02-000994 Broward County School Board vs. Michael Ransaw Status: Closed Recommended Order on Tuesday, July 2, 2002.

Summary: Petitioner proved that Respondent committed misconduct in office by pawning his school computer, for which the appropriate discipline is a 10-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0994

)

MICHAEL RANSAW, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meal e, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Lauderdale, Florida, on April 17, 2002.

APPEARANCES

For Petitioner: Carmen Rodriguez, Esquire

Carmen Rodriguez, P.A.

9245 Southwest 157th Street, Suite 209

Miami, Florida 33157

For Respondent: David T. Alvarez, Esquire

Alvarez & Martinez, L.L.P.

One East Broward Boulevard, Suite 604

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether, in violation of Section 231.36(1)(a)

and (6), Florida Statutes, Respondent committed misconduct in

office when he pawned a school laptop computer and, if so, w hat

discipline should be imposed.

PRELIMINARY STATEMENT

By letter dated January 30, 2002, Dr. Frank Till,

Petitioner's Superintendent, informed Respondent that he would

recommend to the School Board that it suspend him without pay

for ten days from his p osition as assistant principal. By

Administrative Complaint dated January 30, 2002, Petitioner

alleged that on July 19, 2001, Petitioner assigned to Respondent

an Apple G - 4 Titanium laptop computer valued at about $2500.

The Administrative Complaint alle ges that, on August 25, 2001,

Respondent pawned the computer at Richie's Pawn Shop in Tamarac

for $350.

The Administrative Complaint alleges that Respondent did

not return to the pawn shop to redeem the computer until

September 12, 2001 -- the day after he had received a

hand - delivered notice from Petitioner advising him that he was

under investigation for misuse of School Board property.

The Administrative Complaint alleges that Respondent thus

misused institutional privileges for personal gain or advantag e,

in violation of Rule 6B - 1.006(4)(c), Florida Administrative

Code; committed immorality, in violation of Section

231.36(1)(a), Florida Statutes, and Rule 6B - 4.009, Florida

Administrative Code; and misconduct in office through the

violation of various pro visions of the Code of Ethics of the

Educational Profession, in violation of Section 231.36(1)(a),

Florida Statutes, and Rule 6B - 4.009(3), Florida Administrative

Code.

The Administrative Complaint requested a recommendation of

discipline in the form of a ten - day suspension without pay and

transfer to an instructional or guidance position, in the sole

discretion of the Superintendent, for a period of three years,

after which, if Respondent completes three years of satisfactory

evaluations, he would be eligi ble to return to an administrative

position.

At the hearing, Petitioner called two witnesses and offered

into evidence one exhibit. Respondent called five witnesses and

offered into evidence no exhibits. The parties jointly offered

into evidence five ex hibits. All exhibits were admitted.

The court reporter filed the transcript on May 3, 2002.

The parties filed their proposed recommended orders on May 16,

2002.

FINDINGS OF FACT

1. Respondent is 33 years old. His father has served

Petitioner as a prin cipal, and his mother has served Petitioner

as a primary specialist; combined, Respondent's parents have 64

years' service in Petitioner's school system. Respondent

attended high school locally, where he achieved prominence as a

football player, and conti nued his football career in college.

2. Petitioner hired Respondent in an instructional

position on July 1, 1992, shortly after he obtained his

bachelor's degree. Respondent began work as a pool substitute.

At the time, he was also pursuing a master's d egree in guidance.

When a guidance job became available, Petitioner hired

Respondent as a guidance counselor.

3. After four years as a guidance counselor, Respondent

became an assistant principal in March 2001 at a middle school.

Three assistant princ ipals help the principal at this middle

school. Respondent's duties include supervision of discipline,

safety, and maintenance of the school.

4. On July 19, 2001, Respondent's principal assigned to

Respondent an Apple G - 4 Titanium laptop computer. Res pondent

understood that he was to use the computer for school - related

job duties, such as staff development and classroom use.

5. On August 25, 2001, Respondent took the computer to

Richie's Pawn Shop in Tamarac to pawn the computer. Respondent

disclosed to the pawn shop owner that the computer was owned by

Petitioner, not Respondent. However, the pawn shop owner, who

had known Respondent nearly 20 years earlier, when he had

purchased items from the shop, nevertheless allowed Respondent

to pawn the compu ter. Respondent signed a document that

represented that he owned the computer.

6. Pursuant to the agreement, the pawn shop owner gave

Respondent $350. The agreement provided that Respondent could

redeem the computer at anytime during the next 30 days by

repaying the $350 plus a finance charge of $52.50. According to

the agreement, at the conclusion of the first 30 days,

Respondent could redeem the computer at anytime during the next

30 days by repaying the $350 plus a finance charge of $105.

After 60 d ays, Respondent would lose the right to redeem the

computer.

7. Respondent used the money for expenses on a trip that

he was taking that weekend to retrieve his four - year - old

daughter, who was visiting Respondent's parents in Ocala. The

following Monday, August 27, Respondent was back at work as an

assistant principal.

8. Respondent did not return to the pawn shop to redeem

the computer for a little over two weeks. On September 12,

Respondent returned to the pawn shop and attempted to redeem the

compute r.

9. The prior day, though, a Broward County Sheriff's

Officer, on a routine check of the pawn shop, had run the

registration number of the computer that Respondent had pawned

and learned that it was the property of Petitioner. The officer

had informed one of Petitioner's investigators of the presence

of the computer in the pawn shop. One of the law enforcement

officers then ordered the pawn shop owner to hold the computer

and not allow anyone to remove it.

10. Pursuant to the order that he had recei ved, the pawn

shop owner informed one of Petitioner's investigators when

Respondent tried to redeem the computer. Contrary to the

allegation of the Administrative Complaint, Respondent went to

the pawn shop to redeem the computer not knowing that Petition er

or law enforcement had discovered the wrongful pawning.

Petitioner recovered the computer, undamaged.

11. Petitioner's investigator correctly concluded that

Respondent had not attempted or intended to deprive Petitioner

of the computer permanently. He also correctly concluded that

Respondent had not intended to deprive Petitioner permanently of

the computer.

12. Among the witnesses attesting to Respondent's value as

an employee of Petitioner was Petitioner's Executive Director of

Professional Sta ndards and Special Investigation Unit. The

Executive Director has served Petitioner for 28 years, including

four years as a principal. While a principal, the Executive

Director hired Respondent and found him a valuable employee.

When the Professional St andards Committee recommended

termination of Respondent, the Executive Director suggested to

the Superintendent that he recommend a ten - day suspension and

three - year demotion, which the Superintendent adopted as his

recommendation to the School Board.

13. Other witnesses with considerable knowledge of

Petitioner testified to his enthusiasm, talent, energy, and

competence as an employee of Petitioner. In particular,

Respondent's principal, who has served Petitioner for 33 years,

testified that Respondent s howed considerable initiative and

exceeded all expectations. Although unaware of the reason for

Respondent's absence, the students and parents all missed

Respondent. The principal testified that even the teachers were

unaware of the reason for Respondent 's absence.

14. Describing Respondent as a "tremendous asset" to the

school system, the principal testified that the incident did not

diminish Respondent's effectiveness as an employee of

Petitioner. The temporary loss of possession of the computer

did n ot prevent Respondent from completing any of his work

assignments, nor did it deprive anyone else from the use of a

computer, as the school has dozens of extra computers.

Respondent has not previously received discipline as an employee

of Petitioner.

15. Petitioner's Employee Disciplinary Guidelines provides

in part:

I. DISCIPLINARY GUIDELINES

(a) It is the intent of the School Board to

treat all employees on a fair and equitable

basis in the administration of disciplinary

measures.

(b) Discipline i s a corrective rather than a

punitive measure. In dealing with deficiencies

in employee work performance or conduct,

progressive discipline shall be administered,

except in situations where immediate steps must

be taken to ensure student/staff safety.

Pr ogressive discipline may include, but is not

limited to: informal discussion, oral warning,

written warning, written reprimand, enrollment

in professional skills enhancement programs,

suspension without pay, demotion, change in

contract status or terminat ion of employment.

(c) There are certain categories of misconduct,

however, which are so offensive as to render an

employee no longer employable. The only

appropriate disciplinary measure in these cases

(See Section II, Category A) is the termination

of the employment relationship with the Broward

County School System (F.S., 231.28)

(d) The severity of the misconduct in each

case, together with relevant circumstances

(III (c)), will determine what step in the range

of progressive discipline is followed . A more

severe discipline measure will be used when it

is in the best interest of the students of the

community we serve. It is the intent that

employees who have similar deficiencies in work

performance or misconduct, will be treated

similarly and comp liant with the principle of

just cause.

* * *

II. DISCIPLINARY ACTION

(CATEGORY A)

OFFENSE PENALTY

(a) Inappropriate sexual Dismissal

conduct including, but not

limited to, sexual battery,

possession or sale of

p ornography involving

minors, sexual relations

with a student or the

attempt thereof

(b) Sale/distribution of a Dismissal

controlled substance

(c) Reckless display, Dismissal

threatening with guns or

weapons on School Board

property or at School

Board events

(CATEGORY B)

OFFENSE PENALTY

(a) Committing a Suspension/Dismissal

criminal act -- felony

* * *

(c) Unlawful possession, Suspension/Dismissal

use or being under the

influence of a controlled

substance

(d) Driving Under the Suspension/Dismissal

Influence under the scope

of employment

* * *

(i) Possession of guns or Reprimand/Dismissal

weapons on School Board

property

* * *

(m) Any violation of The Reprimand/Dismissal

Code of Ethics of the

Education Profession in the

State of Florida -- State

Board of Education,

Administrative Rule 6B - 1.001

* * *

(o) Misappropriation of Suspe nsion/Dismissal

Funds

(p) Insubordination, Reprimand/Dismissal

which is defined as a

continuing or intentional

failure to obey a direct

order, reasonable in

nature and given by and

with proper authority

(q) Unauthorized use of Reprimand/Di smissal

School Board property

* * *

16. Section III of the Employee Disciplinary Guidelines

reserves to the Superintendent and School Board considerable

discretion in imposing discipline, including termination, for

any just c ause. This section identifies a wide range of

aggravating or mitigating factors, including the severity of the

offense, degree of student involvement, impact on the school and

community, number of repetitions of the offense, length of time

since the misco nduct, employment history, actual damage,

deterrent effect of discipline, actual knowledge of the employee

about the misconduct, related misconduct by the employee,

pecuniary benefit by the employee, mental or physical harm to

persons in school or communit y, length of employment, employee's

evaluation, and employee's adherence to self - reporting policy.

17. Although the actions of Respondent in this case may

also constitute misuse of institutional privileges, they are

best defined as misconduct in office. The record fails to

establish that these actions rise to the level of immorality.

18. The unlawful pawning of a school computer reduces an

employee's effectiveness as an employee of the school system,

even if, as here, few administrators, teachers, stud ents, or

parents know of the misconduct. Unlawfully pawning a school

computer is a betrayal of trust that, once detected, is

necessarily known by at least some superiors of Respondent, and

their knowledge of this misconduct reduces the trust they can

plac e in Respondent and must be able to place in each employee,

especially administrators.

19. Numerous mitigating factors apply in this case. The

offense is not especially severe, especially given Respondent's

intent to redeem the computer prior to the mat urity date of the

pawn. Nothing in the record suggests that Respondent or any

other of Petitioner's employees was prevented or impeded from

performing his or her duties due to the pawning of the computer

for less than three weeks. The incident does not i nvolve

students. It is an isolated incident, and Respondent has not

previously been the subject of discipline during his ten - year

tenure with Petitioner. Respondent has been an outstanding

employee. Another mitigating factor is Respondent's relative

you th. Obviously, aggravating factors are that the incident

involves pecuniary gain on Respondent's part, although a

relatively modest amount, and Respondent did not self - report.

20. Another aggravating factor is the deterrent effect of

discipline in this case. Petitioner is justifiably concerned

with safeguarding its computers.

21. Obviously, the most applicable provision from the

disciplinary guidelines is unauthorized use of school property,

for which the penalty ranges from reprimand to dismissal. In

some respects, the pawning of the computer is a minor instance

of the unauthorized use of school property because Respondent

was without the computer for less than three weeks, did not need

the computer during that time to perform his school work, did

not consume the property or shorten its useful life during its

unauthorized use, and never intended to permanently deprive

Petitioner of the computer. Also, others at his school did not

go without computers while Respondent's computer was in the pawn

shop . In one respect, the pawning of the computer is a serious

instance of the unauthorized use of school property because it

is an expensive asset of the school.

22. The disciplinary guidelines also require the

imposition of progressive discipline. The ran ge for the

unauthorized use of school property is reprimand to dismissal.

Petitioner has imposed demotion and suspension, which more

closely approach dismissal than reprimand.

23. Petitioner's selection of discipline in this case is

driven mostly by a de sire to achieve deterrence and fairness.

Petitioner must discourage its many employees from pawning

school computers and other expensive, portable electronic

equipment, even in situations, as here, where they do not intend

to deprive Petitioner permanentl y of the asset. Deterrence is a

listed aggravating factor, and, given the potential for a

problem with this kind of behavior, deterrence is the most

important aggravating factor.

24. The fairness issue is more problematic for Petitioner.

Petitioner is commendably trying to treat Respondent as it has

treated two other, nonadministrative employees who were caught

misusing computers. In one case, an employee broke into a

secure area, stole a computer, and pawned it. In the other

case, an employee with a uthorized possession of a computer

pawned it, possibly with the intent of permanently depriving

Petitioner of its property. Otherwise, the facts concerning

aggravating and mitigating factors in these two cases are not

developed in this record.

25. The three cases are the same in that employees pawned

school computers, but, based on this record, the resemblances

end there. Respondent is a relatively young person, who

admittedly exercised poor judgment, but his employment record

with Petitioner has been outstanding and this misconduct

constitutes an isolated incident.

26. An important part of this case is the testimony of

experienced, mature coworkers and superiors, who are informed

about the incident and have known Respondent for many years.

Supporti ng Respondent in his effort at least to reduce the

punishment, these employees provide a balanced view of the

competing factors in finding the appropriate discipline. They

weigh the importance of deterring employees from misusing

expensive school equipmen t against the importance of, as

provided by Petitioner's disciplinary guidelines, treating

discipline not as punitive, but as corrective -- in recognition of

the fallibility of the human element and its preeminence among

Petitioner's assets.

27. The Admin istrative Complaint seeks a 10 - day suspension

and demotion under one factual misunderstanding -- that Respondent

did not redeem the computer until after he knew that Petitioner

had uncovered the misconduct. Under all of the circumstances,

including Petition er's use of progressive, corrective

discipline, the most serious discipline authorized by the

disciplinary guidelines is a 10 - day suspension without pay.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matt er. Sections 120.57(1) and

231.36(6)(a)2, Florida Statutes. (All references to Sections

are to Florida Statutes. All references to Rules are to the

Florida Administrative Code.)

29. Section 231.36(6)(a) authorizes the suspension or

dismissal of Respond ent at anytime during the term of the

contract for "just cause." Section 231.36(1)(a) provides that

"just cause" includes "misconduct in office." Rule 6B - 4.009(3)

defines "misconduct in office" as a "violation of the Code of

Ethics of the Education Profe ssion as adopted in Rule 6B - 1.001

. . ., and the Principles of Professional Conduct in the

Education Profession in Florida, as adopted in Rule 6B - 1.006

. . ., which is so serious as to impair the individual's

effectiveness in the school system."

30. Rule 6B - 1.006(4)(c) provides that an educator "[s]hall

not use institutional privileges for personal gain or

advantage."

31. Petitioner has not proved immorality. Among other

things, Respondent was not caught stealing the computer.

Clearly, though, Respond ent has committed misconduct in office

or has misused institutional privileges. Given Petitioner's

disciplinary guidelines, which cover unauthorized use of School

Board property, the distinction between the two offenses is

unimportant. Both offenses fall under statutory misconduct, so

Petitioner must also prove that Respondent's actions were so

serious as to impair his effectiveness in the school system.

Probably, misconduct in office generally describes Respondent's

actions better than use of institutio nal privileges for gain or

advantage.

32. This case presents the reverse of a more common

situation, in which an educator has not committed any offense,

but major segments of the relevant communities, aware of the

charges, have formed adverse opinions so as to make it more

difficult for the educator to continue to serve as an effective

employee of his or her school board. Here, there is little

evidence of loss of effectiveness, partly due to a lack of

knowledge of Respondent's misconduct. However, loss o f

effectiveness arises from the obvious knowledge of a few persons

within the District, including of course the Superintendent, of

a clear act of misconduct.

33. For the reasons set forth in the Findings of Fact, the

appropriate discipline in this case is a ten - day suspension

without pay and not a ten - day suspension without pay and a

demotion.

RECOMMENDATION

It is

RECOMMENDED that the Broward County School Board enter a

final order finding Respondent guilty of misconduct in office

and imposing a ten - da y suspension without pay.

DONE AND ENTERED this 2nd day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrativ e 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 2nd day of July, 2002.

COPIES FURNISHED:

Dr. Franklin L. Till, Jr., Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Honorable Charlie Crist

Commissioner of Educ ation

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Carmen Rodriguez, Esquire

Carmen Rodriguez, P.A.

9245 Southwest 157th Street, Suite 209

Miami, Florida 33157

David T. Alvarez, Esquire

Alvarez & Martinez, L.L.P.

One East Broward Boulevard, Suite 604

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommende d order must be filed with the agency that

will issue the final order in this case.