99-002533 Frank T. Brogan, As Commissioner Of Education vs. Maria Dupree Status: Closed Recommended Order on Friday, February 11, 2000.

Summary: Proof failed to demonstrate clearly and convincingly that Respondent participated in a check-writing scheme with a neighbor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 99-2533

)

MARIA DUPREE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

December 1, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Maria Dupree, pro se

1511 Mahaffey Circle

Lakeland, Florida 33811

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint, as

amended, and, if so, what disciplinary action should be taken

against her.

PRELIMINARY STATEMENT

On December 22, 1998, Petitioner filed an Administrative

Complaint against Respondent which, as amended, alleged that:

1. Respondent, Maria Dupree, held Florida

educator's certificate [number] 631483,

covering the areas of health education and

physical education, which was valid for a

period from 1994 through June 30, 1999, at

which time it expired and was not renewed.

2. At all times pertinent hereto, the

Respondent was employed as a Physical

Education substitute teacher, in the Dade

County School District. . . .

3. On or before February 2, 1996,

Respondent deposited stolen checks into her

own checking account worth $5,525.00.

Respondent, and her accomplice [ Ileana

DePhillips], had agreed to split the money

evenly and kept a hand written log to record

the stolen amounts. Respondent was arrested

on February 2, 1996, and charged on or about

February 23, 1996, with five counts of 3rd

Degree Grand Theft. The cases were Nolle

Prosequi by the state after the Respondent

completed the conditions of a Pre-Trial

Intervention program.

Based on such allegations, Petitioner charged that Respondent

violated Section 231.28(1)(c), Florida Statutes, "in that

Respondent has been guilty of gross immorality or an act

involving moral turpitude" (Count I); violated Section

231.28(1)(f), Florida Statutes, "in that Respondent, upon

investigation, has been found guilty of personal conduct which

seriously reduces [. . . her] effectiveness as an employee of the

school board" (Count II), and violated Section 231.28(1)(j),

Florida Statutes, "in that Respondent has otherwise violated the

provisions of law, the penalty for which is the revocation of the

teaching certificate" (Count III).

Respondent filed an election-of-rights which disputed the

allegations of fact contained in the Administrative Complaint and

requested a formal hearing. Consistent with such request,

Petitioner referred the matter to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct a formal hearing pursuant to Section 120.569 and

120.57(1), Florida Statutes.

At hearing, Petitioner called Sharon Jackson, Raquel

Saavedra, Ileana DePhillips, and Maria Dupree as witnesses, and

Petitioner's Exhibits 1-7 were received into evidence.

Respondent testified on her own behalf, and Respondent's

Exhibit 1 was received into evidence.

The hearing transcript was filed January 14, 2000, and the

parties were accorded 10 days from that date to file proposed

recommended orders. Petitioner elected to file such a proposal

and it has been duly-considered.

FINDINGS OF FACT

Background

1. Respondent, Maria Illescas-Dupree, held Florida

educator's certificate number 631483, covering the areas of

health education and physical education, which was valid for a

period extending from 1994 through June 30, 1999, at which time

it expired and was not renewed.

2. From 1988 to 1992, Respondent was employed by the School

Board of Dade County, Florida (School Board) as a physical

education instructor and assigned to Citrus Grove Elementary

School. Among those who knew of her, Respondent was regarded as

an extremely competent and professional educator, who was

dedicated to her students, who maintained an exceptional rapport

with faculty and staff, and who evidenced good moral character.

(Respondent's Exhibit 1)

3. In 1992, Respondent took maternal leave from her

employment with the School Board for the birth of her first

child, Maggie (now 7 years of age). That leave was subsequently

extended by the arrival of Respondent's second child, Caitlin

(now 6 years of age) and thereafter by the arrival of

Respondent's third child, Lauren (now 4 years of age). Given the

size of her family, as well as the expiration of her maternal

leave, 1/ Respondent resigned her employment with the School

Board (presumably in 1995) with the expectation that she would

continue in the role of homemaker and that her husband would

continue to support the family. However, Respondent's

expectations were short-lived, and by early September 1995, with

his abusive behavior escalating (with threats of physical

violence), Respondent was compelled to have her husband removed

from their home.

4. With her husband absent from the home, Respondent was

left without a source of income, with de minimus funds to support

the family, 2/ and without any permanent means of

transportation. However, Respondent's neighbor, Ileana

DePhillips, immediately offered her assistance.

5. Over the ensuing days Mrs. DePhillips provided groceries

for Respondent and her children, drove Respondent to the office

of the Department of Health and Rehabilitative Services (H.R.S.)

to apply for food stamps and to W.I.C. "to get. . . milk and

cereal, and basic things for the children since they were under

five-years-old." Mrs. DePhillips also accompanied Respondent to

court so she could obtain a restraining order against her

husband.

6. While apparently successful in obtaining a restraining

order, and notwithstanding his abusive character, Respondent

nevertheless allowed her husband to return to the family home

before the end of September 1995. 3/ At the time, Respondent

was hopeful for a reconciliation; however, by January 1996 she

was convinced otherwise, left the family home, and filed for

divorce. Today, Respondent is divorced, resides in Lakeland,

Florida, with her three daughters, and hopes to resume her

teaching career.

The claim of misconduct

7. Petitioner's cl aim of misconduct is premised on the

banking activities of Respondent and Mrs. DePhillips in October

1995 (shortly after Respondent's husband returned to the marital

home). It is Petitioner's contention that "Respondent deposited

stolen checks into her own checking account worth

$5,525.00 . . . [and that she] and her accomplice [ Ileana

DePhillips] had agreed to split the money." Respondent denies

any wrongdoing and avers she was not aware the checks were stolen

when they were deposited or when she wrote checks against the

account, and that she immediately ceased writing checks when she

learned from the bank that the checks (Mrs. DePhillips had asked

her to deposit) were returned unpaid and her own checks were

being dishonored. According to Respondent, she only allowed

Mrs. DePhillips to deposit the subject checks into her account as

an accommodation, and is of the opinion that Mrs. DePhillips

deceived her.

The transactions at issue

8. The first questionable transaction occurred on or about

October 11, 1995, when Mrs. DePhillips asked Respondent to

deposit her paycheck (from Angel Norberto Diaz, Petitioner's

Exhibit 2) in Respondent's bank account so she might clear and

access the funds. Apparently, Respondent, who felt a sense of

obligation for Mrs. DePhillips' recent acts of kindness, harbored

no reason to distrust her and had previously accommodated such

requests from Mrs. DePhillips (who did not have a bank account).

Again, Respondent agreed and deposited the check to her account

on October 11, 1995. Unknown to Respondent, as well as Mrs.

DePhillips' employer, Mrs. DePhillips had made the check for

$500.00, as opposed to the $175.00 that was due her.

9. At or about the same time she was in the process of

defrauding her employer, Mrs. DePhillips stole a book of checks

from her sister-in-law, Raquel Saavedra. 4/ Subsequently,

Mrs. DePhillips would write five checks to the order of "cash,"

and prevail on Respondent to deposit the checks to her account

(as she had previously done with Mr. Diaz' checks). When

Respondent accommodated Mrs. DePhillips by depositing the checks,

and subsequently wrote checks against the deposits, she did so

unwittingly, without knowledge of Mrs. DePhillips' unlawful

conduct. 5/

10. The checks Mrs. DePhillips stole an d forged on

Mrs. Saavedra's account, and prevailed on Respondent to allow her

to deposit to her (Respondent's) bank account, totaled $5,025.00,

were dated between October 12, 1995, and October 22, 1995, and

were deposited between October 13, 195, and October 23, 1995.

The transactions were as follows:

A. Check number 300, dated October 12,

1995, was drawn in the amount of $425.00 and

deposited on October 13, 1995.

B. Check number 248, dated October 20,

1995, was drawn in the amount of $500.00, and

deposited on October 20, 1995 (as part of a

larger deposit of $1,050.00).

C. Check number 226, drawn in the amount

of $2,025.00, and check number 232, drawn in

the amount of $875.00, were both dated

October 20, 1995, and were deposited on

October 23, 1995 (as part of a larger deposit

of $2,975.00).

D. Check number 234, dated October 22,

1995, was drawn in the amount of $1,200.00,

and deposited on October 23, 1995.

11. Against these deposits, as well as the deposit of the

Diaz check, Respondent wrote (with Mrs. DePhillips' permission or

at her request) numerous checks during the month of October 1995

before she received notice from her bank that the checks were

being returned unpaid and her own checks dishonored. The checks

she wrote totaled $5,312.73, with $2,021.25 being written for

Respondent's or her family's benefit, $1,257.77 being written for

Mrs. DePillips' or her family's benefit, and the balance

representing mixed purchases that benefited both families (i.e.,

a joint shopping trip to the grocery store). 6/ Facially, given

the size of her family (two adults and three children), as well

as the nature of the purchases or character of the store visited,

the purchases appear to represent routine living expenses, as

opposed to extravagances.

12. Given the proof, it must be resolved that Petitioner

has failed to demonstrate clearly and convincingly, that, as

alleged in the Administrative Complaint, "Respondent deposited

stolen checks into her own checking account worth $5,525.00 . . .

[and that she] and her accomplice [ Ileana DePhillips] had agreed

to split the money" or otherwise engaged in any unlawful or

improper conduct with regard to her banking activities. 7/

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569, 120.57(1), and 120.60(5),

Florida Statutes.

14. Where, as here, an agency proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes, and Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

That standard requires that "the evidence must be found to be

credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit

and the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." Solomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983).

15. Regardless of the disciplinary action sought to be

taken, it may be based only upon the offenses specifically

alleged in the Administrative Complaint. See Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

Hunter v. Department of Professional Regulation , 458 So. 2d 844

(Fla. 2d DCA 1984). Moreover, in determining whether Respondent

violated the provisions of Section 231.28(1), as alleged in the

Administrative Complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true, the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it."

Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

16. Pertinent to this case, Section 231.28(1), Florida

Statutes, provides that the Education Practices Commission may

discipline a licensee if it can be shown that such person:

(c) Has been guilty of gross immorality or

an act involving moral turpitude;

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the school board;

* * *

(j) Has otherwise violated the provisions

of law, the penalty for which is the

revocation of the teaching certificate. . . .

17. Rule 6B-4.009, Florida Administrative Code, defines

"immorality" and "moral turpitude" as follows:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

Finally, the term "gross" in conjunction with "immorality" has

heretofore been found to mean "immorality which involves an act

of misconduct that is serious, rather than minor in nature, and

which constitutes a flagrant disregard for proper moral

standards." Education Practices Commission v. Knox , 3 FALR 1373-

A (DOE 1981). Accord State ex rel. Tulledge v. Hollingsworth ,

146 So. 660, 661 (Fla. 1933), wherein the court observed:

Moral turpitude [or synonymously, "gross

immorality" as that term is also used in the

subject statute] involves the idea of

inherent baseness or depravity in the private

and social relations or duties owed by man to

man or by man to society. . . It has also

been defined as anything done contrary to

justice, honesty, principle, or good morals,

though it often involves the question of

intent as when unintentionally committed

through error of judgment when wrong was not

contemplated.

18. Here, for reasons appearing more fully in the Findings

of Fact, it cannot be resolved, clearly and convincingly, that

Respondent engaged in any misconduct with regard to her banking

practices. Consequently, Petitioner has failed to demonstrate

that Respondent violated the provisions of Section

231.28(1)(c)(f), and (j), Florida Statutes, as alleged in the

Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDE D that the a final order be entered dismissing the

Administrative Complaint.

DONE AND ENTERED this 11th day of February, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of February, 2000.

ENDNOTES

1/ The School Board limits maternal leave to a three-year

period.

2/ Respondent's bank statement (Petitioner's Exhibit 5) reflects

a balance of $92.97 as of September 12, 1995.

3/ According to Respondent, her husband was only out of the home

for approximately two weeks.

4/ According to Mrs. DePhillips, Respondent drove her to

Mrs. Saavedra's house on the day she stole the checks and then

she filled out the checks at issue (Petitioner's Exhibit 1) while

riding in the back seat of the car Respondent was driving.

According to Respondent, both she and Mrs. DePhillips were

passengers in car driven by a neighbor and she had no knowledge

of the stolen checks. Considering the proof, it is more likely,

as Respondent avers, that they rode with a neighbor. Moreover,

given that Mrs. DePhillps would subsequently prevail on

Respondent to deposit the checks to her account (without

informing her that the checks were stolen), and the checks bore

various dates and were deposited over time, it is improbable that

Mrs. DePhillips filled the checks out in Respondent's presence

and her testimony that she did so is rejected.

5/ In reaching such conclusion, Mrs. DePhillips' testimony (that

she informed Respondent that the checks were stolen) has not been

overlooked. However, her testimony regarding such disclosure was

conflicting and inconsistent with the objective proof and,

consequently, not persuasive. Notably, Mrs. DePhillips initially

offered the following explanation:

Q. Now, a moment ago, you said something

about--at some point, telling Maria you had

got the checks from your sister-in-law.

A. Yes.

Q. Were you all still writing checks?

A. No, no. It was stopped. It was

stopped.

Q. To your knowledge, did Maria ever write

any checks on that money after you told her

you got it from Raquel?

A. No, it was stopped. Her personal

checks you mean? Maria's personal checks? I

don't remember when was the last check drawn.

I cannot tell you that. Maybe the bank knows

it, but I don't. (Transcript, page 40.

Mrs. DePhillips subsequently testified that, although she could

not recall the date, she knows she informed Respondent in October

1995, that the checks were stolen. (Transcript, page 47) Later,

Mrs. DePhillips testified that she informed Respondent that the

checks were stolen before the second deposit or by October 15,

1995. (Transcript, pages 49 and 56) Mrs. DePhillips also

contradicted herself when she subsequently testified (despite her

earlier testimony that "I don't remember when was the last check

drawn.") that Respondent's check writing continued during

October, November, and December 1995. (Transcript, page 46)

Contrasted with Mrs. DePhillips' testimony, Respondent testified

that she was not aware the checks were stolen when they were

deposited or when she wrote checks against the deposits, and that

she ceased writing checks against the account when she learned

from the bank (presumably on receipt of her November 8, 1995,

bank statement, Petitioner's Exhibit 6) that the checks (Mrs.

DePhillips had asked her to deposit) were returned unpaid and her

own checks were being dishonored.

Clearly, Mrs. DePhillips testimony on these key matters was

contradictory. It is also improbable, given her pattern of

deception, that Mrs. DePhillips would suddenly inform Respondent

of her duplicity and expect her continued cooperation. Moreover,

the objective proof demonstrates Respondent ceased writing checks

(at or about the end of October 1995) when she received notice of

a problem from the bank. In this regard, Petitioner's Exhibit 4,

a list of the checks written against the account (which list was

prepared by the Respondent after she received notice from the

bank to allocate between them responsibility for their

purchases), clearly reflects that the bank was reimbursed

$1,670.00 on November 15, 1995, and $1,355.00 on November 20,

1995. It is unlikely that any reimbursement would be made while

check writing continued. Finally, there is no objective proof of

record that Respondent wrote any checks after October 1995.

Given the conflicts in Mrs. DePhillips' testimony, as well as the

inconsistencies with the objective proof, her testimony (that

Respondent was aware the checks she deposited for Mrs. DePhillips

were stolen when she wrote checks against them) must be rejected

as unreliable and otherwise unworthy of belief. Consequently,

there is no reason to reject or dismiss Respondent's testimony

that she had no knowledge of any impropriety until after she

received notice from her bank.

6/ Petitioner's Exhibit 7 contains copies of some of the checks

Respondent wrote during the relevant time frame (October 1995).

However, the exhibit also contains copies of checks Respondent

wrote in September 1995 which are not relevant to this case.

7/ In so concluding, it has not been overlooked that Petitioner

harbors a different view, and is of the opinion that there is

direct, as well as circumstantial evidence, that would compel a

different conclusion. ( See Petitioner's Proposed Recommended

Order, Supporting Argument.) As for the direct evidence,

Petitioner observes that:

The evidence that Respondent knowingly

wrote checks based on stolen/forged checks

deposited into her account is overwhelming.

Her co-defendant clearly said Respondent was

told of the nature of the deposits, and

continued to write checks based on those

deposits. Furthermore, any rational person

would certainly be on notice that the checks

were stolen. Respondent knew Ms. DePhillips

was not working regularly. Ms. DePhillips

began forging the checks while seated in the

back of a car Respondent was driving.

Respondent was obviously sharing in the

proceeds of the stolen and forged

checks. . . .

Notably, to accept Petitioner's view that there is direct

evidence to support the idea that Respondent "knowingly wrote

checks based on stolen/forged checks deposited to her account"

requires acceptance of Mrs. DePhillips' testimony that she "told

[Respondent] of the nature of the deposits, and [she] continued

to write checks based on those deposits." For reasons noted

supra , Ms. DePhillips' testimony in this regard has not been

credited, nor has her testimony that she "began forging the

checks while seated in the back of a car Respondent was driving"

been credited.

Without credible testimony from Mrs. DePhillips, all that remains

to suggest Respondent "knowingly wrote checks based on stolen

checks deposited to her account" is circumstantial evidence and

inferences Petitioner suggests should be drawn based on that

proof. With regard to these matters, Petitioner observes that:

. . . By her own admission she wrote over

$2,000.00 worth of checks that were for the

exclusive benefit of herself and her

children. She offers no credible explanation

to justify such an act. She did offer two

totally incredible explanations. First, she

said she was somehow paying Ms. DePhillips

back. It is obvious that writing checks for

her own expenditures is not paying back

Ms. DePhillips. Second, she says she thought

her husband was covering, or would cover the

checks. However, she also testified that she

was in fear for her life based on threats

made by her husband, that he threatened to

kill her and take the children, and that she

sought police protection from him. Under

such circumstances, it is totally incredible

that she would have any reasonable

expectation that her husband would cover

thousands of dollars in checks. The only

explanation that fits the evidence, is that

Respondent and Ms. DePhillips were partners

in crime. Ms. DePhillips stole and forged

the checks, and with Respondent's knowledge

and consent, deposited them in Respondent's

account. They then each shared in the

proceeds. . . .

While such is the conclusion Petitioner suggests should be drawn

from the proof, other explanations for Respondent's conduct are

also reasonable. First, while Respondent knew Mrs. DePhillips

was not working regularly, that offers no reason that, given

their past experiences together, she should suspect Mrs.

DePhillips of criminal conduct. Second, while she clearly wrote

checks for her own benefit against the proceeds, she did so with

Mrs. DePhillips permission (Transcript, page 43). Finally, it

was not unreasonable for Respondent to assume, with regard to the

checks written to benefit her family, that her husband, who had

recently returned to the family home and was its sole source of

income, would cover or repay those funds. Clearly, on balance,

the proof is also consistent with conduct that could not be

characterized as criminal or improper. Consequently, the

circumstantial evidence, and the inferences Petitioner suggests

should be drawn from it, do not and cannot (clearly and

convincingly) support a conclusion that Respondent engaged in any

criminal or improper conduct.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

Maria Dupree

1511 Mahaffey Circle

Lakeland, Florida 33811

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director

Professional Practices Services

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.