10-001525TTS Palm Beach County School Board vs. Richard Rahey Status: Closed Recommended Order on Wednesday, November 10, 2010.

Summary: Recommend that School Board terminate employee for crimes involving moral turpitude, grand theft of PTO funds and fraud.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1525

)

RICHARD RAHEY , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter of the Division

of Administrative Hearings held a final hearing in this case , as

previously scheduled, by video teleconference between sites in

West Palm Beach and Tallahassee, on September 2, 2010.

APPEARANCES

For Petitioner: Corey M. Smith, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Richard Rahey, pro se

4339 Willow Pond Road, Unit B

West Palm Beach, Florida 33417

STATEMENT OF THE ISSUE

The issu e in this case is whether Petitioner has just cause

to suspend Respondent from work without pay and to terminate his

employment.

PRELIMINARY STATEMENT

In a Notice of Suspension Without Pay and Recommendation

for Termination From Employment dated February 12, 2010, the

Superintendent of Schools for the School District of Palm Beach

County notified Respondent Richard Rahey that he intended to

recommend that the Palm Beach County School Board suspend him

without pay from his position as a school monitor effe ctive

March 4, 2010, and to terminate his employment effective

March 18, 2010, or, alternatively, following an administrative

hearing if timely requested. The S uperintendent based his

recommendation on Respondent 's admitted guilt to conversion of

School B oard District funds, fraud , and grand theft. The Board

accepted the S uperintendent's recommendation at a special

meeting on March 3, 2010. Respondent timely requested an

administrative hearing . O n March 22, 2010, the matter was

referred to the Division of Administrative Hearings for the

assignment of an administrative law judge. At the request of

Petitioner's c ou nsel, considering conflicts in c ounsel's

schedule and staff unavailability during the summer break, the

case was set for September 2, 2010.

At the hearing, Petitioner presented the testimony of

Richard Rahey ; Dr. Ruth Ann Miller, Principal, Benoist Farms

Elementary School; Detective Sergeant Robert Walton of the

School District Police De partment ; and Sonia Hill - Howard,

Director of Employee Rel ations for the School District.

Petitioner's Exhibits 3 through 13, 15, 16, 18, 19, 22, and 23

were received into evidence. Official recognition was taken of

the documents marked as Petitioner's Exhibits 14 (Palm Beach

County Fifteenth Judicial Circuit P retrial Intervention Program

Deferred Prosecution Agreement); 20 (Section 817.034, Florida

Statutes (2009), the Florida Communications Fraud Act); and 21

(Section 812.014, Florida Statutes (2009), Theft).

Respondent testified on his own behalf . W ithout ob jection,

Respondent's late - filed Exhibit 1 was received into evidence.

Petitioner and Respondent agreed to file Proposed

Recommended Orders on September 30, 2010, which they did.

Through an apparent oversight, however, the Transcript was not

filed at th e Division of Administrative Hearings until

October 27 , 2010.

FINDINGS OF FACT

1. Respondent Richard Rahey ÐRespondent" or "Mr. Rahey"

was employed by the Palm Beach County School District

"Petitioner" or the ÐDistrictÑ as a school monitor and behavior

i ntervention associate at Benoist Farms Elementary School

(Benoist) during the 2008 - 2009 school year. He also served as a

parent liaison and the President of the Parent Teacher

Organization (the "PTO").

2. In January 2009, District Police began an investigation

of bank accounts a ssociated with Benoist when a check that was

sent by an organization that subsidizes after school care was

not received by the director of Benoist 's after school program.

Detective Robert Walton found that the check in the amount of

$2 , 314.47 was deposited in an account at a different bank from

the one used for Benoist school accounts. Only Mr. Rahey had

access to the other account called the "Benoist Farms Elementary

PTO " account (the "PTO account") . When asked about the check

intended for the after school program, Mr. Rahey said he found

it in his school mailbox, so he deposited it.

3. Detective Walton had investigated Mr. Rahey for PTO

bank account irregularities in 2005 . At that time , Mr. Rahey

was an employee and PTO President at Seminole Trails Elementary

School ("Seminole Trails") . Although the evidence was

insufficient to refer the matte r for criminal prosecution,

Mr. Rahey was found to have failed "to safeguard money

designated for children." A letter of reprimand dated June 15,

2005, warned him as follows:

You are directed to familiarize yourself

with the established procedures and protocol

for handling funds and deposits. You are

further reminded that the district's best

practices with regard to the col lection and

deposit of money must be followed. You are

advised that any future failure to follow

the aforementioned direction will result in

further disciplinary action up to and

including termination.

4. Detective Walton had more reason s to investigate

Mr. Rahey 's finances further after finding in public records

that Mr. Rahey's home was in foreclosure and that he had filed

for bankruptcy. At Detective Walton's request, a subpoena was

issued for records from the PTO account and from Mr. Rahey's

persona l bank account . A number of checks from the PTO account

were written to Sam's Club , so Detective Walton requested and

received a n itemized printout of purchases made using a tax -

exempt Benoist PTO Sam's Club membership . When Detective Walton

examined the accounts and purchases , h e found what appeared to

be unauthorized and unexplained purchases, and checks made to

cash that totaled in excess of $3,600.00 over a period of time

from January 2008 to April 2009 .

5. When questioned in May 2009, Mr. Rahey told Detective

Walton that he did not remember or was not sure about some of

the purchases. He insisted , however, that they were legitimate

expenditures for the school, but his records were insuf ficient

to support his claims. Mr. Rahey only had his hand written

ledger to show the purposes of the expenditures. During the

questioning, h e also acknowledged that Detective Walton had told

him in 2005 that the same kind of record - keeping wa s inadequate

for a school organization. This time Detective Walton

det ermined that there was sufficient evidence to refer the case

for criminal prosecution . 1

6 . Dr. Ruth Ann Miller was the P rincipal at Benoist.

Detective Walton questioned her about certain items, including a

PTO account check written for a "microwave for D r. Miller."

Dr. Miller had not authorized Mr. Rahey to buy a microwave and

did not have the microwave. W hen she confronted Mr. Rahey , he

initially denied having used funds from the account for his

personal use.

7 . The District provided Mr. Rahey a copy of the Detective

Walton's investigative report and invited Mr. Rahey to attend a

Pre - disciplinary Meeting that was held on October 2, 2009, which

he did. At the meeting and during the hearing , Mr. Rahey

admitted his mistakes , apologized, and blame d his actions on his

difficult financial situation as a single parent whose former

spouse had stopped paying child support .

8 . Superintendent Arthur C. Johnson , by letter dated

February 12, 2010, notified Mr. Rahey that he would recommend to

the Board at its meeting on March 3, 2010, that he be suspended

without pay and that his employment be terminated. As ground s

for his action, the Superintendent listed conversion of District

funds and/or property, ethical misconduct, failure to exercise

best professio nal judgment, failure to properly control District

funds, falsification of document ation, and theft. T he following

specific policies and statutes were also cited: School Board

Polic ies 1.013 - Responsibilities of School District Personnel

and Staff; 2.32 - Personal Business on School Time; 2.16 - Fund

Raising Activities by School; 3.27 - Suspension and Dismissal of

Employees; and Florida Statutes Section 817.034(4)(a)3. -

Organiz ed Fraud; and Section 812.014 - Grand Theft.

9 . As a result of budget cuts at Benoist, Mr. Rahey

transferred to Bear Lakes Middle School where he was employed as

a school monitor until he was dismissed from employment in April

2010 . He has continued to serve as a volunteer parent liaison

and business p artner coordinator at Bear Lakes Middle School

where he has the full support of the p rincipal, Dr. Anthony

Lockhart . His effectiveness has been compromised.

Dr. Lockhart , for example, monitor s Mr. Rahey's activities to

make sure that he does not handle a ny money .

10 . Although he has confessed to committing the violations

of policy and the crimes as charged , Mr. Rahey maintains that

his employment should not be terminated because he has done so

many worthwhile thing s to assist the schools. He has increas ed

the number of volunteers and business partners at Bear Lakes.

He was instrumental in having one business partner donate

$10,000.00 for computers. Over the ten years that he has worked

for and volunteered in District schools, Mr. Rahey has received

exc ellent evaluations. He has been volunteer of the year once

and has been nominated employee of the year four times .

Mr. Rahey helped solicit school supplies and uniforms for new

students in the District who were evacuated from Haiti following

the earthquake. He has received absolution from his church

pastor.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2 010).

12 . As Petitioner, the D istrict has the burden to prove,

by a preponderance of the evidence , the charges contained in the

Petition for Suspension Without Pay and Dismissal from

Employment and that it has just cause to discipline Respondent ,

as provi ded in Article 3, Section C, of the C ollective

Bargaining Agreement. See McNeill v. Pinellas County School

Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); and Sublett v.

Sumter County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995).

13 . Given Resp ondent's confession, the charges have

unquestionably been proven by more than a preponderance of the

evidence.

14 . Respondent, a school monitor and behavior intervention

associate, is a n on - instructional "educational support employee"

within the meaning of S ection 1012.40(1)(a) , Florida Statutes

(2010). The District ha s followed the applicable statutory

procedures to discipline Respondent and has the authority if it

has "just cause" to do so . See Art . IX, § 4, Fla . Const .; and §§

1012 .22(1)(f) and 1012.40(2)(c) , Fla . Stat . (2010) .

15 . Among the causes for which suspension and termination

are just are those listed in Section 1012.32, Florida Statutes

(2010), which provides, in relevant part, that :

(2)(a) Instructional and noninstructional

personnel who are hired or contracted to

fill positions that require direct contact

with students in any district school system

or university lab school must, upon

employment or engagement to provide

services, undergo background screening as

required under s. 1012.465 or s. 1012.56 ,

whichever is applicable.

* * *

Fingerprints shall be submitted to the

Department of Law Enforcement for statewide

criminal and juvenile records checks and to

the Federal Bureau of Inve stigation for

federal criminal records checks. A person

subject to this subsection who is found

ineligible for employment under s. 1012.315 ,

or otherwise found through background

screening to have been convicted of any

crime involving moral turpitude as defined

by rule of the State Board of Education,

shall not be employed, engaged to provide

services, or serve in any po sition that

requires direct contact with students 2 .

16 . The State Board of Education has promulgated

Subsection (6) of R ule 6B - 4.009, Florida Administrative Code,

giving the following definition :

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and social duties, which,

according to the accepted standards of the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

17 . " Theft " is defined in Section 812.014 , Florida

Statutes (2009) , as follows:

(1) A person commits theft if he or she

knowingly obtains or uses, or endeavors to

obtain or to use, the property of another

with intent to, either tem porarily or

permanently:

(a) Deprive the other person of a right to

the property or a benefit from the property.

(b) Appropriate the property to his or her

own use or to the use of any person not

entitled to the use of the property.

* * *

(c) It is grand theft of the third degree

and a felony of the third degree, punishable

as provided in s. 775.082 , s. 775.083 , or s.

775.084 , if the property stolen is:

1. Valued at $300 or more, but less than

$5,000.

18. Section 817.034(4)(a)3., Florida Statutes (2009),

defines fraud as follows:

Any person who engages in a scheme to

defraud and o btains property thereby is

guilty of organized fraud, punishable as

follows:

* * *

3. If the amount of property obtained has

an aggregate value of less than $20,000, the

violator is guilty of a felony of the third

degree, punishable as provided in s .

775.082 , s. 775.083 , or s. 775.084 .

19 . The ft and fraud are crimes in volving moral turpitude,

within the meaning of Section 1012.32(2)(d) , Florida Statutes

(2009) . See School District of Palm Beach County v. Woessner ,

Case No. 97 - 2582 , 1997 Fla.Div.Adm.Hear. LEXIS 5632 ( R.O.

July 30, 1997) (teacher terminated for crime inv olving moral

turpitude after breaking i nto a trailer and "trashing it" and

stealing a credit card and using it to make p urchases in excess

of $ 300.00); Matala v. Department of Banking and Finance , Case

No. 93 - 5603, 1994 Fla.Div.Adm.Hear. LEXIS 5448 ( R.O. January 27,

1994 ) ("As a general rule it may be said that almost all crimes

involving fraud, larceny, or dishonest dealing involve moral

turpitude."); Morgan v. Latcham , Case No. 93 - 0019 ( Fla. DOAH

September 2, 1993)(t eacher engaged in immoral conduct by

attempting to steal generator from home improvement store);

School Board of Palm Beach County v. Kenny , Case No. 88 - 1441

(Fla. DOAH February 6, 1989)(burglary and grand theft constitute

"conduct . . . inconsistent with public conscience and good

morals"); Kimble v. Wort h County R - III Board of Education , 669

S.W. 2d 949, 953 (Mo. Ct. App 198 4) ( "The taking of property

belonging to another without consent, notwithstanding its return

when confronted with such wrongdoing, breaches even the most

relaxed standards of acceptable human behavior, particularly so

with regard to those who occupy positions which bring them in

close, daily contact with young persons of an impressionable

age."); L esley v. Oxford Area School District , 420 A. 2d 764,

766 (Pa. Commw. Ct. 1980) ("The term immorality, while not

defined in the Code has been judi cially defined as 'a course of

conduct [that] offends the morals of the community and is a bad

example to the youth . . . Clearly, shoplifting falls squarely

within this definition ).

20 . There is no doubt, therefore, that Petitioner has just

cause to disc ipline Respondent. The only remaining issue is the

nature of the discipline that is appropriate. Article 3,

Section C, of the Collective Bargaining Agreement provides for

progressive discipline. The next step authorized, following a

written reprimand , is suspension without pay with Board

approval ; and, after that, dismissal with Board approval. An

exception exists for "cases of a real immediate danger to the

District or other flagrant violation."

21. In light of the numerous policy violations, and th e

crim inal acts involv ing moral turpitude , Peti tioner had just

cause to suspend Respondent without pay . Given, (1) t he nature

of the warning in Respondent's written reprimand ; (2) his

flagrantly ignor ing the warning when he transferred and t ook

control of the PTO's finances at a different school ; and (3) his

continu ing to serve as a volunteer in a position that brings him

into direct contact with students, volunteers , and donors , 3

Petitioner has just cause to terminate Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order that

suspends Respondent from employment without pay and terminates

his employment with the District.

DONE AND ENT ERED this 10 th day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 10 th day of November , 2010 .

ENDNOTES

1 / Detective Walton referred the matter to the State Attorney

and, on January 27, 2010, as a part of a Pretrial Intervention

Program Deferred Prosecution Agreement, Mr. Rahey signed an

admission of guilt to two felonies: (1) having an organized

scheme to defraud in violation of Section 817.034, Florida

Statutes (2009); and ( 2) having committed grand theft in

violation of Section 812.014, Florida Statutes (2009). As a

part of the Agreement, Mr. Rahey has made restitution in the

amount of $3,683.00.

2 / Section 1012.32, Florida Statutes (2010) , provides for

suspension of those " otherwise found through background

screening to have been convicted of any crime involving moral

turpitude ." Because he entered into the Deferred Prosecution

Agreement , Mr. Rahey was not "convicted." The agreement

provi des that "[I]f you comply with these conditions during the

period of Deferred prosecution, no criminal prosecution

concerning this charge will be instituted . . . . " It is

illogical to think that the Legislature intended discipline for

those convicted but not for those who committed or confessed to

having committed the same acts, or who, like Respondent did

both.

3 / Section 1012.32, Florida Statutes (2010), also provides that

persons who are not eligible for employment, should also not

" serve in any posit ion that requires direct contact with

students ," as Respondent apparently still does.

COPIES FURNISHED :

Richard Rahey

4339 Willow Pond Road, Unit B

West Palm Beach, Florida 33417

Corey Michael Smith, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33416

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Eric J. Smith ,

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

D r. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406 - 4869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.