03-000913PL Charlie Crist, As Commissioner Of Education vs. Brenda Montgomery Status: Closed Recommended Order on Tuesday, July 22, 2003.

Summary: Assistant principal`s effectiveness was not impaired by her failure to adhere to instructions for a procurement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

) Case No. 03 - 0913PL

vs. )

)

BRENDA MONTGOMERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

May 19, 2003, in Miami, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gonzalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether Respondent, an assistant principal, committed the

offense alleged in the Administrative Complaint and the

penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On February 13, 2002, Petitioner filed an Administrative

Complaint against Respondent alleging certain facts pertaining

to three work orders for tee shirts that she signed as an

assistant principal at Lawton Chiles Middle School ( LCMS), a

public school in the Miami - Dade County School District. The

Administrative Complaint contained one count. The gravamen of

the charge was that Respondent failed to follow purchasing

policies and instructions from her principal, thereby engaging

i n conduct which seriously reduced her effectiveness as an

employee of the School Board, in violation of Section

231.2615(1)(f), Florida Statutes.

At the final hearing, Petitioner presented the testimony of

Karen Robinson (principal of LCMS) and Responden t. Petitioner

presented ten sequentially numbered exhibits, each of which was

admitted into evidence. Respondent presented no other

testimony, but presented six sequentially numbered exhibits,

each of which was admitted into evidence.

One volume of the transcript of the proceedings was filed

on June 27, 2003. The second volume of the transcript was filed

on July 1, 2003. The parties filed Proposed Recommended Orders,

which have been considered by the undersigned in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent

held Florida Educator's Certificate No. 527473, covering the

areas of English, Gifted, and Administration - Supervision. This

certificate is valid through June 30, 2004.

2. During the 2000 - 2001 school year, Respondent was an

assistant principal at LCMS, the position she held at the time

of the final hearing.

3. James Cerra was the principal of LCMS during the 2000 -

2001 school year.

4. Prior to November 9, 2000, Responden t became aware that

certain groups of students and parents were interested in

purchasing tee shirts bearing the school's mascot. Respondent

and Mr. Cerra discussed the proposed purchase and Respondent

arranged for several vendors to submit proposals. Mr. Cerra

told Respondent that money would have to be collected from

students and parents before the tee shirts could be ordered so

that the school would have the funds to pay for the tee shirts

when they were delivered.

5. On November 9, 2000, Respondent me t with a

representative of Stitch Imprint, the vendor that was selected

to produce the tee shirts. On that date Respondent signed three

separate forms for a total price of $10,418.36. Each form was

styled "work order" and described the size and number of various

tee shirts to be delivered. Each of the work orders provided

for a delivery date in late November 2000. Each of the work

orders contained the following caveat:

This order covers special merchandise made

for you and not carried in stock. It is not

subject to cancellation, return or exchange.

The balance is required C.O.D. or within 30

days of job completion.

6. When she signed the work orders on November 9, 2000,

Respondent was aware that Mr. Cerra had authorized the purchase

of the tee sh irts contingent upon there being sufficient funds

collected to pay for the tee shirts, and Respondent knew or

should have known that sufficient funds to pay for the tee

shirts had not been collected.

7. Respondent testified at the final hearing that she

b elieved the forms she signed on November 9 only pertained to a

work - up of the art that would appear on the various tee shirts

and did not constitute firm orders for the tee shirts.

Respondent's testimony in this regard is rejected because it is

self - servi ng, uncorroborated, and contrary to the clear language

of the three work orders she signed.

8. The tee shirts were made and delivered to LCMS on

December 18, 2000. Sufficient funds to pay for the tee shirts

had not been collected. Consequently, LCMS cou ld not pay for

the tee shirts either upon delivery or within 30 days, as

specified on the work orders executed November 9, 2000. An

agreement was reached between LCMS and the vendor for payment in

installments over a period of time. The vendor had been p aid in

full as of the time of the final hearing.

9. Petitioner alleged in its Administrative Complaint that

Respondent violated district purchasing policies by signing the

three work orders. Ms. Robinson, the current principal of LCMS,

testified that Res pondent should have had Mr. Cerra sign a

requisition form which would have been sent to a district office

for the generation of a purchase order. Ms. Robinson testified

that the tee shirts should have been purchased by use of a

purchase order, not a work order. Respondent presented evidence

that the use of a purchase order would have been optional under

the circumstances of this case and that a work order could have

been used. Because of that conflicting evidence, it is found

that Petitioner failed to es tablish with any specificity that

Respondent violated an established district rule or policy by

utilizing the work order instead of a purchase order.

10. Although the evidence was not clear that Respondent

violated district purchasing policies, the evid ence was clear

that she failed to comply with Mr. Cerra's clear instructions as

to how the procurement had to be handled.

11. As a result of this procurement, the Miami - Dade County

School District issued to Respondent a letter of reprimand and

placed her on a Professional Development Program, which she

completed.

12. Petitioner presented insufficient evidence to

establish that Respondent's effectiveness as an employee of the

Miami - Dade County School had been impaired. To the contrary,

there was credible evidence that her effectiveness had not been

impaired. At the end of the 2000 - 2001 school year, Mr. Cerra

gave Respondent a satisfactory evaluation on her job

performance, and Ms. Robinson testified that Respondent's

effectiveness as an assistant princip al had not been impaired by

the subject procurement.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

14. Res pondent argued that the Administrative Complaint

should be dismissed because the legislature has repealed Section

231.2615(1)(f), Florida Statutes (2001), 1 the statute cited by

Petitioner in the Administrative Complaint. 2 Respondent argued

that her due pr ocess rights were violated because Petitioner

failed to amend the Administrative Complaint to reflect that it

was now relying on the provisions of Section 1012.795, Florida

Statutes, 3 which the legislature enacted to replace the repealed

portions of Chapte r 231 cited in the Administrative Complaint.

15. It is well - settled that disciplinary statutes are

penal in nature and that a licensee, such as Respondent, should

not be prosecuted based on allegations that are not properly

pled. See Delk v. Department of Professional Regulation , 595

So. 2d 996 (Fla. 1st DCA 1992); Lusskin v. Agency for Health

Care Administration, Board of Medicine , 731 So. 2d 67 (Fla. 1st

DCA 1999); and United Insurance Company v. Department of

Insurance , 793 So. 2d 1182 (Fla. 1st DCA 2001).

16. An appropriate test for an alleged violation of one's

due process right to a fair hearing is the harmless error test

generally applied in civil cases. An error is not harmless

where there is a reasonable probability that a different result

w ould have been reached but for the error committed. Chrysler

v. Department of Professional Regulation , 627 So. 2d 31 (Fla.

1st DCA 1993). Respondent's argument that her due process right

to a fair hearing was violated should be rejected because the

Admin istrative Complaint correctly cited the law in effect at

the time of the offense and adequately informed Respondent of

the charges against her, thereby satisfying due process

requirements. Petitioner's subsequent citation to Section

1012.795, Florida Stat utes, is, at most, harmless error.

17. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Co nsumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994).

18. Petitioner failed to prove that Respondent's conduct

impaired her effectiveness as an employee of the school

district, which is an essent ial element of the charge against

Respondent. Consequently, Petitioner failed to prove Respondent

guilty of the charge alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMME NDED that Petitioner enter a final order

finding Respondent not guilty of the charge alleged in the

Administrative Complaint.

DONE AND ENTERED this 22nd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B . ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of th e

Division of Administrative Hearings

this 22nd day of July, 2003.

ENDNOTES

1/ Prior to its repeal, Section 231.2615(1)(f), Florida

Statutes, provided the following as a grounds for disciplining a

licensee:

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

2/ Count I of the Administrative Complaint is as follows:

The allegations of misconduct set forth

herein are in violation of Section

231.2615(1)(f), Florida Statutes, in that

she has been found guilty of personal

conduct which seriously reduces her

effectiveness as an employee of the school

board.

3/ When it repealed Section 231.2615(1)(f), Florida Statutes,

the legislature enacted Section 1012.795(1)(f), Florida

Statutes, which provides the following as a grounds for

disciplining a licensee:

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employ ee of the district school board.

COPIES FURNISHED :

Gonzalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33 675 - 0638

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department o f Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.