Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Introduction At all times relevant hereto, respondent, Willie Mae Johnson, held Florida Teacher's Certificate Number 276107 issued by petitioner, Betty Castor, as Commissioner of Education (petitioner). The certificate covers the areas of elementary education and administration for the period July 1, 1977 through June 30, 1992. The periods of time relevant to this controversy are the spring of 1982 when respondent was employed by the School Board of Hillsborough County (Board) as a curriculum intervention specialist (CIS) at Just Sixth Grade Center (JSGC) in Tampa, Florida and 1986 through 1988 when respondent was employed by the Board as the principal of Bryan Elementary School (BES) in the same city. The amended complaint, as further amended at hearing, charges generally that respondent, while principal at BES, converted school funds to her own personal use on several occasions, made an unwarranted accusation against two teachers, hindered a school investigation, ordered with school funds numerous publications for her own use, and falsified school records. The complaint alleges further that respondent misused school funds while employed as a CIS at JSGC in March and May 1982. Respondent has denied all such charges. To support or refute the above allegations, the parties presented the testimony of twenty- three witnesses, including respondent. As might be expected, sharply conflicting versions of the events were given. In reconciling these conflicts, the undersigned has accepted the more credible and persuasive testimony of those witnesses. That testimony is embodied in the findings below. School Year 1981-82 The amended complaint (paragraph 4) alleges first that during March and May 1982 Johnson "mishandled funds by failing to maintain bank records or documentation and by drawing two checks on the school's Courtesy Club account for her own personal use." Respondent served in the position of a CIS at JSGC during school year 1981-82. Her principal was Lois Bowers. One of Johnson's responsibilities was to serve as treasurer of the school's "Courtesy Club" (club), a club which maintained a small bank account for the purpose of buying miscellaneous school related items. As treasurer, Johnson had the authority to sign checks on behalf of the club. It was also her responsibility to keep the books in order and balance the account as needed. The treasurer had the authority to designate other persons to write checks, and Johnson claimed, without contradiction, that one Laura Pilligi was so authorized. Indeed, Pilligi's signature appeared on at least one of the checks written on the club account during the spring of 1982 but this fact is not dispositive of the allegation. Johnson's tenure as treasurer of the club ended in June 1982. In the late fall of 1982 Bowers had reason to believe that money might be missing from the club's bank account and that the shortage might have occurred while Johnson was treasurer. Bowers confronted Johnson, questioned her about the missing funds, and requested copies of certain missing checks. Johnson initially denied any wrongdoing and failed to produce those cancelled checks that were missing from the club's records. However, in early 1983 Bowers obtained from the bank copies of checks written on the account during Johnson's stewardship of the club. They reflected that check number 1050 in the amount of $85 was written on March 8, 1982 to Progressive Realty and Appraisal, Inc. for an "appraisal" and check number 1054 in the amount of $10 was written on May 26, 1982 to United Insurance Company of Tampa for "insurance". Both checks carried what purported to be the signature of Johnson. After being confronted with those items, in February 1983 Johnson admitted to Bowers that she had written those checks for non-school purposes because she "needed the money." Although Johnson contended she "cleared" with Bowers the larger of the two checks at the time it was written, Bowers disputed this, and Johnson's testimony is not accepted as being credible. After being requested by Bowers on several occasions to reimburse the money, Johnson finally repaid the money more than a month later. Bowers did not take disciplinary action against Johnson because she desired to "keep her own house in order" and attributed the incident to "poor judgment" on the part of Johnson. There is no record of the matter in Johnson's personnel file. The use of such money by Johnson for her own personal use was improper. School Year 1986-87 Paragraphs 2 and 3 of the amended complaint concern the alleged misuse of school funds by Johnson in November and December 1986. It is first alleged that in November 1986 Johnson "cashed a check on the school's checking account for $70.28 and kept the money for her own personal use." It is also alleged that in December 1986 Johnson "removed $85 in cash from the school's bank deposit bag" and later "requested the secretary to attempt to reconcile the book's without having to replace the missing money." Johnson became principal of BES on February 6, 1986. From that time until February 1988 one Mary Lou Wallace was Johnson's secretary. Wallace's responsibilities included maintaining and performing the bookkeeping for all internal funds, including petty cash, a small cash fund (around $125) kept on hand to reimburse teachers for purchasing small items for classroom use. Wallace was described by one teacher as "inefficient" and by another as lacking in bookkeeping skills. Under then existing school policy, after a teacher made a purchase, the teacher would bring the receipt to Wallace and be given a cash reimbursement. At the end of the month, or whenever a number of receipts had accumulated, Wallace would send the receipts to the area office with a request for reimbursement of those funds. A reimbursement check was then prepared by the area office and made payable to Johnson who was supposed to cash the check and place the proceeds in the petty cash fund. In November 1986 Wallace gave Johnson a reimbursement check in the amount of $70.28 made payable to Johnson. If school procedure had been followed, Johnson would have cashed the check and returned the cash to Wallace for deposit in the petty cash account. After Johnson cashed the check but did not return the money, Wallace asked Johnson for the money. Johnson told Wallace the money was in a folder on her desk and she would give it to Wallace later. After asking Johnson for the money on many occasions but with no success, Wallace quit asking because she knew she did not have to balance the account until the end of 1986. On December 20, 1986 BES closed down for the Christmas holidays and did not reopen until January 2, 1987. In accordance with school procedure, Wallace gathered all cash, except that in the petty cash account, various checks and some deposit slips, and placed them in a sealed money bag kept in Johnson's office safe. Because of a lack of time, Wallace did not deposit the cash and checks in the bank, as she should have, but kept the bag in the safe over the school holidays. The cash totaled around $85, but the entire deposit was for $187.62. When Wallace returned to school on January 2 she found the money bag missing from the safe. When she asked respondent about the missing money bag, Johnson told her not to worry, that she (Johnson) had it, and it would be returned by the end of the week. On Friday, Johnson again gave the same answer to Wallace. Around the end of January, and after repeated requests for the money by Wallace, Johnson opened up her desk drawer and showed Wallace the money bag with a broken seal. However, she explained that she did not have the money to replace the missing funds and instructed Wallace to try to think of a way to reconcile the account even though the money was missing. Wallace declined to do so. When the missing money had still not been replaced by early February 1987, Wallace overheard Johnson on the telephone one day telling the caller that her husband was going to donate a new lawn edger to the school. Wallace voluntarily suggested to Johnson that, rather than donating the edger, Johnson ought to sell the edger to the school and use the proceeds to replace the missing money. Johnson agreed this was a good idea and instructed Wallace to follow through with the plan. Wallace then prepared a memorandum to the area office requesting permission for Johnson to purchase an edger. After approval was obtained from the area office, on February 27, 1987 Johnson was authorized to receive $199.95 from school funds as reimbursement for the edger. The money was immediately given to Wallace who redeposited $187.62 (including $85 in cash) and replaced the shortage in the petty cash account. The full details of the complicated edger scenario, which constitutes a separate charge, is recounted below. By using the school money ($155.28) for her own personal use, keeping the money bag in her desk drawer, and delaying the deposit for more than two months, Johnson violated school procedures. In a memorandum authored by respondent on April 14, 1988, and sent to the assistant superintendent for instructional personnel, Johnson denied that she had kept the $70.28 in petty cash funds "for any extended period of time". As to the delay in not depositing the $187.62 until February 27, 1987, Johnson blamed her secretary (Wallace) who "didn't understand that the deposit slip could have been written again and the remaining amount deposited before the February date." The use of the $85 out of the sealed money bag was blamed on "poor administrative judgement" on Johnson's part but she maintained that the money was spent on "custodial supplies for cleaning the cafeteria." She did, however, accept responsibility for the deposit delay. At hearing, respondent denied taking the $70.28 from petty cash and claimed she repaid that amount only because Wallace had told her that amount was "outstanding" in the account. She also continued to maintain that she used the $85 in the money bag for maintenance purposes and gave that amount to Mr. Inman, a custodian, to purchase "stripper" to remove wax from the cafeteria floors. Even though she knew that school regulations called for her to obtain a receipt from Inman for the supplies and work, she could not produce a receipt. In addition, Inman no longer works for the Board and his whereabouts are unknown. This version of the events is rejected as not being credible. Paragraph 4 of the amended complaint alleges that during February 1987 Johnson "requested and received permission to purchase an edger for the school using internal account funds", was issued a check on February 24, 1987 in the amount of $199.95 made payable to respondent, and "cashed the check and did not purchase the edger which had been authorized but instead retained the funds for her own personal use." The complaint goes on to allege that when a school auditor inquired as to the whereabouts of the edger in January 1988, even though the "Property Control Office had no record of the edger", respondent "indicated it was being repaired." However, the "repair shop"... had no record of the edger." Finally, it is alleged that "respondent produced a receipt from Sears as proof of purchase", that the receipt was "backdated to February 24, 1987", that Sears "has no record of the purchase", and that respondent twice "produced an edger to investigators as the one purchased at Sears on February 24, 1987 (but) the edger produced by respondent was the brand name Penncraft which is distributed by J. C. Penny, Inc., not Sears." As noted above, Wallace prepared a memorandum on February 16, 1987 to Peter B. Davidson, area director, requesting authorization to purchase an edger for the school. No mention was made that Johnson intended to purchase the edger from herself, something prohibited by school policy. In addition, on February 23, 1987, she submitted a check requisition form for $199.95 for the purchase of the edger from herself but failed to attach a receipt to the form, as is Board policy. On February 27, Davidson granted the request by writing the word "Approved" on the memorandum and returning the same to Johnson. He also wrote "Check with Arnold Vance regarding recommended make and model." Vance was the area custodial supervisor whose job was to insure that any equipment purchased met school specifications and was of a type that could be repaired by the school repair shops. Johnson did not follow this instruction. In mid-January 1988, or a year later, and just after she had received notice that BES was about to be audited, Wallace decided to report the missing money and edger affairs to Davidson. Davidson promptly ordered the Board's internal auditors to conduct an investigation. This was accomplished the same month. During the course of the audit, the supervisor of auditing, Debbie Hannon, found that the check made payable to Johnson for an edger was not supported by a receipt. In addition, the edger could not be located by Hannon nor did property control have a record of that item. Johnson claimed that the new edger was being repaired at the school maintenance department. However, a check of maintenance shops revealed that they had not received an edger from BES. In her audit findings prepared on January 22, 1988, Hannon directed Johnson to respond in writing where the edger was located, to advise why there was no receipt, and to state why a purchase order was not issued in order to take advantage of the school's tax exempt number. In a letter dated January 28, 1988 from Johnson to Hannon, Johnson gave the following response to Hannon's questions concerning the missing edger, sales receipt and tax exempt sale: As per the lawn edger: I talked with the custodian about the whereabouts of the lawn edger, he informed me that it was in the shop, and that is what I told you. He later informed me that he brought the lawn edger to the front steps and that you informed that it was not necessary for you to see it. As far as the receipt, I did not have one at the time I purchased and asked if I could get a copy of the receipt. I was able to get a copy of the receipt for auditing purposes. I am aware that no purchase order was written up, and am also aware that since I made the purchase myself, I did not present my tax exempt number and was not charged taxes on this item. I do hope this is sufficient documentation as to (the) lawn edger. If not please feel free to confer with me. As a new principal I am very open to any suggestions that will be helpful to me as needed to improve my documentation in future audits. It should be noted that at no time did Johnson advise Hannon that the purchase of the edger was related to the replacement of the missing monies. Respondent produced for Hannon a Sears sales receipt which purported to evidence her purchase of a 2.5 horsepower gas powered lawn edger from a Sears store in the University Square Mall in Tampa. Johnson had just obtained the receipt from a Sears clerk by the name of Buciglia after telling him she needed it for "auditing" purposes. The upper portion of the receipt reflected a sales price of $199.99, a sales date of February 27, 1987, and respondent's name, Mac Johnson, as purchaser. The bottom portion of the receipt reflected that the item was stock number 79651 and carried BES's tax exempt number. Hannon thereafter attempted to ascertain the validity of the receipt by telephoning the general manager of the store. She learned it was invalid for the reasons set forth below. According to the general manager of the store where Johnson claimed she made the purchase, and who testified at final hearing, whenever a customer purchases merchandise, such as an edger, the clerk fills out a six-copy sales check. The tickets are "rung up" on the cash register and authenticated with one copy given to the customer. Another copy is entered into the computer system while another is used to post the transaction to a user book, which contains the name, address and telephone number of all purchasers of gasoline powered lawn equipment, date of purchase, stock number of the merchandise and sales clerk's name. It was standard policy during the relevant years in question that a tax exempt number be used on any purchase of equipment by school personnel. This enabled the school to be exempted from paying the state sales and use tax. When such a purchase was made at the Sears store, special store instructions required that the clerk write the tax exempt number on the six-copy sales slip along with the name of the organization that was purchasing the item. Because a tax exempt number could not be used by an individual, the purchase necessarily had to be in the name of the organization. Finally, each tax exempt purchase at the store required the personal approval of a second staff clerk. Through the testimony of a handwriting expert, it was established that the writing on the top of the receipt was filled in by an unknown person while the tax exempt number on the bottom of the receipt was written by respondent. The Sears manager established that the receipt was invalid because it did not comply with the procedures described in findings of fact 18 and 19. In addition, the serial number on the receipt would mean that the purchase was for a "Craftsman" edger, a brand name sold by Sears. However, the model produced by Johnson for Hannon's inspection was an old 1974 model carrying tide brand name "Penncraft", a model that was once sold by J. C. Penny's stores but not by Sears. Finally, a review of the Sears user book for the years 1986, 1987 and early 1988 reflected that no one with respondent's name, or that of her husband, Calvin Johnson, had purchased a gas powered edger from the Sears store. When the invalidity of the receipt was established, Davidson made a visit to BES for the purpose of seeing the edger. He was taken to a storage building by the head custodian and shown two edgers, one approximately twenty years old while the other was a Penncraft model, a model sold by J. C. Penny's stores. At that point, Johnson admitted for the first time that she had purchased the edger from herself. Later on, the assistant principal for instructional personnel, Dr. David G. Binnie, became involved in respondent's investigation. On March 2, 1988 he visited BES and asked Johnson to show him the edger. She took Binnie to a storage shed and showed him two edgers. However, she pointed to a Penncraft model as the one she had purchased at Sears. Thereafter, Binnie requested a written explanation as to all matters under investigation, including the edger affair. In a responsive memorandum prepared on April 14, 1988, Johnson agreed the purchase of the edger from herself "was not in my best judgement" and that she was "confused/confounded when discussing the situation with (her) Area Director." However, she held fast to the story that she "obtained (a receipt) from the store clerk for the edger that I purchased." She added that she regretted the entire situation. At hearing, Johnson acknowledged that the explanation given to Debbie Hannon in January 1988 was not true. Thereafter, she recounted the following version of events. Her husband, Calvin, had purchased an edger at Sears for $239 and, with his permission, she had carried it to school in February 1987. She also claimed that she telephoned the area custodial supervisor to verify that the equipment was in compliance with specification and maintenance requirements. When she returned to Sears a year later to get a receipt, the same model was then on sale for $199.99. On the ground she needed a receipt for "auditing purposes", she convinced a Sears salesman to make up a receipt in that amount. She also contended the salesman ran the receipt through the cash register to validate the same. To partially corroborate that story, Calvin testified he purchased with cash an "old black and white Sears edger" in 1986 or 1987 at University Mall for around $230 or $240. Later on, he placed the edger in his wife's car and she carried it to work. However, he claimed he lost the sales receipt and owner's manual, and he remembered the Sears clerk did not fill out a lengthy sales receipt or make a user book entry, both of which the general manager stated were required for every purchase. This version of events is not accepted as being credible. Respondent also presented the testimony of Ester Mae Pugh whose husband, now deceased, once worked at the BES maintenance shop. Pugh recalled one day in 1987 that her husband brought home from school an edger for repair purposes. After repairing the same, he placed it in the back of his pickup truck but found it missing the next morning. However, there is no competent evidence to establish that the edger brought home was the one allegedly purchased by respondent's husband and then sold to the school. Respondent was also charged in paragraph (7) of the complaint with having "ordered the following publications using school funds intended for the library: Newsweek, Wall Street Journal, Florida Trend, Time, Savvy, Ebony and Jet." It is further alleged that "(u)pon delivery, Respondent repeatedly took these publications home for her own personal use." The illicit conduct is alleged to have occurred while Johnson was principal at BES. During school year 1987-88, BES received an allocation (approximately $450) that was specifically earmarked for purchasing periodicals and newspapers for the school library. These funds were maintained in a special account known as the library account (number 6020) and were not to be used except for ordering magazines and periodicals for the library's use. A decision on how to spend the money was based on the collective judgment of the faculty, principal, CIS and library media specialist, Patricia Mixon. In all cases, however, Mixon had the responsibility for personally ordering all publications. Although there was evidence that on one occasion respondent asked the faculty for suggestions on magazines to order for the teacher's lounge, this is irrelevant to the issue of whether respondent had authority to purchase magazines from the library fund. Mixon established that in 1987 someone, other than herself, had ordered $180 worth of periodicals and magazines using library account funds. She was not notified of any purchase nor did any of the periodicals end up in the library. However, a few periodicals were seen in the teacher's lounge. Petitioner's exhibit 4 contains copies of checks written principally on the library account. A few represent purchases from a general miscellaneous account. All checks carry the signature of respondent and she later acknowledged, that she had placed those orders. This was corroborated by Johnson's secretary who mailed the orders at Johnson's direction. When the magazines were received, the secretary placed them in respondent's box. Although Johnson had the authority to order magazines and periodicals when needed, respondent's authority was limited to ordering them from a different internal account and not from the library account. Moreover, if magazines were ordered, they should have been ordered from EPSCO, a magazine jobber used by the Board. Respondent did not use EPSCO. By ordering $180 worth of magazines with library account funds, respondent violated school procedure. The charge that respondent took the above publications home for her own personal use cannot be established by the evidence of record. None of petitioner's witnesses saw respondent leaving the school premises with the magazines in question, and no witness testified that the magazines were seen in Johnson's home. Although respondent's secretary contended she saw respondent place a magazine in her briefcase one day, this is insufficient to establish that the illicit conduct occurred. Further, the fact that several witnesses, including the internal auditors, did not see the magazines in the teacher's lounge is insufficient to raise an inference that the magazines were actually at respondent's home. The amended complaint charges further in paragraph (8) that in December 1987 respondent "assigned a full time teacher to administrative duties and secured a substitute teacher to take over the teacher's class for approximately five (5) days", that respondent "did not inform the teacher in question that the teacher's salary for those days was being deducted from her sick leave days," and that respondent "then falsified the sick leave claim form to read that the teacher in question was absent due to illness and by signing on behalf of the teacher in question." The teacher in question was Dorothy Harmon. Respondent, and other administrators, considered Harmon to be lacking in instructional skills. Indeed, at hearing the assistant superintendent described Harmon as "a poor teacher". After Johnson's efforts to improve Harmon's skills were unsuccessful, Johnson directed the assistant principal to put pressure on Harmon to either retire or seek a transfer to another school. This was accomplished through various evaluations and observations, and Harmon eventually transferred to another school and then retired. Prior to her transfer, however, Johnson reached the point where she did not want Harmon teaching the children during the last week before Christmas holidays, particularly since Harmon's class included low achievers and students with attendance problems. Harmon had been ill the previous few days and a substitute teacher had done an excellent job. Johnson accordingly placed Harmon on administrative leave for the last week before the holidays and secured the same substitute teacher to teach Harmon's class. However, Harmon reported to school on all or parts of three of those days. This created a problem since a substitute teacher cannot be paid unless the teacher is absent from work. Respondent then directed Payne, the assistant principal, to put in a sick leave form on behalf of Harmon. When Payne questioned this order, respondent answered that Harmon would never know about the leave. Thereafter, a "claim for sick leave" form for Harmon was prepared by Payne reflecting that Harmon was absent on December 10, 11, 14, 15, 16, 17, and 18, 1987 due to illness. It should be noted that Harmon was actually on sick leave on December 10 and 11. Therefore, the "bogus leave" was for the week of December 14. The form carries what purports to be Harmon's signature and the approval signature of respondent. Next to Harmon's signature were the initials "M. J.", which are respondent's initials. Respondent readily concedes that she signed the form without Harmon's knowledge and that her actions were wrong. However, she contends that she intended to take full responsibility for the action since she placed her initials next to the signature. She also contended that she prepared the form in the best interests of the children since they were receiving inadequate instruction from Harmon. Even so, Johnson's conduct constituted a violation of school procedure. Paragraph (9) of the amended complaint contains the charge that during school year 1987-88 respondent "was notified by a teacher that a student in her class did not meet the age requirements for kindergarten", that "(n)o corrective action was taken", and that "(s)ubsequently, the child was retained in kindergarten the next school year." There is no allegation in the complaint that respondent falsified her school records regarding this student or ordered other school personnel to do so. Therefore, evidence pertaining to those matters is irrelevant and will be disregarded. To determine the number of teachers (units) to be assigned to a particular grade level in a school, the Department of Education uses the number of students in attendance at a school during the first twenty days of a school year. For example, in school year 1987-88, the kindergarten level of instruction received three units if, on the twentieth day, a school had 63 or more students in that grade level. An enrollment of less than 63 students reduced the allocation of units by one. During the first part of each school year, it was the responsibility of each teacher to count the number of students enrolled in his or her class and report that count to the principal's office. A secretary in the office then tallied the total number of students by grade level and telephoned that number to the area superintendent who in turn relayed the information to a bureaucrat in Tallahassee. Due to such factors as illness and changes of residence by the students, some confusion always existed during the first twenty days over a student's true status. For this reason, and because student counts were so important, a principal was reluctant to remove a student from the rolls until after the twentieth day, when counts no longer mattered. In order to qualify, age-wise, for kindergarten, a child must have attained the age of five by September 1 of the school year. A student by the name of A. J. enrolled in kindergarten at BES in September 1987 but, as it turned out, she did not turn five years old until September 15, 1987. Thus, the student missed the September 1 cutoff date by two weeks and should not have been enrolled in school. Although a data processing clerk, Karen Burnett, had the responsibility of enrolling students and rejecting any who did not meet residence and age requirements, Burnett failed to initially discern the fact that A. J. was underage. However, a screening process involving a diagnostician, the student's teacher and the assistant principal, Janis Payne, occurred sometime within the first eight weeks of the school year and A. J.'s age was noted at that time. Even so, Burnett established that respondent became aware of A. J.'s situation within the first twenty days but told Burnett to do nothing until after the twentieth day. By not taking corrective action at that time, Johnson was in violation of school policy. Finally, it is true that the same student remained in school for the entire year and was required to repeat the same grade the following year. However, Burnett acknowledged that she, and not Johnson, forgot to have the student withdrawn after the twentieth day. The next charge in the amended complaint is found in paragraph (10) and alleges that "on or about March, 1988, respondent . . . interfered with an investigation of respondent's performance by instructing a teacher how to respond to the Area Director's questions." Although the record is replete with instances of respondent changing her story from time to time, particularly after administrators found holes in each story there is no evidence that fits the allegation in the complaint, namely, that Johnson "instruct(ed) a teacher how to respond to the Area Director's questions." Indeed, the charge apparently stems from certain allegations by Dr. Binnie, as memorialized in respondent's exhibit 6, but no evidence was adduced to support that charge. The final charge is found in paragraph (11) of the amended complaint and alleges that respondent, while principal at BES during school year 1987-88, "inappropriately charged that two teachers in her employ were having a lesbian affair without having any substantiating facts to support such a claim." The complaint goes on to state that the two women were in fact "married with children" and that respondent "instructed a member of her staff to keep an eye on the alleged `lesbians' and even instructed a member of her staff to call the home of one of the teachers in order to find out additional information regarding any alleged lesbian affair." To preserve the confidentiality of the names of the two teachers in question, they will be referred to by their initials, G. W. and M. N. The former was a kindergarten teacher's aide while the latter was a sixth grade teacher. The charge arises out of statements allegedly made by respondent to certain school personnel. One, Janis Payne, the assistant principal, recalled Johnson telling her that it was "not natural" the way M. N. looked at G. W., and that she could not understand why M. N. would want to leave an attractive man (her husband) for G. W. Payne was also told by respondent to "keep tabs" on G. W., and on one occasion she was asked to go to M. N.'s classroom and see if G. W. was there. However, respondent never used the word "lesbian" when discussing the matter. Payne was also present when respondent told her secretary to telephone G. W.'s home and ascertain if G. W. was still living with her husband. The secretary did not make the call. While in the presence of her secretary, respondent commented that G. W.`s husband was gone all the time and that the two women were "together too much to be normal." On another occasion, after respondent observed the two go into a portable classroom together, Johnson remarked that such conduct was "sickening". Again, however, the words "lesbian" and "gay" were never used. Through the testimony of another teacher, it was established that "it was just common talk around the school" that "there was a lesbian affair going on." Even so, it may be reasonably inferred that respondent was inappropriately perpetuating a rumor that the two employees were engaging in a lesbian affair, particularly since at least two bystanders interpreted respondent's comments in that context. Respondent denied that she had made comments that the two were having a lesbian affair. She contended that she was simply concerned that they were spending too much time out of the classroom and not attending to their duties. Further, since one was a kindergarten teacher's aide and the other a sixth grade teacher, they had no reason to be conferring with each other during class hours. Respondent also denied asking her secretary to telephone G. W.'s house or asking Payne to keep tabs on the two. However, these assertions do not belie the more credible and persuasive evidence that respondent was perpetrating a rumor about the two employees. Loss of Effectiveness as a Teacher According to Dr. David G. Binnie, who was accepted as an expert in education administration, respondent's effectiveness as an administrator has been reduced because of her conduct in this affair. He pointed out that respondent exercised an "incredible pattern of poor judgment" and that her credibility and trust have been destroyed. As a teacher, Dr. Binnie opined that her effectiveness has likewise been impaired since her leadership, management and instructional skills have been reduced. However, he added that the specific allegations against respondent are not widely known by the community since the newspaper media did not report on the full scope of charges. Consequently, he has received no complaints from parents or students regarding her continuing employment as a classroom teacher. He characterized her effectiveness as a teacher with her colleagues to be only "somewhat negatively impacted" because of her conduct. Although a brief story on the matter appeared on a local television station, it may be reasonably inferred that respondent's credibility and trust in the eyes of the general public, students and their parents have not been impaired. Mitigating factors presented by respondent Respondent has been a classroom teacher for over twenty years in some five states. She holds both a bachelor degree and a master's degree as well as credits towards her doctorate. Prior to the school audit in January 1988, respondent had received satisfactory evaluations as both a teacher and a principal. While not binding on petitioner, it is of some persuasion that the Hillsborough County School Board did not see fit to terminate respondent as an employee after the alleged misconduct occurred but rather chose to reduce her from a principal to a classroom teacher. She has functioned well in that position since her reduction and has received good evaluations from her supervisor. Respondent desires to continue as a teacher and maintains she has already suffered sufficient monetary and professional punishment in this matter. She has expressed regret over the entire episode and acknowledges that she used extremely poor judgment in all facets of the case. She blames part of her problems on the fact that she had no training in bookkeeping and had to rely on an inexperienced secretary, Wallace. It should be noted that after this matter arose, the Board strengthened its on-the-job training for new principals, including additional training in basic bookkeeping and financial management skills. When Johnson assumed the position of principal, the Board did not require any financial background as a prerequisite to appointment and only offered limited training in Board fiscal policies and other management areas. Motion for fees and costs Based upon the pleadings filed in this cause, as well as representations of counsel during argument on the motion, it is found that on November 14, 1989 respondent's original counsel was authorized to withdraw as counsel in this cause. At the same time, the final hearing then scheduled on November 28 and 29 was rescheduled to commence at 9:00 a.m. on Monday, December 18, 1989. Respondent thereafter attempted to obtain new counsel and eventually met with her present counsel for the first time on December 4. A subsequent meeting was held on December 5. At that time, respondent's counsel advised Johnson that he would accept the case and became aware that a hearing was scheduled on December 18. However, a notice of appearance was never filed and counsel's signature did not appear on any document until December 15, 1989. On Friday, December 15, 1989, or the last working day before the hearing, a motion for continuance was filed by respondent's counsel, and a telephonic conference call with counsel was conducted by the undersigned at approximately 3:00 p.m. that afternoon. Although petitioner objected to the granting of the motion, the continuance was granted so that new counsel would have a reasonable opportunity to prepare for final hearing. In so ruling, the undersigned noted that, if the motion was denied, the prejudice to respondent outweighed the prejudice to petitioner, particularly since respondent's livelihood as a teacher was at risk and the charges herein were fairly complex and lengthy. However, the undersigned's order noted that the motion did not comply with the requirements of Rule 22I-6.017, Florida Administrative Code (1987) in that no "extreme emergency" existed as required by the rule. 1/ In his motion, counsel for respondent alleged that he was attempting to settle the case during the week prior to hearing but when settlement efforts failed, he filed the motion. In addition, he contended he was absent from his office for much of the week of December 4, needed further time to prepare for hearing and desired to take the depositions of certain witnesses. Because of respondent's delay in not filing the motion until the last working day before the hearing, counsel for petitioner contends he incurred costs in (a) preparing for the telephonic conference call, (b) utilizing time to contact witnesses who were already under subpoena to attend the final hearing scheduled the following Monday morning, and (c) paying the process server who had already served sixteen subpoenas. The amount of fees and costs associated with the above, and their reasonableness, have not yet been established. Neither the motion nor counsel offered a legitimate reason as to why the motion was filed on the last working day prior to hearing. During argument on the motion, counsel proffered that he thought the matter might settle and was out of town on other legal matters during part of that time. In response, petitioner's counsel represented that he advised respondent's counsel that he was continuing to prepare for trial in the event a settlement could not be reached. In addition, the record shows that no further discovery was undertaken by respondent's counsel between December 15, when the motion was filed, and January 4, 1990, when the continued hearing commenced. This was one of the grounds cited as a reason for the continuance. Under these circumstances, the motion may be said to have been filed for an improper purpose that had increased the cost of litigation by (a) causing unnecessary process server fees to be incurred and (b) requiring opposing counsel to expend time to advise sixteen witnesses that the hearing had been continued. Accordingly, reasonable fees and costs are justified as a sanction for such conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsections 231.28(1)(f) and (g), Florida Statutes (1987) and that her teaching certificate number 276107 be suspended for six months. RECOMMENDED this 8th day of May, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1990.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 3rd day of May, 2016.
The Issue Whether the Respondent, John Obrzut, should be terminated from his employment for reasons of incompetence and his alleged failure to advise the Superintendent of the Franklin County School District time and filing requirements under the above-cited Statute, because of failure to submit required monthly reports to the School Board as well as for unauthorized absences.
Findings Of Fact On May 6, 1985, the Respondent entered into an employment contract with the Franklin County School Board for employment in the position of Finance Officer and Business Manager. The contract's term continued through June 30, 1986, with a commencing date of July 1, 1985. The contract provided for a probationary status for Respondent. The Respondent was provided with a copy of the job description for the Finance Officer/Business Manager position he accepted and contracted for at the time of his employment. That job description established that the individual directly responsible to the Superintendent and the School Board for all activities concerned with the financial operations of the school system was the Finance Officer/Business Manager, Dr. Obrzut. Superintendent Gloria Tucker interviewed Dr. Obrzut for this position and was especially concerned that he understand the duties he would have in that office because the School Board was experiencing financial difficulties at that time, primarily related to the disheveled condition of its records for the past several fiscal years due at least in part to previous mismanagement by those with Dr. Obrzut's responsibilities. The Respondent was informed that it would be necessary for him, as Finance Officer, to reconstruct portions of those records. Dr. Obrzut did not inquire regarding the specific status of the records during the time of his employment interview and once he became employed he found the problem to be considerably worse than he had expected. Ms. Tucker informed the Respondent that his duties would include keeping her advised of the "TRIM Bill" time requirements in order to meet the budget publication date of July 25, 1985, as required by that law. His job description also required him to prepare a monthly financial statement showing receipts, disbursements and the balance of funds available in the district budget. Additionally, on June 24, 1985, after he was hired, the Respondent was given the various task assignments, in writing, from the Superintendent. These involved: (1) gathering necessary data and preparing the budget amendment for the June 27, 1985 School Board meeting; (2) develop with Mr. Johnson's help the baseline data that would establish the "time-line" for reconciliation of the 1982-1983 and 1983-1984 budgets, which was one of the Respondent's two major priorities for June and July of 1985 because, given the disarray of its financial records, the Board had an immediate necessity to know what cash reserves it truly had on hand; (3) set up a time schedule concerning when final reports were due on each federal and State project and when that information would be available to the Superintendent, as well as to give the Superintendent a written report as to how the "time-line" would operate during July and August of 1985. (4) The Respondent was required to set up a written time schedule as when Department of Education reports were due so that no reports would be filed late. Assignment number 5 involved reviewing the requirements for budget preparation as stated in the law regarding time requirements (i.e. the "TRIM Bill"). The Respondent was to directly contact the County property appraiser concerning when tax millage information from his office would be ready for the budgeting process. The Respondent's past employment history involved various clerical, accounting and financial analyst positions for most of the last two decades, as well as substantial periods of time spent obtaining graduate degrees. His longest period of employment was four years with the Department of Transportation, where he supervised a clerical unit with a number of employees reporting to him. Prior to his employment with the Franklin County School Board, he had no experience as the overall supervisor of financial operations of any agency of government or a private enterprise. He had no experience with school finance procedures established under Chapter 237, Florida Statutes. On June 24, 1985, the Respondent was given the assignment involving task number 5 mentioned above, whereby he was to review the requirements for budget preparation as stated in the above- cited Statute regarding time requirements. He contacted the property appraiser concerning when the Superintendent and the Board might expect tax millage information from his office required for the budget process. The Respondent was also verbally instructed by the Superintendent at this same time to keep her informed of all specific dates required by the law concerning budget events. In the course of these verbal instructions, the Superintendent advised Dr. Obrzut that she was especially concerned about this because this was her first time to be involved in the budgeting process as a Superintendent of Schools. On June 25, 1985, Dr. Obrzut advised the Superintendent that he had called the Franklin County property appraiser's office and it provided him no information on the requirements for the budget process at that time, in the form of the tax millage information, but he expected advice from them on this subject on June 27, 1985. He also advised the Superintendent at this time that he expected to receive a planning document, with the time requirements for the budgeting process, in the mail from the Department of Education and also expected to receive a copy of it personally at a school financial officer's meeting in Tampa. Dr. Obrzut reviewed Section 200.065, Florida Statutes (the "TRIM Bill"), as requested by the Superintendent, but his testimony establishes that he has no recollection of making any notes or recollection concerning the sequence of events required by the Statute as deadlines in the budget preparation process. In any event, the Respondent had no further communication with the Superintendent concerning the budget time requirements. He subsequently learned that a copy of the planning document would also be mailed to the Superintendent and therefore simply assumed she would monitor the State's various budget planning event time requirements herself. He took no further steps to advise her of the various critical time deadlines. In fact, no one in the Franklin County School District administration was monitoring the budget time schedule of events because the Superintendent, whom the financial officer, Dr. Obrzut, directly reported to, was relying on Obrzut to do this. This fact, however, was discovered accidentally by Mr. David Johnson, a contract certified public accountant, who was performing an audit of the internal accounts of the various district schools. Mr. Johnson was meeting with the Superintendent concerning matters about the internal audit on a Wednesday in July 1985, when he inquired of her as to the status of the district's advertising of its forthcoming budget, as required by law. The Superintendent advised him that Dr. Obrzut was monitoring the schedule of events and deadlines concerning the budget preparation and advertising process. Mr. Johnson thereupon visited Dr. Obrzut at his office and retrieved from him the planning document that Obrzut had received from the Department of Education. Mr. Johnson informed the Superintendent that the budget must be completed and ready for advertising prior to the following Tuesday. This was the first time the Superintendent had learned of the immediately impending deadline for budget advertising as required by the above Statute. The Franklin County School District employees responsible for preparation of the budget then had to work through the entire weekend that ensued in order to timely complete the budget in time for the advertising deadline on Tuesday. The testimony of the Superintendent as well as Mr. Johnson, who has extensive experience in the field of educational finance and was accepted as an expert in that field, established that had that deadline been missed the Franklin County School District would have lost approximately $500,000 in tax revenues needed to fund its $3,000,000 operating budget. Dr. Obrzut acknowledged that he was responsible for ensuring that the federal cash advance reports were sent to the Department of Education in a timely fashion in order to ensure the continuous flow of funds to the district for the district's federally funded projects. He established that he prepared one of these reports himself and delegated the task of preparing the September 1985 report to one of his subordinate employees, Donna Ward. He admitted he did not monitor her work and ensure that the report was timely filed and did not learn of the fact that it had not been filed until the Superintendent informed him of that fact at the time she informed him she would recommend his dismissal. The report was delinquent at that time and the district had already ceased to receive federal funds because of that delinquency. David Johnson was accepted as an expert witness in the areas of accounting and Florida school finance. He worked for the Office of the Auditor General for three years and then spent several years in the capacity of a school Finance Officer. He is a certified public accountant and currently operates an accounting firm that renders accounting assistance to four school districts in Florida. Additionally, he serves as chairman of the Walton County School Board. Mr. Johnson was retained to assist Dr. Obrzut in reconstructing the ledgers and records for the fiscal years 1982- 83 and 1983-84. He was also asked to school Dr. Obrzut in the legal and regulatory requirements and accounting procedures attendant to the peculiarities of Florida school finance. Mr. Johnson established that he had great difficulty explaining to Dr. Obrzut the nuances and peculiarities of the Florida school finance law, reporting requirements and accounting procedures. He spent more than one full day in attempting to explain these duties of Dr. Obrzut's position to him. Dr. Obrzut would indicate that he understood, but later conversation revealed that he did not in fact understand what had been explained to him. Further, Dr. Obrzut showed a penchant for discussing tangential or even unrelated matters with great Verbosity during Mr. Johnson's attempts to explain his financial duties to him. This may have frustrated Dr. Obrzut's opportunity to understand the explanation of his financial duties and the requirements of his position and doubtless frustrated Mr. Johnson's efforts to explain them. In any event, Mr. Johnson established that, based upon his association with Dr. Obrzut over a period of several months, that Dr. Obrzut did not possess the knowledge and skills necessary to enable him to serve as a School District Finance Officer, even in view of his educational degrees in the areas of finance. This opinion was unrebutted.
Recommendation Having considered the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent John Obrzut be terminated from his position of employment with the School Board of Franklin County. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1775 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted, but not for the material import sought to be conveyed. Rejected as to its overall import as not in accordance with the greater weight of the testimony and evidence presented. Accepted to the extent that the Petitioner failed to present evidence of any unauthorized absences, but the remainder of this proposed finding is rejected as not comporting with the greater weight of the material evidence presented. Rejected as not in accordance with the greater weight of the evidence and testimony presented, except that the record does not reflect that he ever received any written reprimand or warning. Accepted. COPIES FURNISHED: Van P. Russell, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Edward S. Stafman, Esquire 317 East Park Avenue Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Gloria H. Tucker, Superintendent Franklin County School District 155 Avenue E Apalachicola, Florida 32320
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of November, 2011.
The Issue The issue for determination is whether Respondent’s lottery prize is subject to an outstanding debt owed to the Department of Education.
Findings Of Fact Respondent is Wilbert Dudley. His address is 1962 Willow Bends, Apt 2-D, Sneads, Florida 32460. Petitioner is the Florida Department of Education. In an application dated September 25, 1981, Respondent applied for a federally guaranteed student loan for the 1981-82 academic year. The loan, in the amount of $2,500, was issued by the Ellis Bank of Blountstown (the lender) in two equal disbursements: One on or after November 9, 1981, and one on or about January 29, 1982. The loan accrues interest at the rate of 7 percent per year unless Respondent is in deferment status, such as attending school on a minimum part-time basis. Respondent’s loan, number 114103, was guaranteed by Petitioner. Respondent and the lender agreed to a repayment schedule for the loan with the first payment beginning November 15, 1984. The lender received no payment from Respondent after March 25, 1985. Subsequently, the lender declared Respondent in default and filed a claim with Petitioner. On August 8, 1986, Petitioner, as guarantor of the loan, paid the lender $2,612.67 in principal and interest for Respondent’s loan. After Petitioner acquired Respondent’s loan, the following payments were applied to Respondent’s loan: May 10, 1989 $25.00 June 13, 1990 $25.00 December 6, 1991 $50.00 March 9, 1992 $391.66 (1991 Federal Income Tax Return) May 5, 1992 $50.00 In a letter dated May 1, 1998, Petitioner notified Respondent that his salary was subject to administrative wage garnishment for the defaulted student loan in accordance with provisions of Section 112.175, Florida Statutes. Petitioner advised Respondent that the total principal and interest due on the loan at that time was $5,335.15 not counting legal fees or collection costs. Thereafter Respondent agreed to voluntary administrative wage garnishment in the amount of $25 biweekly through payroll deduction. The agreement was confirmed by Petitioner’s letter dated June 16, 1998. Based on this agreement, regular payments of $25 biweekly have been received since July 17, 1998, and credited to Respondent’s account by Petitioner. By letter dated October 14, 1998, Respondent was informed by Petitioner that a claim again Respondent’s lottery winnings of $2,500 had been made in accordance with provisions of Section 24.115(4), Florida Statutes. At that time, Respondent owed Petitioner $5,268.09 in outstanding principal and interest. Respondent’s lottery winnings were transferred to Petitioner on November 25, 1998, and applied to Respondent’s outstanding balance in accordance with federal requirements. Respondent was informed of his right to review of this action per Chapter 120, Florida Statutes. Respondent timely sought such review.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order certifying that the Department of Lottery should pay Respondent's $2,500 lottery prize to Petitioner for application to Respondent’s outstanding defaulted student loan balance. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 March, 1999. COPIES FURNISHED: Ronald G. Stowers, Esquire Department of Education The Capitol, Suite 1701 400 South Monroe Street Tallahassee, Florida 32399-0400 Wilbert Dudley 1962 Willow Bends, Apt 2-D Sneads, Florida 32460 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact On November 16, 1983, the Respondent Miami Postal Service Credit Union (hereafter Miami Postal) filed an application for an expanded field of membership with the Respondent Department of Banking and Finance (hereafter Department). The Department noticed the application which it received from Miami Postal on November 23, 1983. Victoria N. Cecile, Office Manager of Petitioner Miami Federal Credit Union (hereafter Miami Federal), filed a written protest with the Department in opposition to Miami Postal's proposed expansion on December 7, 1983. Miami Postal is seeking to expand its field of membership due to numerous inquiries it has received from federal employees who work in the vicinity of Miami International Airport. These federal employees have sought the services of Miami Postal since it is located in close proximity to the area where they work. It is inconvenient for many of the federal employees who work near the airport and live in West Dade to utilize the services offered by Miami Federal because of its downtown location. Miami Postal, which was chartered in 1926, has a present staff of 20 full-time employees and 8,500 members. It has approximately twenty-seven million dollars in assets and is in good financial condition. The geographic limit of Miami Postal is Dade County. Although it has no branch offices, it does have Automatic Teller Machines for members' use at Publix Supermarkets. If Miami Postal's membership is expanded to include all federal employees in Dade County, their immediate families and family members of postal service employees not residing under the same roof, a staff increase of two to three employees would be required to service the added members. The expansion will be accompanied by an advertising campaign which is reflected in Miami Postal's budget. Moreover, the expansion would not result in any lower level of service to existing members. For example, the rates charged by Miami Postal for new and used auto loans will not increase as a result of the expansion and dividends would continue to be paid regularly to members. Miami Postal has received numerous requests for home equity loans, an area which it has been unable to service. However, with the additional capital expected to be generated by new members, the possibility exists that Miami Postal could begin lending in this area. Although Miami Postal may take potential members away from Miami Federal, the precise effect of the proposed expansion on the existing facility is undetermined. Miami Federal presented no evidence concerning how it would be financially damaged by the expansion other than the possible loss of potential members. Miami Federal would continue to pay dividends and would not go out of business if the expansion were approved. Miami Federal disputed the contention that its location is inconvenient to many federal employees who live in West Dade since it offers consumers the ability to transact business by phone and mail.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of April, 2007.
