STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

TIMOTHY J. WARD

Respondent.

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)

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) Case No. 10-8920

) *Corrected as to

) Scrivener’s error

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)

)

*CORRECTED RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in Fort Lauderdale, Florida, on November 15, 2010, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Eugene K. Pettis, Esquire

Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza, 7th Floor

100 Southeast Third Avenue Fort Lauderdale, Florida 33394

For Respondent: Timothy Ward, pro se

829 Northwest 81st Avenue Plantation, Florida 33324

STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the Administrative Complaint dated May 17, 2010, and, if so, the discipline, if any, that should be imposed against Respondent’s employment.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on June 15, 2010, the School Board of Broward County, Florida, (Petitioner) voted to suspend the employment of Timothy J. Ward (Mr. Ward or Respondent) without pay and to terminate his employment subject to his right to request a formal administrative hearing.

Respondent timely requested a formal administrative hearing to challenge Petitioner’s action; the matter was referred to DOAH and this proceeding followed.

Unless otherwise noted, each reference to a statute is to Florida Statutes (2010), and each reference to a rule is to the rule as published in Florida Administrative Code as of the date of this Recommended Order. There has been no material change to any statute or rule cited in this Recommended Order from the date the events occurred to the date of this Recommended Order.

At the times relevant to this proceeding, Mr. Ward worked full-time as a classroom teacher at Western High School (WHS) and as a part-time teacher on certain nights at Hallandale Adult Community Center (HACC). Both schools are public schools in Broward County, Florida. Succinctly stated, the Administrative Complaint charged Respondent with theft of services in excess of

$3,000.00 by falsifying his time sheets at HACC. The Administrative Complaint further alleged Respondent received compensation for time he had not worked based on the falsified

time sheets. Based on the allegations set forth in the Administrative Complaint, Petitioner alleged in paragraphs 7 and

8 as follows:

1. The legal basis for Mr. Ward's termination is for [sic] immorality, misconduct in office that has been deemed so serious as to impair is effectiveness within the school system and/or criminal acts of moral turpitude. See 1012.33, Fla. Stat. See also Fla. Admin. Code R. 6B-1.001, 6B- 1.006, [and] 6B-4.009."

   
   

2. Additionally, Mr. Ward is no longer eligible for employment based on the charges against him for theft in excess of $3,000. See § 1012.315, Fla. Stat.

At the final hearing, Petitioner presented the testimony of Kathleen Doody (Assistant Principal at HACC), Vincent Schiavo (Assistant Principal at HACC), and Marc Elias (a former detective with Petitioner's Special Investigative Unit).

Petitioner offered 19 sequentially-numbered exhibits, each of which was admitted into evidence.

Mr. Ward testified on his own behalf and offered 15 sequentially-numbered exhibits of which Respondent Exhibits 1-9 and 13-15 were admitted into evidence. Respondent did not offer his previously marked exhibits 10, 11, and 12 after Petitioner objected to those exhibits.

A Transcript of the proceedings, consisting of one volume, was filed on December 9, 2010. On the motion of Petitioner, the deadline for the filing of proposed recommended orders was

extended to December 23, 2010. Each party filed a Proposed Recommended Order, and both have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida.

2. Petitioner has employed Respondent since 2000, most recently as a full-time teacher at WHS during the day and as a part-time adult education teacher at HACC after regular school hours, teaching GED classes and alternative high school classes.

3. When he began employment with Petitioner, Mr. Ward signed a memo indicating that he had read The Code of Ethics of the Education Profession and The Principles of Professional Conduct for the Education Profession in Florida. By signing the memo, Mr. Ward acknowledged that he recognized all obligations and responsibilities placed on him.

4. During the 2008-2009 school year, Mr. Ward contracted with Petitioner to teach part-time at HACC. The contract provided that Mr. Ward would teach after-school (or night) classes on Monday nights and Thursday nights. At HACC, the part-time instructors, such as Mr. Ward, were compensated on an hourly basis. Each part-time instructor completed a time sheet in writing by inserting the date worked, the start time of the

   
   

   work and the end time of the work. The part-time instructor also inserted the number of hours worked for the day and signed his or her name next to the entry for each day worked. Each part-time instructor also signed at the end of each pay period beneath the following certification, "I certify that this payroll sheet is accurate and correct, and that all hours reported were worked on my own time."

5. In March of 2009, Ms. Doody, an assistant principal at HACC, reviewed certain payroll records in preparation for an upcoming audit. In reviewing Mr. Ward's time sheet for August of 2008, Ms. Doody noticed that Mr. Ward had signed in as having worked at HACC on certain nights when she knew there were no classes. Ms. Doody then reviewed Mr. Ward's time sheet for September 2008 and noted that Mr. Ward had signed in to work on a Sunday, a day on which no classes are held.

6. Ms. Doody brought Mr. Ward's time sheets to the attention of Vincent Schiavo, who is also an assistant principal at HACC. Mr. Schiavo serves as the head administrator for the night school program at HACC.

7. Mr. Schiavo confirmed Ms. Doody's findings that

   
   

   Mr. Ward's time sheets for August and September 2008 reflect work on days on which there were no classes at HACC.

8. Mr. Schiavo then pulled all of Mr. Ward's original time

   
   

   sheets for the 2008-2009 school year beginning in August of 2008, and ending in April of 2009.

9. Mr. Schiavo determined that based on Mr. Ward's time sheets, he was paid for hours he did not work during the following months of the 2008-2009 school Year: August (12.75 hours), September (30.5), October (30.25), November (31.25), December (27.25), and January (34.25).1

10. Mr. Ward's time sheets for the 2008-2009 school year reflect that he routinely claimed that he worked on Tuesdays and Wednesdays. Mr. Ward worked as a substitute teacher for another teacher at HACC on Tuesday, January 27, 2009. He was not authorized to work on any other Tuesday or Wednesday during the 2008-2009 school year.

11. Mr. Schiavo brought the matter to the attention of the principal of HACC, Linda Lopez. Ms. Lopez asked Mr. Schiavo to investigate further.

12. After talking to some of the teachers who had classes on Tuesdays and Wednesdays, Mr. Schiavo concluded that Mr. Ward had falsified his time sheets.

13. Mr. Schiavo confronted Mr. Ward, but Mr. Ward was unable to provide an explanation for his time sheets. Mr. Ward left HACC and never returned to his teaching position at HACC.

14. The matter was then referred to Petitioner's Special

    
    

    Investigative Unit (SIU), where it was assigned to Detective Marc Elias.

15. On Friday, May 1, 2009, Mr. Elias met with Mr. Ward at WHS and served a Notice of Investigation which contained the following notice:

    This correspondence is provided as a formal notice of investigation into a complaint received in this office regarding allegations of theft of services while you were a part-time teacher at [HACC].

    
    

16. On Monday, May 4, 2009, Mr. Ward came to the SIU office and gave a statement to Mr. Elias. Prior to making the statement, Mr. Elias read to Mr. Ward his Miranda rights and explained them to him. Mr. Ward, under oath, stated that he understood his Miranda rights and gave a voluntary statement. Mr. Ward clearly, and unequivocally, admitted that he had knowingly and willfully included hours on his time sheets that he had not worked.

17. Mr. Elias showed Mr. Ward the original time sheets and Mr. Ward admitted to each false entry.2

18. On May 8, 2009, Mr. Ward came to the SIU office and tendered to Mr. Elias a certified check in the amount of

    $5,800.40. When he tendered the check, Mr. Ward thought that the amount of the check equaled the amount of the overpayment. On May 8, 2009, Mr. Ward and two employees of the SIU signed and dated the following acknowledgment:

    
    

    This is to acknowledge receipt of a check in the amount of $5,800.40 received [sic] from Timothy Ward. Acceptance of these funds does not release you from future obligations that may be discovered as a result of this investigation. Additionally, acceptance of these funds does not waive our right to prosecute.

    
    

19. Mr. Ward received compensation to which he was not entitled based on his timesheets. Mr. Ward entered on his time sheets a total of 232.47 hours he had not worked. Mr. Ward received a total of $4,252.66 for those hours he had not worked.3 Mr. Ward acknowledged to Mr. Elias that his actions constituted grand theft.

20. Criminal charges were pending against Mr. Ward as of the date of the formal hearing.

21. At the formal hearing Mr. Ward claimed that Mr. Elias had offered him a deal and that the statement he gave Mr. Elias was a result of that deal. Mr. Ward claimed that the deal provided for him to admit his wrongdoing in his statement, repay the money he had taken for work he had not performed, and forfeit his position at HACC. In exchange, Mr. Ward would not lose his teaching position at WHS, and he would not be criminally prosecuted. Mr. Elias denied the existence of such a deal. The undersigned finds Mr. Ward's claim of a deal to lack credibility while finding Mr. Elias's denial of such a deal to be credible.

    
    

22. At the formal hearing, Mr. Ward claimed that he had worked some hours that are part of the total of 232.47 hours at issue in this proceeding as a substitute teacher at HACC. He was unable to identify those hours. This claim, which is contrary to the sworn statement Mr. Ward gave to Mr. Elias, lacks credibility and is rejected.

23. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.4

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

25. Because the Petitioner seeks to terminate Respondent’s employment and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in its Administrative Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

    Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

26. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely

    
    

    than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

    Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

    
    

    quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

    
    

27. Section 1012.33(4)(c) sets forth grounds for the termination of a teacher's employment contract. Those grounds include immorality, misconduct in office that has been so serious as to impair his effectiveness within the school system, and/or criminal acts of moral turpitude. Those are the grounds set forth in paragraph 7 of the Administrative Complaint (quoted in the Preliminary section of this Recommended Order).

28. The following definitions are set forth in Florida Administrative Code Rule 6B-4.009:

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual’s service in the community.

       
       

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

       
       

       * * *

       
       

       (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

29. Based on the foregoing definition of the term, to prove that Respondent is guilty of immorality, Petitioner must establish by a preponderance of the evidence that Respondent's conduct: (1) is inconsistent with the standards of public conscience and good morals, (2) is sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual’s service in the community, and (3) has impaired the individual’s service in the community.

30. Based on the foregoing definition of the term, to prove that Respondent is guilty of misconduct in office, Petitioner must establish by a preponderance of the evidence that Respondent’s conduct: (1) violated the Code of Ethics and the Principles of Professional Conduct; and (2) impaired his effectiveness in the school system.

31. Respondent has admitted that he committed grand theft. section 812.014 defines theft as follows:

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another

       
       

       with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

    
    

32. In alleging that Respondent is guilty of misconduct in office, Petitioner relies on Florida Administrative Code Rule

    6B-1.001, which sets forth the Code of Ethics of the Education Profession in Florida, in relevant part, as follows:

    (3) 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.

    
    

33. In alleging that Respondent is guilty of misconduct, Petitioner also relies on Florida Administrative Code Rule 6B- 1.006, which sets forth the Principles of Professional Conduct for the Education Profession in Florida and provides, in relevant part, as follows:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.

    
    

    * * *

    
    

    1. Obligation to the profession of education requires that the individual:

       
       

       1. Shall maintain honesty in all professional dealings.

    
    

    * * *

    
    

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

    
    

34. Because of the amount of money involved, Respondent committed grand theft, which, pursuant to section 812.04(2)(c), is a third degree felony.

35. Respondent willfully and knowingly used falsified time sheets to obtain money to which he was not entitled. These acts, committed over the course of several months, showed a pattern of depravity and deceit.

36. Theft and fraud are crimes involving moral turpitude, within the meaning of section 1012.32(2)(d). See Palm Beach

    Sch. Bd. v. Rahey, Case No. 10-1525 (Fla. DOAH Nov. 10, 2010) (recommendation that a teacher be terminated for theft) and Sch. Dist. of Palm Beach Cnty. v. Woessner, Case No. 97-2582 (Fla.

    DOAH July 30, 1997)5 (recommendation that a teacher be terminated for crime involving moral turpitude after breaking into a trailer and "trashing it" and stealing a credit card and using it to make purchases in excess of $300.00).

37. In this proceeding, there was no direct evidence that

    
    

    Respondent's conduct has impaired Mr. Ward's service in the community (as required by the definition of immorality) or that his conduct has impaired his effectiveness in the school system (as required by the definition of misconduct in office.)

38. Based on the severity of the offense, the nature of the fraud, and the duration of the fraud, the undersigned draws the inference that by his conduct, Mr. Ward's service in the community and his effectiveness in the school system have been impaired. The drawing of such inferences is appropriate for a trier of fact. See Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d

    492 (Fla. 5th DCA 2000), Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000), and Summers v. Sch. Bd. of Marion Cnty, 666 So. 2d 175 (Fla. 5th DCA 1995).

39. Petitioner has proven by a preponderance of the evidence that it has grounds to discipline Respondent's employment on the grounds of immorality, misconduct in office, and moral turpitude, as alleged in paragraph 7 of the Administrative Complaint.

40. In paragraph 8 of the Administrative Complaint, Petitioner alleged that Mr. Ward is no longer eligible for employment pursuant to section 1012.315, which disqualifies person convicted of certain crimes of working as a classroom teacher. While grand theft is one of the enumerated crimes, Mr. Ward had not, as of the date of the formal hearing, been

    
    

    convicted of that crime. Consequently, Petitioner failed to establish the grounds alleged in paragraph 8 of the Administrative Complaint.

41. Based on the severity of the offense, the nature of the fraud, and the duration of the fraud, the undersigned concludes that Respondent's employment should be terminated.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on immorality, misconduct in office, and moral turpitude.

DONE AND ENTERED this 6th day of January, 2011, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2011.

ENDNOTES

1 There were inconsistent determinations as to the total amount of hours that Mr. Ward claimed to have worked, but did not. There were also inconsistent estimates or determinations as to the amount of the overpayments. Mr. Schiavo estimated that

Mr. Ward had been overpaid in the total amount of $5,486.80. Ms. Doody estimated that the overpayment was approximately

$4,500.00. As will be discussed below, the correct total of the number of hours he claimed to have worked but did not is 232.47 and the total amount of the overpayment, factoring in the payroll deductions that had been made, is $4,252.66.

2 Mr. Elias photocopied the original timesheets after he reviewed the originals with Mr. Ward. Mr. Elias kept the photocopied timesheets and returned the originals to HACC. During discovery, Mr. Ward requested the opportunity to review the original timesheets. The original timesheets could not be located. Photocopies made by Mr. Elias were admitted into evidence pursuant to section 90.953, Florida Statutes, on the basis of Mr. Elias's testimony that he reviewed the originals with Mr. Ward and that his photocopies accurately depict the originals as entered by Mr. Ward.

3 Mr. Ward was subsequently reimbursed for the difference

between what he paid ($5,800.40) and what it was determined that he owed ($4,252.66).

4 The Joint Pre-Hearing Stipulation filed by the parties stipulated to the following in paragraphs 8 - 11 of section E (Statement of Stipulated Facts):

1. The School Board's Professional Standards Committee found probable cause that [Mr. Ward] had engaged in theft and recommended that he be terminated from his employment.

   
   

2. After a pre-disciplinary conference, the Superintendent recommended [Mr. Ward's] termination from employment.

   
   

3. In June of 2010, the School Board agreed with the recommendation and suspended [Mr. Ward] from his employment, without pay, pending a final resolution of the matter.

   
   

4. [Mr. Ward] requested a Chapter 120 hearing.

5 The DOAH docket does not reflect the entry of a final order in this case.

COPIES FURNISHED:

Mr. James F. Notter, Superintendent Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza, 7th Floor

100 Southeast Third Avenue Fort Lauderdale, Florida 33394

Timothy Ward

829 Northwest 81st Avenue Plantation, Florida 33324

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 10-008920TTS

Orders for Case No: 10-008920TTS