forged the signatures of J. A.'s mother on the service log covering the period from October 1, 2001, to October 16, 2001, in an effort (which proved unsuccessful) to mislead the School Board into believing that the mother had verified, by signing her name next to the date and time entries on the log, that such entries were accurate (which verification was a prerequisite to Respondent getting paid for the time reflected on the log).39
This conduct violated the Principles of Professional Conduct for the Education Profession in Florida (specifically, Subsections (2) and (3) of Rule 6B-1.001, Florida Administrative Code, and Subsections (5)(a) and (h) of Rule 6B-1.006, Florida Administrative Code40) and School Board Rules 3.56(3)(b)2, 4, 19, and 29, and has necessarily impaired her effectiveness as a
teacher because it casts serious doubt on her honesty and trustworthiness, which are essential requirements of any teaching position. Compare with Purvis v. Marion County School Board, 766 So. 2d at 498 ("Here, Purvis lied under oath and resisted arrest. This is a level of misconduct which would support the inference that Purvis' effectiveness as a teacher has been impaired, even though no parent, student or co-worker was called as a witness to say so. The fact that Purvis was willing to lie under oath is particularly damaging to Purvis' effectiveness as a teacher and coach, since it harms his credibility in his dealings with others. The hearing officer's reliance on his teaching and coaching skills and the lack of public scandal are irrelevant to the trust issues articulated by the School Board."); and Broward County School Board v. Sapp, 2002 WL 31455675 ("[A]s a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion.
Yet, as Sapp admitted at hearing, if a student athlete had engaged in conduct similar to his own, that student would be dismissed from the athletic program and probably expelled from school. Obviously, having committed acts that would subject a student to severe repercussions, Sapp's effectiveness as a role
model has been seriously compromised----perhaps (and hopefully) not irreparably, but grievously nonetheless.").
Having proven that Respondent engaged in this conduct, the School Board has established that there is "just cause," as defined to Subsection (1)(a) of Section 231.36, Florida Statutes, to dismiss Respondent pursuant to Subsection (6)(a) of the statute.41 Compare with School Board of Lake County v. Osteen, No. 88-2029, 1988 WL 617899 (Fla. DOAH 1988)(Recommended Order)(dismissal recommended where teacher "failed to maintain honesty in her professional dealings by falsifying her time records, her planning records and her attendance records regarding homebound instruction to [a student]").
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for having engaged in the deceptive and fraudulent conduct described above.
DONE AND ENTERED this 31st day of December, 2002, 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 31st day of December, 2002.
ENDNOTES
1/ Although counsel for Respondent may have had "concerns" about "going forward with th[is] administrative matter prior to adjudication of Respondent's criminal case," the undersigned's placing Respondent in such a situation did not violate her constitutional rights. See Hinman v. Department of Highway Safety and Motor Vehicles, 820 So. 2d 315, 317 (Fla. 5th DCA 2001)("We conclude that no Fifth Amendment right was involved in the administrative hearing. Thus, a person being subsequently prosecuted for DUI has no right to stay the license suspension hearing."); U. S. v. Kordel, 90 S.Ct. 763, 769 (1970)("[W]e cannot agree that the respondents have made out either a violation of due process or a departure from proper standards in the administration of justice requiring the exercise of our supervisory power. The public interest in protecting consumers throughout the Nation from misbranded drugs requires prompt action by the agency charged with responsibility for administration of the federal food and drug laws. But a rational decision whether to proceed criminally against those responsible for the misbranding may have to await consideration of a fuller record than that before the agency at the time of the civil seizure of the offending products. It would stultify enforcement of federal law to require a governmental agency such as the FDA invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a
criminal trial."); Peiffer v. Lebanon School District, 848 F.2d 44, 46 (3d Cir. 1988)("It is, of course, clear that there was no constitutional requirement that the board grant him a postponement of the [administrative] hearing [on whether his dismissal was warranted] pending disposition of the criminal charges."); Hoover v. Knight, 678 F.2d 578, 582 (5th Cir.
1982)("Finally, it should be noted that the police department had a strong interest in the prompt resolution of the charges against the appellee. Even though she was on suspension and the hearing examiner's discretion might better have been used in granting a continuance, a balancing of the police department's interest in the prompt resolution of the case against the appellee's interest in litigating her cause without risk to her position leads us to conclude that this controversy does not rise to the level of an impermissible burden on the exercise of her constitutional rights."); Arthurs v. Stern, 560 F.2d 477,
480 (1st Cir. 1977)("Given the strong public interest in promptly disciplining errant physicians taken as a class, we see no reason to hold that the board was or could be constitutionally required to stay its proceedings until the criminal prosecutions against any particular doctor were over."); Closs v. Goose Creek Consolidated Independent School District, 874 S.W.2d 859, 874 (Tex. App. 1994)("Closs contends that his due process rights were violated because the hearing was held while he was still under criminal indictment, thus he could not testify on his own behalf for fear of waiving his Fifth Amendment privilege. Although Closs was in a predicament because of the parallel criminal and administrative proceedings, this does not amount to a denial of due process by the school board. . . . Closs always had a choice, and indeed exercised that choice, regarding the assertion of his Fifth Amendment rights. He was not forced to waive his rights or else face automatic termination from his job with the school district."); and Rosenberg v. Board of Education of School District No. 1, Denver Public Schools, 710 P.2d 1095, 1101 n.11 (Colo. 1985)("There is no right to a continuance of administrative proceedings pending the outcome of parallel criminal proceedings.").
2/ See Eller Media Co. v. Serrano, 761 So. 2d 464, 466 (Fla. 3d DCA 2000)("Because Garcia has yet to formally invoke his Fifth Amendment privilege, we find that the trial court [in this civil action] did not abuse its discretion in denying the requested stay [on the ground that the stay request was premature]."); and Rappaport v. Levy, 696 So. 2d 526, 527 (Fla. 3d DCA 1997)("Because respondent has not yet invoked his Fifth Amendment privilege, we think the trial court [in this civil
action] was premature in entering the foregoing order [providing that the trial would be continued indefinitely].").
3/ At the final hearing, the parties clarified this stipulation by agreeing that Respondent, in fact, "was paid for the hours reflected on the[se] service logs."
4/ In her position statement that was included in the parties' Joint Pre-Hearing Stipulation, Respondent asserted that, "[w]hile it is undisputed that Respondent included non-contact hours on her service logs, the facts will show that these entries were for work Respondent did on behalf of a homebound student" and that "Respondent's immediate supervisor authorized Respondent to include these non-contact hours on Respondent's service logs."
5/ The undersigned has accepted these factual stipulations, except to the extent that they reflect that Respondent was assigned to provide instruction to J. A. during the 2000-01 school year, as opposed to the 2001-02 school year. See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy.'"); and EGYB, Inc. v. First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties.").
6/ Students who are hospitalized in another county (outside of St. Lucie County) do not receive services during their out-of- county hospitalization.
7/ H/H teachers are permitted to round these times to the nearest fifteen minutes.
8/ The Program is administratively located in the School Board's Department of Exceptional Student Education.
9/ An H/H teacher may be disciplined for engaging in conduct that the teacher knew or should have known was in violation of
an established Program or School Board policy or otherwise contrary to the School Board's interests, notwithstanding whatever the teacher may have been told by the Program Specialist before the teacher embarked upon such a course of action. See Temple University of Commonwealth System of Higher Education v. Unemployment Compensation Board of Review, 772 A.2d 416, 417-19 (Pa. 2001)("Temple argues that, contrary to the Commonwealth Court's findings, Mr. Stefaniak's belief that his supervisor had the authority to authorize payment for hours not worked does not establish good cause for his misconduct in applying for and accepting payment for hours not worked. We agree and therefore reverse. . . . During the time period in question, Mr. Stefaniak's manager told him to change his time sheet in order to be paid for several hours that he did not work. Mr. Stefaniak's manager informed Mr. Stefaniak that he was being rewarded for being a good employee, and Mr. Stefaniak believed that his manager had the authority to tell him to make the changes. Accordingly, Mr. Stefaniak changed his time sheets to indicate that he was working during time periods when he actually was not. Mr. Stefaniak's manager then authorized payment for those hours by submitting the fraudulent time sheets to Temple. Temple had a policy stating that the stealing or deliberate destruction of University property or the property of other employees, patients, clients, students or visitors would result in termination. Based on this policy and Mr. Stefaniak's submission of fraudulent time sheets, Temple fired Mr. Stefaniak on March 10, 1998. Temple also fired Mr. Stefaniak's manager and several of his co-workers. . . . Mr. Stefaniak's mistaken belief that his supervisor could authorize extra pay for hours not worked did not constitute a valid justification for his misconduct. . . . We therefore conclude that the Commonwealth Court erred in finding that Mr. Stefaniak had good cause to steal from Temple."); Kazensky v. City of Merced, 76 Cal.Rptr.2d 356, 373 (Cal. App. 1998)("Respondents argued to the Board that if Kazensky was a 'supervisor,' then Mileur committed no misconduct because Kazensky permitted Mileur to engage in that conduct and therefore Mileur's conduct was 'authorized.' Perhaps this argument was the impetus for the Personnel Board's finding that Kazensky was not a supervisor. But a 'supervisor' cannot authorize misconduct. A supervisor could not authorize the theft of City time any more than he or she could authorize the theft of City equipment or tools. If an employee expressed an admiration for an expensive set of City-owned tools, for example, a supervisor could not properly say, 'Well then take them home, they're yours, a gift from the City.'"); City of Picayune v. Mississippi Employment Security Commission, 525 So. 2d 1330, 1332 (Miss. 1988)("Numerous directives had been
published to all employees of the police department prohibiting the activities in which Mrs. Raper engaged, among them is one which . . . was signed by Richard B. Martin, the Police Chief, and among other directives announcing the same rule was one from Lorance Lumpkin, who allegedly gave Mrs. Raper permission to violate the rule. All we can say concerning this is that we would then have two people guilty of misconduct instead of one."); Dempsey v. Unemployment Compensation Board of Review,
499 A.2d 740, 742 (Pa. Cmwlth. Ct. 1985)("[A]n employing institution has a right to expect that employees in responsible positions will report fraudulent conduct and not continue it."); and Brode v. Unemployment Compensation Board of Review, 470 A.2d 200, 202-03 (Pa. Cmwlth. Ct. 1984)("Although not strictly guilty of falsification of records, the employees' knowing acceptance of overpayment rendered them participants in the scheme, and possibly guilty of theft in violation of Plant Rule No. 5. . . .
The employees seek to justify their misconduct by asserting that they believed the inflated compensation to be proper because the supervisor had told them that he would 'take care' of them, suggesting that he had authority to provide the extra compensation. However, an employee's action upon a mistaken belief of legal entitlement is not a justification for violation of an employer's rule. . . . Therefore, the employees' argument falls short of establishing good cause for their misconduct.").
10/ Specifying for H/H teachers those things for which they will be paid also informs them, at the same time, of what they will not be paid for. Cf. PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("The express mention of one thing implies the exclusion of another."); Harrell v. Durrance, 9 Fla.
490 (Fla. 1861)("In the bill of sale, as we have already seen, the parties expressed the marks and brands of the cattle. The maxim expressio unius est exclusio alterius, (the express mention of one thing implies the exclusion of another,) is peculiarly applicable here. The presumption is, that having expressed the marks and brands of some, they have expressed all which they intended."); and U.S. ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir. 1991)("As a preliminary matter, we find that the methods of 'public disclosure' set forth in section 3730(e)(4)(A) are exclusive of the types of public disclosure that would defeat jurisdiction under that section. The list of methods of 'public disclosure' is specific and is not qualified by words that would indicate that they are only examples of the types of 'public disclosure' to which the jurisdictional bar would apply. Congress could easily have used 'such as' or 'for example' to indicate that its list was not exhaustive. Because it did not, however, we will not give the
statute a broader effect than that which appears in its plain language.").
11/ Respondent testified that she became an H/H teacher "to earn extra money," not to "just to do extra work and not be compensated for it."
12/ It is not clear from the evidentiary record exactly when Respondent started in the Program. It was either 1999 or earlier. (Respondent's attorney, during Respondent's testimony, when Respondent was being cross-examined by the School Board's attorney, asserted that "[t]he first year [Respondent] taught homebound was 98-99." This assertion, however, does not constitute evidence upon which a finding of fact may be based.
See State v. Gosier, 737 So. 2d 1121, 1122 n.1 (Fla. 4th DCA 1999)("That is all the evidence that could have been relied upon by the trial judge to justify a departure sentence. Although defense counsel made a number of statements concerning the defendant, the defendant's life, the crime, and supposed remorse, those statements do not constitute evidence."); Bassette v. Health Management Resources Corporation, 661 So. 2d 317, 319 (Fla. 2d DCA 1995)("In the absence of a stipulation, a trial court may not consider as fact an attorney's unsworn statements."); Sabina v. Dahlia Corporation, 650 So. 2d 96, 99 (Fla. 2d DCA 1995)("[T]his statement by Sabina's attorney does not constitute competent evidence before the trial court in this matter because it was an unsworn statement of a relevant fact in issue. In the absence of a stipulation . . . 'a trial court cannot make a factual determination based on an attorney's unsworn statements' and 'is precluded from considering as fact unproven statements documented only by an attorney.'"); and Leon Shaffer Golnick Advertising v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982)("It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.").)
13/ This finding of fact is based upon the testimony of J. S., who testified with apparent candor and sincerity at the final hearing.
14/ Although S. S. received A's in algebra during the 2000-01 school year (when Respondent was her H/H teacher), the following school year she was taken out of her tenth grade mathematics class and "put back in" algebra "because [she] didn't know the material" that she was supposed to have learned in her algebra course the year before (during ninth grade).
15/ "Actions manifest intent." State v Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982); see also Swanson v. State, 713 So. 2d 1097, 1101 (Fla. 4th DCA 1998)("Appellant's actions are sufficient to show intent to participate."); G. K. D. v. State,
391 So. 2d 327, 328-29 (Fla. 1st DCA 1980)("Appellant testified that he did not intend to break the window, but the record indicates that he did willfully kick the window, and he may be presumed to have intended the probable consequences of his actions."); and State v. West, 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("[Intent] is not usually the subject of direct proof. It is inferred from the acts of the parties and from the surrounding circumstances. . . . Being a state of mind, intent is usually a question of fact to be determined by the trier of fact. The trier of fact has the opportunity to observe the witnesses. From that observation, the trier of fact may determine the believability of that witness and the weight to be given his testimony. The demeanor of the witness, his frankness, or lack of frankness, his intelligence, his interest in the outcome of the case, and the reasonableness of the testimony presented, in the light of all the evidence in the case, are but a few of those factors which may play a part in making that determination.").
16/ The undersigned has rejected as unworthy of belief Respondent's testimony to the contrary.
17/ The evidence is insufficient to establish that any signature on any "Parent Signature" line is a forgery which was the work of Respondent's. J. S. testified that she was unable to tell for sure, by looking at the signatures on the logs, whether or not any were not hers. At one point, she suggested that a "handwriting expert [was] need[ed]" to determine the genuineness of the signatures because she was unable to make such a determination based upon her visual inspection of the signatures (a suggestion that neither party followed up on).
J. S. did testify that there were some signatures that "c[ould]n't be [hers]" (even though they may have looked like hers) because
S. S. was hospitalized at St. Mary's Medical Center on the service dates to the left of these signatures; however, in
coming to this conclusion, J. S. overlooked the possibility that these signatures could be among those that, at Respondent's request (as described above), J. S. placed on the "Parent Signature" lines that, at the time of her signing her name, had no corresponding service date entries.
18/ Although none of the logs contained any notation as to whether the times indicated thereon were "a.m." or "p.m.," it is reasonable to believe, since Respondent was a "contracted teacher" whose schedule did not permit her to provide hospitalized/homebound services during the regular school day, that the times she entered on the logs were in the afternoon and evening, after the end of the regular school day.
19/ Respondent evidently recognized that there was a difference between time spent "serv[ing]" a student and "planning" time and that, therefore, "planning time" could not be reported, on the H/H Service Log, as time the "student was served."
20/ It is unclear from the evidence whether these are all of the Travel Reimbursement Forms that Respondent submitted during this time period.
21/ In response to the questioning of the School Board's attorney on cross-examination, Respondent conceded that she had not been at S. S.'s home on October 2, 3, and 4, 2000, but maintained that, during the time that she claimed on the first service log to have "served" S. S. on these days (from 9:00 to 11:00 on each day, hours that were, in Respondent's own words, "pretty late" for S. S., "given [S. S.'s] illness and her ability to . . . function"), she (Respondent) was doing something (exactly what she could not recall) related to her assignment as S. S.'s H/H teacher for which she was told by Ms. Washington she could be compensated. Respondent's story that the service log entries for October 2, 3, and 4, 2000, were intended to represent compensable "non-contact hours" (as opposed to "actual student contact hours"), which story is flimsy to begin with, falls entirely apart upon examination of the Travel Reimbursement Form covering the period including October 2, 3, and 4, 2000, on which Respondent claimed to have traveled to S. S.'s home on each of these days.
22/ Although Ms. Washington did not so specify on the service logs, these times are, presumably, p.m., not a.m.
23/ On the service log, Ms. Washington incorrectly identified September 20, 2000, as a Tuesday (it was a Wednesday), September
21, 2000, as a Wednesday (it was a Thursday), September 22, 2000, as a Thursday (it was a Friday), and September 24, 2000, as a Friday (it was a Sunday).
24/ As noted above, on her first service log, Respondent claimed that she too "served" S. S. on September 25 and 26, 2000, and did so during a portion of the time that, according to Ms. Washington's log, "services were [also] provided by [Ms.
Washington]": from 8:00 to 9:00 on September 25, 2000, and from
7:30 to 9:00 on September 26, 2000.
25/ As noted above, Respondent's first service log reflects that she began "serv[ing]" S. S. on September 25, 2000.
26/ It appears that there were other logs relating to S. S., in addition to the one that is part of the evidentiary record in this case, that Ms. Washington submitted.
27/ It is "strange" to have "two teachers out there at the same time providing services to a student."
28/ "Witnesses may be impeached by their previous failure to state a fact in circumstances where that fact naturally would have been asserted." Raupp v. State, 678 So. 2d 1358, 1360 (Fla. 5th DCA 1996); see also Atlas v. Atlas, 708 So. 2d 296,
299 (Fla. 4th DCA 1998)("Atlas not only failed to present evidence of his inability to pay the purge amount, but also invoked the Fifth Amendment concerning his financial status and refused to testify as to the content of his financial affidavit. The trial court could have properly drawn an adverse inference from this invocation that would further support a finding that Atlas, who has continuously fought payment of his child support since 1990, had the ability to pay the purge amount ordered."); Fraser v. Security and Investment Corporation, 615 So. 2d 841, 841-42 (Fla. 4th DCA 1993)("At a pretrial deposition, Fraser, faced with a claim of civil theft and not yet having obtained counsel, refused to answer questions, asserting his Fifth Amendment privilege against self-incrimination. At a subsequent deposition, having obtained counsel, Fraser abandoned his self- incrimination privilege. His motion in limine to prevent disclosure of the earlier invocation of the privilege was denied and at trial the jury learned that Fraser had invoked the Fifth Amendment. The first issue on appeal is whether this was reversible error. We hold that it was not."); Holmes v. State,
565 So. 2d 824, 825 (Fla. 4th DCA 1990)("Failure to present an alibi at the earliest time possible certainly has a reflection on the credibility of both the witness and the alibi."); Reaser
v. State, 356 So. 2d 891, 892 (Fla. 3d DCA 1978)("Defendant should have known he was likely to be charged with a crime, and it is reasonable to believe that one who fears he is about to be charged with a crime committed by another would seek to exonerate himself as quickly as possible by volunteering exculpatory information to the police. A defendant's silence in such circumstances can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is inconsistent with his earlier silence."); Harrison v. Wille, 132 F.3d 679, 682-83 (11th Cir. 1998)("[A] public employee cannot be terminated solely for the exercise of his Fifth Amendment rights. . . . Considered along with other evidence, however, an adverse inference may be drawn from an employee's exercise of his Fifth Amendment right to silence."); Hoover v. Knight, 678 F.2d at 582 n.1 ("We note that the hearing examiner [in the administrative hearing below] would not be constitutionally forbidden from drawing adverse inferences from an invocation of the privilege against self-incrimination."); and Broward County School Board v. Sapp, No. 01-3803, 2002 WL 31455675 (Fla. DOAH 2002)(Recommended Order)("Making matters worse for Sapp is that he remained silent even when asked by the principal on the afternoon of Friday, February 23, 2001, about suspicious activity in the media center the night before. Sapp now concedes that it was a 'mistake' not to tell the Mr. Traeger the supposedly exculpatory truth that day, and clearly it was but
it was more than that. If Sapp were innocent as he now claims, common sense teaches that he would have revealed everything to Mr. Traeger then and there. Sapp's silence at this point is not only inconsistent with innocence but also circumstantial evidence of guilt; the reasonable inference is that he was covering up a known wrong."). It could be argued that Respondent's failure to take advantage of the opportunity she was given to tell "her side of the story" during the "formal fact-finding," before any disciplinary action was initiated against her, is evidence that the exculpatory testimony she gave at hearing was recently contrived. It is unnecessary, however, to draw such an adverse inference from Respondent's silence during the "formal fact-finding," and therefore the undersigned will not do so, since, even if Respondent's pre-disciplinary action silence is disregarded, the contrived nature of her exculpatory testimony is apparent. Compare with S.E.C. v. Tome, 638 F. Supp. 629, 631 (S.D. N.Y. 1986)("The authorities cited below would have fully justified drawing an adverse inference against Tome from his assertion of the privilege against self- incrimination herein. In the circumstances presented, however, it is unnecessary to utilize the inference to establish liability. Even if needed to establish liability, it would have
been merely one inference among a number of evidentiary factors considered by this Court in reaching its conclusions. Tome's liability herein has been established by a preponderance of the credible evidence, without regard to the adverse inference.").
29/ This finding of fact is based upon the testimony of S. S., who, like her mother and unlike Respondent, was a credible witness, so credible that the undersigned has no doubt that she accurately recounted the events about which she testified. When Respondent took the stand to testify on her own behalf, she testified that this testimony given by S. S. was not true, but, when asked by her attorney, could not offer any possible reason "why [S. S.] would say such a thing." The only reason the undersigned can fathom for S. S. having given this testimony was her desire to tell the truth. The undersigned, therefore, has found that, consistent with S. S.'s disinterested testimony, and contrary to Respondent's self-serving testimony, Respondent did ask S. S. to lie about the frequency of Respondent's visits.
That Respondent did so is compelling evidence of her guilty knowledge. See Vaccaro v. State, 11 So. 2d 186, 188 (Fla. 1943)("In our consideration of this case we are justified in considering, as the jury was, the . . .[appellants'] attempt to
intimidate a State witness."); Coronado v. State, 654 So. 2d
1267, 1270 (Fla. 2d DCA 1995)("Evidence of threats made by a defendant or with a defendant's knowledge is relevant to an attempt to suborn perjury since it indicates a desire to evade prosecution and is evidence of consciousness of guilt."); Quarrells v. State, 641 So. 2d 490, 491 (Fla. 5th DCA 1994)("Reed's testimony that Quarrells personally attempted to
influence him to testify falsely was admissible as substantive evidence of Quarrells' guilt."); Knotts v. State, 533 So. 2d 826, 827 (Fla. 1st DCA 1988)("[W]e disagree with appellant's contention that the lower court's admission of certain threats and offers of gifts made by appellant to others following his arrest for the instant offense was erroneous. Such testimony was clearly relevant in that it related to appellant's attempts to suborn perjury."); Manuel v. State, 524 So. 2d 734, 735 (Fla. 1st DCA 1988)("If a third person's attempt to influence a witness is admissible to prove the defendant's guilt, it naturally follows that such an attempt by the defendant himself would be admissible."); Brown v. State, 391 So. 2d 729, 730 (Fla. 3d DCA 1980)("Evidence of a defendant's acts or statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt."); and Ballard v. State, 494 S.E.2d 644, 645 (Ga. 1998)("Ballard's girlfriend testified that Ballard threatened to beat her if she did not lie to police and tell them she had walked Ballard to the bus stop
after the shooting. This evidence was admissible to show Ballard's consciousness of guilt and, therefore, the trial court did not err in admitting it."). (Asking S. S. to lie in an effort to prevent the School Board from finding out about Respondent's intentional falsification of the service logs she submitted, and denying under oath that she had done so, in and of themselves, constitute serious wrongdoing; however, because Respondent has not been charged with such wrongdoing, the School Board, in the instant case, can neither punish Respondent for having committed these acts, nor take such misconduct into consideration in determining the severity of the punishment Respondent should receive for the misconduct that has been charged and proven. See Texton v. Hancock, 359 So. 2d 895, 897
n.2 (Fla. 1st DCA 1978)("There was one finding of more serious conduct, that Ms. Texton had tried to intimidate witnesses from testifying against her. This finding, however, had no predicate in the charges filed against her. Such a finding, in the absence of notice, may not be a lawful basis for discharge."); and Mills v. Callahan, No. 90-2307, 1991 WL 833059 (Fla. DOAH 1991)(Recommended Order)("Misconduct not charged cannot be the basis for suspension or termination of a teacher, even where the uncharged misconduct is proved at the hearing."); see also In re: Davey, 645 So. 2d 398, 405 (Fla. 1994)("[O]nly where lack of candor is formally charged and proven may it be used as a basis for removal or reprimand" of a judge.);and Bernal v. Department of Professional Regulation, Board of Medicine, 517 So. 2d 113,
115 (Fla. 3d DCA 1987), approved, 531 So. 2d 967 (Fla. 1988)(disciplinary action against licensee may not be increased based upon licensee's "alleged lack of candor in his testimony before the hearing officer[,] . . . an offense with which he was not charged"; "one's conduct in defending an action against him may not be the subject of an increased penalty if he is nevertheless found guilty of the substantive crime charged."); but see Jimenez v. Department of Professional Regulation, Board of Medicine, 556 So. 2d 1219, 1220-21 (Fla. 4th DCA 1990)(doctor's giving false testimony at final hearing in disciplinary action against doctor found to be "sufficient" ground upon which Board of Medicine could "enhance" penalty recommended by hearing officer).
30/ "[W]here a hearsay statement is admitted into evidence, the credibility of the non-testifying declarant can be impeached by the same methods as if the declarant had testified." Thomas v. State, 778 So. 2d 482, 483 (Fla. 4th DCA 2001); see also Section 90.806(1), Florida Statutes (2002) ("When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence
that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant's hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it."); and Section 90.608, Florida Statutes (2002)("Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness's present testimony; (2) Showing that the witness is biased; (3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610; (4) Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified; (5) Proof by other witnesses that material facts are not as testified to by the witness being impeached.").
31/ In light of the evidence elicited at hearing (which the undersigned has carefully considered and evaluated to determine its reliability and trustworthiness), the undersigned has no confidence in the veracity of either Ms. Washington or Respondent and, accordingly, is unwilling to rely on their self- serving words alone (whether or not directly contradicted by other evidence) to make any finding of fact in this case. See Walker v Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring)("[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Maurer v State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); Department of Highway Safety v. Dean, 662 So. 2d 371, 372 (Fla. 5th DCA
1995)("This court has strongly held to the view that the finder of fact is not required to believe the testimony of any witness, even if unrebutted."); Bellman v Yarmark Enterprises Inc., 180 So. 2d 663, 664 (Fla. 3d DCA 1965)("The two principal witnesses relied upon by appellant for the proof of usury were substantially impeached and we cannot say that the trial court was bound to accept their testimony. A chancellor as the 'finder of fact' may find a witness who has been impeached completely unworthy of belief, and in such circumstances it is within his province to reject such testimony."); Lerch v.
C.I.R., 877 F.2d 624, 631 (7th Cir. 1989)("The Tax Court may
disregard uncontradicted testimony by a taxpayer where it finds that testimony lacking in credibility."); U. S. v. Mitchell, 2002 WL 1433725 (D. N.J. 2002)("A litigant who manufactures an important piece of evidence--here, an alteration that would bar this entire case as untimely--attempts to work a fraud on the Court and against the adverse party, here the United States. At a minimum, this causes the Court to carefully weigh Mitchell's other proofs and to question his overall veracity in this case."); and Department of Professional Regulation, Board of Real Estate v. Young, No. 88-4592, 1989 WL 644987 (Fla. DOAH 1989)(Recommended Order)("Young's testimony that a $1845 bet was made on a football game is so unbelievable that it taints all of his testimony."). Among the assertions made by Respondent at hearing that were not corroborated by reliable evidence, and therefore determined by the undersigned to be of insufficient reliability to support any finding of fact, were her testimony concerning the amount of time she spent preparing to provide "services" to S. S., her testimony concerning what Ms.
Washington told her regarding the reporting of such time on the service logs, and her testimony concerning what she believed when she filled out these service logs regarding the appropriateness of her actions.
32/ This finding is based upon the credible testimony of Mr. Tomlinson. The undersigned has rejected as unworthy of belief the considerably less plausible testimony of Respondent that "[t]here weren't any signatures on [the log] with the exception of hers" at the time she submitted the log to Mr. Tomlinson.
33/ This "misspelling" evidence is supplemented by Ms. Akre's hearsay testimony that, when she showed J. A.'s mother the service log, J. A's mother verbally told her that the signatures on the "Parent Signature" lines were not hers and that, subsequently, J. A.'s mother gave a sworn statement to the same effect. See Wark v. Home Shopping Club, Inc., 715 So. 2d 323,
324 (Fla. 2d DCA 1998)("Hearsay is admissible for limited purposes in an administrative action. It may be admitted to supplement or explain other evidence, but is not sufficient in itself to support a finding unless it would be admissible in a civil action over objection."). (Ms. Akre further testified that J. A.'s mother also indicated that "services were provided [to J. A.], but [the mother] could not say when.").
34/ No handwriting experts, nor anyone who claimed be an eyewitness to the forgeries, testified at the final hearing; however, the circumstantial evidence that Respondent was the forger is compelling. Compare with The Florida Bar v. Massari,
27 Fla. L. Weekly S928, 2002 WL 31426270 (Fla. October 31, 2002)(despite absence of "direct proof . . . showing who was responsible for concocting the [forged escrow] document," court upheld referee's finding that bar member was the forger where bar member was "the only person who had motive and reason" to commit forgery); and Department of Education, Education Practices Commission v. Strange, Nos. 83-2899 and 83-3445, 1984 WL 276139 (Fla. DOAH 1984)(Recommended Order)("The evidence forcefully, and convincingly, supports the inference[s], now drawn, that respondent either alone or in combination with another--forged the signatures . . . on the IEP annual review forms described above. . . . These inferences are based on circumstantial evidence which is compelling. No other theory or hypothesis has been posited which is plausible, or even rational. The falsified forms were in respondent's control and it was her duty to see that they were complete and
accurate. . . . [S]he had not only the opportunity but a clear motive to 'correct' her records by forging, either alone or in concert with another, the required signatures. . . . There is no evidence that anyone, other than respondent, had anything to gain from falsifying the records in question.").
35/ The teachers that Respondent has claimed were treated more leniently than her did not engage in conduct comparable to hers.
36/ See Bell v. State, 369 So. 2d 932, 934 (Fla. 1979)("In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. . . . The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection."); State v. A. R. S., 684 So. 2d 1383, 1384 (Fla.
1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden. To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."); Thomas v. State, 583 So. 2d 336, 340 (Fla. 5th DCA 1991)("In order to constitute a denial of equal protection the selective enforcement must be deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification. . . . The mere failure to prosecute
all offenders is not grounds for a claim of denial of equal protection."); State v. Clayton, 517 So. 2d 40 (Fla. 4th DCA 1987)("The state appeals the dismissal of an information based on the trial court's finding of selective enforcement and other alleged misconduct on the part of the state. We reverse because the record does not support such a finding of selective enforcement or other misconduct. The appellees have failed to show that they were prosecuted because of an unjustifiable or arbitrary classification or that they were singled out for prosecution."); and Meristem Valley Nursery, Inc. v.
Metropolitan Dade County, 428 So. 2d 726, 728 (Fla. 3d DCA 1983)("We may summarily dispose of Meristem's constitutional argument as there is no denial of equal protection as a result of the County's enforcement of the ordinances against Meristem in this case. The ordinances themselves are valid on their face. Meristem's contention that County ordinances are never enforced with respect to trailers and shade houses and that by singling out Meristem for unequal treatment because of a citizen's complaint the law is unconstitutional as applied finds no support in the record or the law. The Florida Supreme Court has held that mere failure to prosecute all offenders is no ground for a claim of denial of equal protection, and that in order to constitute such a denial, selective enforcement must be deliberately based on an unjustifiable or arbitrary classification.").
37/ "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).
38/ 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 . . . ."); and Palm Beach County School Board v. Auerbach, No. 96-3683, 1997 WL 1052595 (Fla. DOAH 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.").
39/ The record evidence, however, as noted above, is insufficient to support the additional allegation, made in paragraph 9a of the Statement of Charges, that some of the "Parent Signatures" on Respondent's service logs relating to
S. S were also forged.
40/ Respondent's conduct does not fit neatly within the scope of the conduct proscribed by the other two rule provisions cited in the Statement of Charges, Subsections (3)(h) and (4)(c) of Rule 6B-1.006, Florida Administrative Code.
41/ Respondent's acts of misconduct (as described above) constitute "just cause" for termination whether they are viewed separately or collectively.
COPIES FURNISHED:
Elizabeth Coke, Esquire David Miklas, Esquire
J. David Richeson & Associates, P.A. Post Office Box 4048
Fort Pierce, Florida 34948
Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A.
215 West Verne Street, Suite D Tampa, Florida 33606
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
Tallahassee, Florida 32399-0400
Dr. William Vogel, Superintendent St. Lucie County School Board 2909 Delaware Avenue
Ft. Pierce, Florida 34947-7299
Daniel J. Woodring, General Counsel Department of Education
The Capitol, Suite 1701 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.
1 Although counsel for Respondent may have had "concerns" about "going forward with th[is] administrative matter prior to adjudication of Respondent's criminal case," the undersigned's placing Respondent in such a situation did not violate her constitutional rights. See Hinman v. Department of Highway Safety and Motor Vehicles, 820 So. 2d 315, 317 (Fla. 5th DCA 2001)("We conclude that no Fifth Amendment right was involved in the administrative hearing. Thus, a person being subsequently prosecuted for DUI has no right to stay the license suspension hearing."); U. S. v. Kordel, 90 S.Ct. 763, 769 (1970)("[W]e cannot agree that the respondents have made out either a violation of due process or a departure from proper standards in the administration of justice requiring the exercise of our supervisory power. The public interest in protecting consumers throughout the Nation from misbranded drugs requires prompt action by the agency charged with responsibility for administration of the federal food and drug laws. But a rational decision whether to proceed criminally against those responsible for the misbranding may have to await consideration of a fuller record than that before the agency at the time of the civil seizure of the offending products. It would stultify enforcement of federal law to require a governmental agency such as the FDA invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial."); Peiffer v. Lebanon School District, 848 F.2d 44, 46 (3d Cir. 1988)("It is, of course, clear that there was no constitutional requirement that the board grant him a postponement of the [administrative] hearing [on whether his dismissal was warranted] pending disposition of the criminal charges."); Hoover v. Knight, 678 F.2d 578, 582 (5th Cir. 1982)("Finally, it should be noted that the police department had a strong interest in the prompt resolution of the charges against the appellee. Even though she was on suspension and the hearing examiner's discretion might better have been used in granting a continuance, a balancing of the police department's interest in the prompt resolution of the case against the appellee's interest in litigating her cause without risk to her position leads us to conclude that this controversy does not rise to the level of an impermissible burden on the exercise of her constitutional rights."); Arthurs v. Stern, 560 F.2d 477,
480 (1st Cir. 1977)("Given the strong public interest in promptly disciplining errant physicians taken as a class, we see no reason to hold that the board was or could be
constitutionally required to stay its proceedings until the criminal prosecutions against any particular doctor were over."); Closs v. Goose Creek Consolidated Independent School District, 874 S.W.2d 859, 874 (Tex. App. 1994)("Closs contends that his due process rights were violated because the hearing was held while he was still under criminal indictment, thus he could not testify on his own behalf for fear of waiving his Fifth Amendment privilege. Although Closs was in a predicament because of the parallel criminal and administrative proceedings, this does not amount to a denial of due process by the school board. . . . Closs always had a choice, and indeed exercised that choice, regarding the assertion of his Fifth Amendment rights. He was not forced to waive his rights or else face automatic termination from his job with the school district."); and Rosenberg v. Board of Education of School District No. 1, Denver Public Schools, 710 P.2d 1095, 1101 n.11 (Colo.
1985)("There is no right to a continuance of administrative proceedings pending the outcome of parallel criminal proceedings.").
2 See Eller Media Co. v. Serrano, 761 So. 2d 464, 466 (Fla. 3d DCA 2000)("Because Garcia has yet to formally invoke his Fifth Amendment privilege, we find that the trial court [in this civil action] did not abuse its discretion in denying the requested stay [on the ground that the stay request was premature]."); and Rappaport v. Levy, 696 So. 2d 526, 527 (Fla. 3d DCA 1997)("Because respondent has not yet invoked his Fifth Amendment privilege, we think the trial court [in this civil action] was premature in entering the foregoing order [providing that the trial would be continued indefinitely].").
3 At the final hearing, the parties clarified this stipulation by agreeing that Respondent, in fact, "was paid for the hours reflected on the[se] service logs."
4 In her position statement that was included in the parties' Joint Pre-Hearing Stipulation, Respondent asserted that, "[w]hile it is undisputed that Respondent included non-contact hours on her service logs, the facts will show that these entries were for work Respondent did on behalf of a homebound student" and that "Respondent's immediate supervisor authorized Respondent to include these non-contact hours on Respondent's service logs."
5 The undersigned has accepted these factual stipulations, except to the extent that they reflect that Respondent was
assigned to provide instruction to J. A. during the 2000-01 school year, as opposed to the 2001-02 school year. See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy.'"); and EGYB, Inc. v. First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties.").
6 Students who are hospitalized in another county (outside of St. Lucie County) do not receive services during their out-of- county hospitalization.
7 H/H teachers are permitted to round these times to the nearest fifteen minutes.
8 The Program is administratively located in the School Board's Department of Exceptional Student Education.
9 An H/H teacher may be disciplined for engaging in conduct that the teacher knew or should have known was in violation of an established Program or School Board policy or otherwise contrary to the School Board's interests, notwithstanding whatever the teacher may have been told by the Program Specialist before the teacher embarked upon such a course of action. See Temple University of Commonwealth System of Higher Education v. Unemployment Compensation Board of Review, 772 A.2d 416, 417-19 (Pa. 2001)("Temple argues that, contrary to the Commonwealth Court's findings, Mr. Stefaniak's belief that his supervisor had the authority to authorize payment for hours not worked does not establish good cause for his misconduct in applying for and accepting payment for hours not worked. We agree and therefore reverse. . . . During the time period in question, Mr. Stefaniak's manager told him to change his time sheet in order to be paid for several hours that he did not work. Mr. Stefaniak's manager informed Mr. Stefaniak that he was being rewarded for being a good employee, and Mr. Stefaniak believed that his manager had the authority to tell him to make the
changes. Accordingly, Mr. Stefaniak changed his time sheets to indicate that he was working during time periods when he actually was not. Mr. Stefaniak's manager then authorized payment for those hours by submitting the fraudulent time sheets to Temple. Temple had a policy stating that the stealing or deliberate destruction of University property or the property of other employees, patients, clients, students or visitors would result in termination. Based on this policy and Mr. Stefaniak's submission of fraudulent time sheets, Temple fired Mr. Stefaniak on March 10, 1998. Temple also fired Mr. Stefaniak's manager and several of his co-workers. . . . Mr. Stefaniak's mistaken belief that his supervisor could authorize extra pay for hours not worked did not constitute a valid justification for his misconduct. . . . We therefore conclude that the Commonwealth Court erred in finding that Mr. Stefaniak had good cause to steal from Temple."); Kazensky v. City of Merced, 76 Cal.Rptr.2d 356, 373 (Cal. App. 1998)("Respondents argued to the Board that if Kazensky was a 'supervisor,' then Mileur committed no misconduct because Kazensky permitted Mileur to engage in that conduct and therefore Mileur's conduct was 'authorized.'
Perhaps this argument was the impetus for the Personnel Board's finding that Kazensky was not a supervisor. But a 'supervisor' cannot authorize misconduct. A supervisor could not authorize the theft of City time any more than he or she could authorize the theft of City equipment or tools. If an employee expressed an admiration for an expensive set of City-owned tools, for example, a supervisor could not properly say, 'Well then take them home, they're yours, a gift from the City.'"); City of Picayune v. Mississippi Employment Security Commission, 525 So. 2d 1330, 1332 (Miss. 1988)("Numerous directives had been published to all employees of the police department prohibiting the activities in which Mrs. Raper engaged, among them is one which . . . was signed by Richard B. Martin, the Police Chief, and among other directives announcing the same rule was one from Lorance Lumpkin, who allegedly gave Mrs. Raper permission to violate the rule. All we can say concerning this is that we would then have two people guilty of misconduct instead of one."); Dempsey v. Unemployment Compensation Board of Review,
499 A.2d 740, 742 (Pa. Cmwlth. Ct. 1985)("[A]n employing institution has a right to expect that employees in responsible positions will report fraudulent conduct and not continue it."); and Brode v. Unemployment Compensation Board of Review, 470 A.2d 200, 202-03 (Pa. Cmwlth. Ct. 1984)("Although not strictly guilty of falsification of records, the employees' knowing acceptance of overpayment rendered them participants in the scheme, and possibly guilty of theft in violation of Plant Rule No. 5. . . .
The employees seek to justify their misconduct by asserting that they believed the inflated compensation to be proper because the supervisor had told them that he would 'take care' of them, suggesting that he had authority to provide the extra compensation. However, an employee's action upon a mistaken belief of legal entitlement is not a justification for violation of an employer's rule. . . . Therefore, the employees' argument falls short of establishing good cause for their misconduct.").
10 Specifying for H/H teachers those things for which they will be paid also informs them, at the same time, of what they will not be paid for. Cf. PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("The express mention of one thing implies the exclusion of another."); Harrell v. Durrance, 9 Fla. 490 (Fla. 1861)("In the bill of sale, as we have already seen, the parties expressed the marks and brands of the cattle. The maxim expressio unius est exclusio alterius, (the express mention of one thing implies the exclusion of another,) is peculiarly applicable here. The presumption is, that having expressed the marks and brands of some, they have expressed all which they intended."); and U.S. ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir. 1991)("As a preliminary matter, we find that the methods of 'public disclosure' set forth in section 3730(e)(4)(A) are exclusive of the types of public disclosure that would defeat jurisdiction under that section. The list of methods of 'public disclosure' is specific and is not qualified by words that would indicate that they are only examples of the types of 'public disclosure' to which the jurisdictional bar would apply. Congress could easily have used 'such as' or 'for example' to indicate that its list was not exhaustive. Because it did not, however, we will not give the statute a broader effect than that which appears in its plain language.").
11 Respondent testified that she became an H/H teacher "to earn extra money," not to "just to do extra work and not be compensated for it."
12 It is not clear from the evidentiary record exactly when Respondent started in the Program. It was either 1999 or earlier. (Respondent's attorney, during Respondent's testimony, when Respondent was being cross-examined by the School Board's attorney, asserted that "[t]he first year [Respondent] taught homebound was 98-99." This assertion, however, does not constitute evidence upon which a finding of fact may be based. See State v. Gosier, 737 So. 2d 1121, 1122 n.1 (Fla. 4th DCA
1999)("That is all the evidence that could have been relied upon by the trial judge to justify a departure sentence. Although defense counsel made a number of statements concerning the defendant, the defendant's life, the crime, and supposed remorse, those statements do not constitute evidence."); Bassette v. Health Management Resources Corporation, 661 So. 2d 317, 319 (Fla. 2d DCA 1995)("In the absence of a stipulation, a trial court may not consider as fact an attorney's unsworn statements."); Sabina v. Dahlia Corporation, 650 So. 2d 96, 99 (Fla. 2d DCA 1995)("[T]his statement by Sabina's attorney does not constitute competent evidence before the trial court in this matter because it was an unsworn statement of a relevant fact in issue. In the absence of a stipulation . . . 'a trial court cannot make a factual determination based on an attorney's unsworn statements' and 'is precluded from considering as fact unproven statements documented only by an attorney.'"); and Leon Shaffer Golnick Advertising v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982)("It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.").)
13 This finding of fact is based upon the testimony of J. S., who testified with apparent candor and sincerity at the final hearing.
14 Although S. S. received A's in algebra during the 2000-01 school year (when Respondent was her H/H teacher), the following school year she was taken out of her tenth grade mathematics class and "put back in" algebra "because [she] didn't know the material" that she was supposed to have learned in her algebra course the year before (during ninth grade).
15 "Actions manifest intent." State v Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982); see also Swanson v. State, 713 So. 2d 1097, 1101 (Fla. 4th DCA 1998)("Appellant's actions are sufficient to show intent to participate."); G. K. D. v. State,
391 So. 2d 327, 328-29 (Fla. 1st DCA 1980)("Appellant testified that he did not intend to break the window, but the record indicates that he did willfully kick the window, and he may be presumed to have intended the probable consequences of his
actions."); and State v. West, 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("[Intent] is not usually the subject of direct proof. It is inferred from the acts of the parties and from the surrounding circumstances. . . . Being a state of mind, intent is usually a question of fact to be determined by the trier of fact. The trier of fact has the opportunity to observe the witnesses. From that observation, the trier of fact may determine the believability of that witness and the weight to be given his testimony. The demeanor of the witness, his frankness, or lack of frankness, his intelligence, his interest in the outcome of the case, and the reasonableness of the testimony presented, in the light of all the evidence in the case, are but a few of those factors which may play a part in making that determination.").
16 The undersigned has rejected as unworthy of belief Respondent's testimony to the contrary.
17 The evidence is insufficient to establish that any signature on any "Parent Signature" line is a forgery which was the work of Respondent's. J. S. testified that she was unable to tell for sure, by looking at the signatures on the logs, whether or not any were not hers. At one point, she suggested that a "handwriting expert [was] need[ed]" to determine the genuineness of the signatures because she was unable to make such a determination based upon her visual inspection of the signatures (a suggestion that neither party followed up on). J. S. did testify that there were some signatures that "c[ould]n't be [hers]" (even though they may have looked like hers) because
S. S. was hospitalized at St. Mary's Medical Center on the service dates to the left of these signatures; however, in coming to this conclusion, J. S. overlooked the possibility that these signatures could be among those that, at Respondent's request (as described above), J. S. placed on the "Parent Signature" lines that, at the time of her signing her name, had no corresponding service date entries.
18 Although none of the logs contained any notation as to whether the times indicated thereon were "a.m." or "p.m.," it is reasonable to believe, since Respondent was a "contracted teacher" whose schedule did not permit her to provide hospitalized/homebound services during the regular school day, that the times she entered on the logs were in the afternoon and evening, after the end of the regular school day.
19 Respondent evidently recognized that there was a difference between time spent "serv[ing]" a student and "planning" time and that, therefore, "planning time" could not be reported, on the H/H Service Log, as time the "student was served."
20 It is unclear from the evidence whether these are all of Travel Reimbursement Forms that Respondent submitted during this time period.
21 In response to the questioning of the School Board's attorney on cross-examination, Respondent conceded that she had not been at S. S.'s home on October 2, 3, and 4, 2000, but maintained that, during the time that she claimed on the first service log to have "served" S. S. on these days (from 9:00 to 11:00 on each day, hours that were, in Respondent's own words, "pretty late" for S. S., "given [S. S.'s] illness and her ability
to . . . function"), she (Respondent) was doing something (exactly what she could not recall) related to her assignment as
S. S.'s H/H teacher for which she was told by Ms. Washington she could be compensated. Respondent's story that the service log entries for October 2, 3, and 4, 2000, were intended to represent compensable "non-contact hours" (as opposed to "actual student contact hours"), which story is flimsy to begin with, falls entirely apart upon examination of the Travel Reimbursement Form covering the period including October 2, 3, and 4, 2000, on which Respondent claimed to have traveled to
S. S.'s home on each of these days.
22 Although Ms. Washington did not so specify on the service logs, these times are, presumably, p.m., not a.m.
23 On the service log, Ms. Washington incorrectly identified September 20, 2000, as a Tuesday (it was a Wednesday), September 21, 2000, as a Wednesday (it was a Thursday), September 22, 2000, as a Thursday (it was a Friday), and September 24, 2000, as a Friday (it was a Sunday).
24 As noted above, on her first service log, Respondent claimed that she too "served" S. S. on September 25 and 26, 2000, and did so during a portion of the time that, according to Ms. Washington's log, "services were [also] provided by [Ms. Washington]": from 8:00 to 9:00 on September 25, 2000, and from 7:30 to 9:00 on September 26, 2000.
25 As noted above, Respondent's first service log reflects that she began "serv[ing]" S. S. on September 25, 2000.
26 It appears that there were other logs relating to S. S., in addition to the one that is part of the evidentiary record in this case, that Ms. Washington submitted.
27 It is "strange" to have "two teachers out there at the same time providing services to a student."
28 "Witnesses may be impeached by their previous failure to state a fact in circumstances where that fact naturally would have been asserted." Raupp v. State, 678 So. 2d 1358, 1360 (Fla. 5th DCA 1996); see also Atlas v. Atlas, 708 So. 2d 296,
299 (Fla. 4th DCA 1998)("Atlas not only failed to present evidence of his inability to pay the purge amount, but also invoked the Fifth Amendment concerning his financial status and refused to testify as to the content of his financial affidavit. The trial court could have properly drawn an adverse inference from this invocation that would further support a finding that Atlas, who has continuously fought payment of his child support since 1990, had the ability to pay the purge amount ordered."); Fraser v. Security and Investment Corporation, 615 So. 2d 841, 841-42 (Fla. 4th DCA 1993)("At a pretrial deposition, Fraser, faced with a claim of civil theft and not yet having obtained counsel, refused to answer questions, asserting his Fifth Amendment privilege against self-incrimination. At a subsequent deposition, having obtained counsel, Fraser abandoned his self- incrimination privilege. His motion in limine to prevent disclosure of the earlier invocation of the privilege was denied and at trial the jury learned that Fraser had invoked the Fifth Amendment. The first issue on appeal is whether this was reversible error. We hold that it was not."); Holmes v. State,
565 So. 2d 824, 825 (Fla. 4th DCA 1990)("Failure to present an alibi at the earliest time possible certainly has a reflection on the credibility of both the witness and the alibi."); Reaser v. State, 356 So. 2d 891, 892 (Fla. 3d DCA 1978)("Defendant should have known he was likely to be charged with a crime, and it is reasonable to believe that one who fears he is about to be charged with a crime committed by another would seek to exonerate himself as quickly as possible by volunteering exculpatory information to the police. A defendant's silence in such circumstances can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is inconsistent with his earlier silence."); Harrison v. Wille, 132 F.3d 679, 682-83 (11th Cir. 1998)("[A] public employee cannot be terminated solely for the exercise of his Fifth Amendment rights. . . . Considered along with other evidence, however, an
adverse inference may be drawn from an employee's exercise of his Fifth Amendment right to silence."); Hoover v. Knight, 678 F.2d at 582 n.1 ("We note that the hearing examiner [in the administrative hearing below] would not be constitutionally forbidden from drawing adverse inferences from an invocation of the privilege against self-incrimination."); and Broward County School Board v. Sapp, No. 01-3803, 2002 WL 31455675 (Fla. DOAH 2002)(Recommended Order)("Making matters worse for Sapp is that he remained silent even when asked by the principal on the afternoon of Friday, February 23, 2001, about suspicious activity in the media center the night before. Sapp now concedes that it was a 'mistake' not to tell the Mr. Traeger the supposedly exculpatory truth that day, and clearly it was but
it was more than that. If Sapp were innocent as he now claims, common sense teaches that he would have revealed everything to Mr. Traeger then and there. Sapp's silence at this point is not only inconsistent with innocence but also circumstantial evidence of guilt; the reasonable inference is that he was covering up a known wrong."). It could be argued that Respondent's failure to take advantage of the opportunity she was given to tell "her side of the story" during the "formal fact-finding," before any disciplinary action was initiated against her, is evidence that the exculpatory testimony she gave at hearing was recently contrived. It is unnecessary, however, to draw such an adverse inference from Respondent's silence during the "formal fact-finding," and therefore the undersigned will not do so, since, even if Respondent's pre-disciplinary action silence is disregarded, the contrived nature of her exculpatory testimony is apparent. Compare with S.E.C. v. Tome, 638 F. Supp. 629, 631 (S.D. N.Y. 1986)("The authorities cited below would have fully justified drawing an adverse inference against Tome from his assertion of the privilege against self- incrimination herein. In the circumstances presented, however, it is unnecessary to utilize the inference to establish liability. Even if needed to establish liability, it would have been merely one inference among a number of evidentiary factors considered by this Court in reaching its conclusions. Tome's liability herein has been established by a preponderance of the credible evidence, without regard to the adverse inference.").
29 This finding of fact is based upon the testimony of S. S., who, like her mother and unlike Respondent, was a credible witness, so credible that the undersigned has no doubt that she accurately recounted the events about which she testified. When Respondent took the stand to testify on her own behalf, she testified that this testimony given by S. S. was not true, but,
when asked by her attorney, could not offer any possible reason "why [S. S.] would say such a thing." The only reason the undersigned can fathom for S. S. having given this testimony was her desire to tell the truth. The undersigned, therefore, has found that, consistent with S. S.'s disinterested testimony, and contrary to Respondent's self-serving testimony, Respondent did ask S. S. to lie about the frequency of Respondent's visits.
That Respondent did so is compelling evidence of her guilty knowledge. See Vaccaro v. State, 11 So. 2d 186, 188 (Fla. 1943)("In our consideration of this case we are justified in considering, as the jury was, the . . .[appellants'] attempt to intimidate a State witness."); Coronado v. State, 654 So. 2d 1267, 1270 (Fla. 2d DCA 1995)("Evidence of threats made by a defendant or with a defendant's knowledge is relevant to an attempt to suborn perjury since it indicates a desire to evade prosecution and is evidence of consciousness of guilt."); Quarrells v. State, 641 So. 2d 490, 491 (Fla. 5th DCA 1994)("Reed's testimony that Quarrells personally attempted to influence him to testify falsely was admissible as substantive evidence of Quarrells' guilt."); Knotts v. State, 533 So. 2d 826, 827 (Fla. 1st DCA 1988)("[W]e disagree with appellant's contention that the lower court's admission of certain threats and offers of gifts made by appellant to others following his arrest for the instant offense was erroneous. Such testimony was clearly relevant in that it related to appellant's attempts to suborn perjury."); Manuel v. State, 524 So. 2d 734, 735 (Fla. 1st DCA 1988)("If a third person's attempt to influence a witness is admissible to prove the defendant's guilt, it naturally follows that such an attempt by the defendant himself would be admissible."); Brown v. State, 391 So. 2d 729, 730 (Fla. 3d DCA 1980)("Evidence of a defendant's acts or statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt."); and Ballard v. State, 494 S.E.2d 644, 645 (Ga. 1998)("Ballard's girlfriend testified that Ballard threatened to beat her if she did not lie to police and tell them she had walked Ballard to the bus stop after the shooting. This evidence was admissible to show Ballard's consciousness of guilt and, therefore, the trial court did not err in admitting it."). (Asking S. S. to lie in an effort to prevent the School Board from finding out about Respondent's intentional falsification of the service logs she submitted, and denying under oath that she had done so, in and of themselves, constitute serious wrongdoing; however, because Respondent has not been charged with such wrongdoing, the School Board, in the instant case, can neither punish Respondent for having committed these acts, nor take such misconduct into
consideration in determining the severity of the punishment Respondent should receive for the misconduct that has been charged and proven. See Texton v. Hancock, 359 So. 2d 895, 897
n.2 (Fla. 1st DCA 1978)("There was one finding of more serious conduct, that Ms. Texton had tried to intimidate witnesses from testifying against her. This finding, however, had no predicate in the charges filed against her. Such a finding, in the absence of notice, may not be a lawful basis for discharge."); and Mills v. Callahan, No. 90-2307, 1991 WL 833059 (Fla. DOAH 1991)(Recommended Order)("Misconduct not charged cannot be the basis for suspension or termination of a teacher, even where the uncharged misconduct is proved at the hearing."); see also In re: Davey, 645 So. 2d 398, 405 (Fla. 1994)("[O]nly where lack of candor is formally charged and proven may it be used as a basis for removal or reprimand" of a judge.);and Bernal v. Department of Professional Regulation, Board of Medicine, 517 So. 2d 113,
115 (Fla. 3d DCA 1987), approved, 531 So. 2d 967 (Fla. 1988)(disciplinary action against licensee may not be increased based upon licensee's "alleged lack of candor in his testimony before the hearing officer[,] . . . an offense with which he was not charged"; "one's conduct in defending an action against him may not be the subject of an increased penalty if he is nevertheless found guilty of the substantive crime charged."); but see Jimenez v. Department of Professional Regulation, Board of Medicine, 556 So. 2d 1219, 1220-21 (Fla. 4th DCA 1990)(doctor's giving false testimony at final hearing in disciplinary action against doctor found to be "sufficient" ground upon which Board of Medicine could "enhance" penalty recommended by hearing officer).
30 "[W]here a hearsay statement is admitted into evidence, the credibility of the non-testifying declarant can be impeached by the same methods as if the declarant had testified." Thomas v. State, 778 So. 2d 482, 483 (Fla. 4th DCA 2001); see also Section 90.806(1), Florida Statutes (2002) ("When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant's hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it."); and Section 90.608, Florida Statutes (2002)("Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness's present
testimony; (2) Showing that the witness is biased; (3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610; (4) Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified; (5) Proof by other witnesses that material facts are not as testified to by the witness being impeached.").
31 In light of the evidence elicited at hearing (which the undersigned has carefully considered and evaluated to determine its reliability and trustworthiness), the undersigned has no confidence in the veracity of either Ms. Washington or Respondent and, accordingly, is unwilling to rely on their self- serving words alone (whether or not directly contradicted by other evidence) to make any finding of fact in this case. See Walker v Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring)("[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Maurer v State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); Department of Highway Safety v. Dean, 662 So. 2d 371, 372 (Fla. 5th DCA
1995)("This court has strongly held to the view that the finder of fact is not required to believe the testimony of any witness, even if unrebutted."); Bellman v Yarmark Enterprises Inc., 180 So. 2d 663, 664 (Fla. 3d DCA 1965)("The two principal witnesses relied upon by appellant for the proof of usury were substantially impeached and we cannot say that the trial court was bound to accept their testimony. A chancellor as the 'finder of fact' may find a witness who has been impeached completely unworthy of belief, and in such circumstances it is within his province to reject such testimony."); Lerch v.
C.I.R., 877 F.2d 624, 631 (7th Cir. 1989)("The Tax Court may disregard uncontradicted testimony by a taxpayer where it finds that testimony lacking in credibility."); U. S. v. Mitchell, 2002 WL 1433725 (D. N.J. 2002)("A litigant who manufactures an important piece of evidence--here, an alteration that would bar this entire case as untimely--attempts to work a fraud on the Court and against the adverse party, here the United States. At a minimum, this causes the Court to carefully weigh Mitchell's other proofs and to question his overall veracity in this
case."); and Department of Professional Regulation, Board of Real Estate v. Young, No. 88-4592, 1989 WL 644987 (Fla. DOAH 1989)(Recommended Order)("Young's testimony that a $1845 bet was made on a football game is so unbelievable that it taints all of his testimony."). Among the assertions made by Respondent at hearing that were not corroborated by reliable evidence, and therefore determined by the undersigned to be of insufficient reliability to support any finding of fact, were her testimony concerning the amount of time she spent preparing to provide "services" to S. S., her testimony concerning what Ms.
Washington told her regarding the reporting of such time on the service logs, and her testimony concerning what she believed when she filled out these service logs regarding the appropriateness of her actions.
32 This finding is based upon the credible testimony of Mr. Tomlinson. The undersigned has rejected as unworthy of belief the considerably less plausible testimony of Respondent that "[t]here weren't any signatures on [the log] with the exception of hers" at the time she submitted the log to Mr. Tomlinson.
33 This "misspelling" evidence is supplemented by Ms. Akre's hearsay testimony that, when she showed J. A.'s mother the service log, J. A's mother verbally told her that the signatures on the "Parent Signature" lines were not hers and that, subsequently, J. A.'s mother gave a sworn statement to the same effect. See Wark v. Home Shopping Club, Inc., 715 So. 2d 323,
324 (Fla. 2d DCA 1998)("Hearsay is admissible for limited purposes in an administrative action. It may be admitted to supplement or explain other evidence, but is not sufficient in itself to support a finding unless it would be admissible in a civil action over objection."). (Ms. Akre further testified that J. A.'s mother also indicated that "services were provided [to J. A.], but [the mother] could not say when.").
34 No handwriting experts, nor anyone who claimed be an eyewitness to the forgeries, testified at the final hearing; however, the circumstantial evidence that Respondent was the forger is compelling. Compare with The Florida Bar v. Massari,
27 Fla. L. Weekly S928, 2002 WL 31426270 (Fla. October 31, 2002)(despite absence of "direct proof . . . showing who was responsible for concocting the [forged escrow] document," court upheld referee's finding that bar member was the forger where bar member was "the only person who had motive and reason" to commit forgery); and Department of Education, Education Practices Commission v. Strange, Nos. 83-2899 and 83-3445, 1984
WL 276139 (Fla. DOAH 1984)(Recommended Order)("The evidence forcefully, and convincingly, supports the inference[s], now drawn, that respondent either alone or in combination with another--forged the signatures . . . on the IEP annual review forms described above. . . . These inferences are based on circumstantial evidence which is compelling. No other theory or hypothesis has been posited which is plausible, or even rational. The falsified forms were in respondent's control and it was her duty to see that they were complete and
accurate. . . . [S]he had not only the opportunity but a clear motive to 'correct' her records by forging, either alone or in concert with another, the required signatures. . . . There is no evidence that anyone, other than respondent, had anything to gain from falsifying the records in question.").
35 The teachers that Respondent has claimed were treated more leniently than her did not engage in conduct comparable to hers.
36 See Bell v. State, 369 So. 2d 932, 934 (Fla. 1979)("In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. . . . The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection."); State v. A. R. S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden. To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."); Thomas v. State, 583 So. 2d 336, 340 (Fla. 5th DCA 1991)("In order to constitute a denial of equal protection the selective enforcement must be deliberately based on an unjustifiable standard such as race, religion or other arbitrary classification. . . . The mere failure to prosecute all offenders is not grounds for a claim of denial of equal protection."); State v. Clayton, 517 So. 2d 40 (Fla. 4th DCA 1987)("The state appeals the dismissal of an information based on the trial court's finding of selective enforcement and other alleged misconduct on the part of the state. We reverse because the record does not support such a finding of selective
enforcement or other misconduct. The appellees have failed to show that they were prosecuted because of an unjustifiable or arbitrary classification or that they were singled out for prosecution."); and Meristem Valley Nursery, Inc. v.
Metropolitan Dade County, 428 So. 2d 726, 728 (Fla. 3d DCA 1983)("We may summarily dispose of Meristem's constitutional argument as there is no denial of equal protection as a result of the County's enforcement of the ordinances against Meristem in this case. The ordinances themselves are valid on their face. Meristem's contention that County ordinances are never enforced with respect to trailers and shade houses and that by singling out Meristem for unequal treatment because of a citizen's complaint the law is unconstitutional as applied finds no support in the record or the law. The Florida Supreme Court has held that mere failure to prosecute all offenders is no ground for a claim of denial of equal protection, and that in order to constitute such a denial, selective enforcement must be deliberately based on an unjustifiable or arbitrary classification.").
37 "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).
38 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 . . . ."); and Palm Beach County School Board v. Auerbach, No. 96-3683, 1997 WL 1052595 (Fla. DOAH 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.").
39 The record evidence, however, as noted above, is insufficient to support the additional allegation, made in paragraph 9a of the Statement of Charges, that some of the "Parent Signatures" on Respondent's service logs relating to S. S were also forged.
40 Respondent's conduct does not fit neatly within the scope of the conduct proscribed by the other two rule provisions cited in the Statement of Charges, Subsections (3)(h) and (4)(c) of Rule 6B-1.006, Florida Administrative Code.
41 Respondent's acts of misconduct (as described above) constitute "just cause" for termination whether they are viewed separately or collectively.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 20, 2003 | Agency Final Order | |
| Dec. 31, 2002 | Recommended Order | Just cause existed to terminate professional service contract teacher who overstated on service logs number of hours of homebound instruction she provided and forged a parent`s signature on another service log. |
CHARLIE CRIST, AS COMMISSIONER OF EDUCATION vs JOSEPH A. GATTI, 02-000973 (2002)
GADSDEN COUNTY SCHOOL BOARD vs. JOHN C. BUCKLEY, 02-000973 (2002)
LAKE COUNTY SCHOOL BOARD vs. SANDRA OSTEEN, 02-000973 (2002)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs STEPHEN LAUSTER, 02-000973 (2002)
MANATEE COUNTY SCHOOL BOARD vs CHARLES E. WILLIS, 02-000973 (2002)
