Pelham v. Superintendent of School Bd. of Wakulla County, AP-348

• Decision Date: 13 July 1983
• Docket Number: No. AP-348,AP-348
• Citation: 436 So.2d 951
• Parties: 13 Ed. Law Rep. 585 Jack D. PELHAM, Appellant, v. SUPERINTENDENT OF the SCHOOL BOARD OF WAKULLA COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 951

436 So.2d 951

13 Ed. Law Rep. 585

Jack D. PELHAM, Appellant, v. SUPERINTENDENT OF the SCHOOL BOARD OF WAKULLA COUNTY Florida, Appellee.

No. AP-348.

District Court of Appeal of Florida First District.

July 13, 1983.

Rehearings Denied Sept. 23, 1983.

David A. Barrett and Albert Craig Penson of Barrett, Bajoczky & Barrett, Tallahassee, for appellant.

Brian T. Hayes, Monticello, for appellee.

NIMMONS, Judge.

Pelham appeals from final agency action by the Wakulla County School Board dismissing him as a teacher from the Wakulla County school system. By reason of the failure of the hearing officer and School Board to address certain of Pelham's proposed findings of fact, we are impeded from reviewing the Board's final order and must remand for further proceedings.

Pelham was a continuing contract instructor in the Wakulla County school system and principal of the Wakulla High School on an annual contract basis. He was initially charged by the School Board with taking substantial sums of money from football game receipts and, after further investigation, eleven other charges were filed for converting school funds to his personal use. At the commencement of the hearing presided over by a hearing officer from the Division of Administrative Hearings (DOAH), the School Board voluntarily dismissed three of the charges leaving eight remaining counts which were prosecuted including those dealing with the alleged conversion of football game receipts. The School Board's post-hearing final order accepted the hearing officer's recommendation of acquittal with respect to the charges pertaining to the football game receipts and all but two of the remaining charges. The two charges which the Board found were sustained by the evidence and for which Pelham was dismissed centered around: (1) the alleged conversion in September, 1980, of $27.85 in school funds by Pelham's ordering parts for the repair of his lawn tractor which he had delivered to the school's small engine repair class; and (2) the alleged conversion in October, 1981, of $113.31 of school funds by reason of Pelham's ordering a tennis net which Pelham installed at his residence and which was paid for with school funds. The School Board's final order dismissed Pelham for misconduct in office. ¹

Prior to the submission by the hearing officer of his recommended order to the School Board, counsel for Pelham, as was his right under Section 120.57(1)(b)4, Florida Statutes, timely submitted to the hearing officer proposed findings of fact, some of which neither the hearing officer nor the School Board, respectively, addressed in the recommended order or the Board's final order.

With respect to the tennis net transaction, among the findings of fact urged by Pelham were: (1) that Pelham did not disguise the purchase as a Wakulla High School expense; (2) that the tennis net was charged to the school's General Fund Internal Account instead of the Athletic Fund Internal Account, the school having no use for a tennis net; (3) that Pelham recognized his responsibility to reimburse the school and at the time the school check was issued, he advised the school bookkeeper that he would reimburse the school with his own check; and (4) that expenditure of school funds in the above manner and with the intention of reimbursement was a matter of common practice in the Wakulla school system.

Pelham's proposed findings pertaining to the use of $27.85 in school funds for the purchase of engine parts to repair his lawn tractor included the proposed finding that "the practice of using Internal Account funds for purchasing parts for use in the Vocational Department, subject to reimbursement when the project is delivered to the owner, has been and continues to be an accepted practice."

This court has previously recognized that a school board is an agency and, therefore, subject to the operation of Chapter 120, Florida Statutes. Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). When a party to a Section 120.57 hearing submits proposed findings of fact, the agency must make an explicit ruling on each proposed finding unless such finding is subordinate, cumulative, immaterial or unnecessary. Section 120.59(2), Fla.Stat.; Wong v. Career Serv. Com'n, 371 So.2d 530 (Fla. 1st DCA 1979); Stuckey's of Eastman, Ga. v. Dept. of Transp., 340 So.2d 119 (Fla. 1st DCA 1976); Forrester v. Career Service Commission of Florida, 361 So.2d 220 (Fla. 1st DCA 1978); McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). Otherwise, the requirement of Section...