STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK SCAGLIONE, President, ) Hillsborough Community College, ) Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 80-132

) (HCC-79-4A)

GERARD PAGANO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 410, Legal Center, 725 East Kennedy Boulevard, Tampa, Florida. The date of the hearing was June 17, 1980.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

The Dixon Building 620 East Twiggs Street Tampa, Florida 33602

For Respondent: Joseph H. Ficarrotta, Esquire

Flagship Bank Building, Suite 802

315 Madison Street Tampa, Florida 33602

ISSUES

By this action, Petitioner, Frank Scaglione, President, Hillsborough Community College, Florida, has brought disciplinary action against Gerard Pagano, Respondent, employee of the Board of Trustees, Hillsborough Community College, Florida, in accordance with the provisions set forth in Rule 6A-14.411, Florida Administrative Code, and 6HX-10-1.10, Hillsborough Community College Rules. Specifically, it is alleged that:

1. Gerard Pagano used the College's telephone equipment for purposes other than for business of the College.

   
   

2. Gerard Pagano used the College's telephone equipment for his personal benefit.

   
   

3. Gerard Pagano collected unauthorized mileage reimbursement from Hillsborough Community College for his private vehicle.

FINDINGS OF FACT

1. Gerard Pagano is now employed by Hillsborough Community College, Tampa, Florida, as Director of Safety and Security. He became the permanent Director on February 23, 1978, after serving as Acting Director from January 19, 1979, through the February date. The most recent contract period for Pagano was from July 1, 1979, through June 30, 1980.

   
   

2. In his capacity as Director of Safety and Security, the Respondent has a number of employees who work for him and they are headquartered in a location at one of the campuses of Hillsborough Community College. Within the headquarters building, there are a number of phones. One of those phones is exchange number 876-9755.

   
   

3. All of the employees of the section for safety and security had access to that phone at all times pertinent to the allegations set out herein.

   
   

4. The facts reveal that between the months of July, 1977, and April, 1979, 203 calls were made from the exchange 876-9755 to the exchange 938-2539. The latter number is the home phone of the Respondent found at his residence address at 1407 Oleander Drive, Tarpon Springs, Florida. The calls were long distance calls and the total cost for making the calls was $123.67.

   
   

5. From the testimony adduced, it has not been specifically established who made all of the calls. It has been established that employees who were subordinates to the Respondent made numerous calls from the headquarters telephone to the Respondent's home phone for purposes of informing the Respondent of problems that had occurred on the various campuses of the Hillsborough Community College. This was in keeping with the policies established for the operation of the Safety and Security Section. The calls made by these empzz1oyees were for business purposes only.

   
   

6. It has also been established that calls were made from the headquarters telephone exchange 876-9755 to the home of the stepfather of the Respondent, exchange 848-0337. These calls, three in number, were long distance and cost

   $6.55. On at least one occasion Charles Inman, campus police officer in the Hillsborough Community College, Safety and Security Section, called to reach the Respondent at the home of the Respondent's stepfather. The facts presented do not absolutely establish the person or persons who originated the other two calls, assuming that Inman did not make them. The call or calls Inman did make were related to the business of the Community College only.

   
   

7. In addition to the phone calls which have been discussed above, Steve Purifoy, Internal Auditor for the Hillsborough Community College, had submitted a list of the long distance phone calls that had been made from the exchange 876-9755 to various locations within the State of Florida. The purpose of

   submitting this list was to obtain the assistance of the Respondent in following up the State Auditor General's external audit in which the external auditors were attempting to determine the reason for the several calls. A copy of the Purifoy memorandum which made the request for assistance and the take-off sheets related to the calls may be found as the Petitioner's Composite Exhibit 1 admitted into evidence, excluding those calls which are reflected prior to January 19, 1978, the beginning date of the Respondent's service as Director of Safety and Security.

   
   

8. Within this group of calls is a number of calls to the State Representative from the Hillsborough County Legislative Delegation. These calls

   were made by the Respondent and Charles Inman. They were made at the instigation of President Frank Scaglione, Hillsborough Community College, and were for the purpose of seeking the assistance of those members of the Legislative Delegation on the question of a change in status to the Safety and Security Section, Hillsborough Community College, and as such, were related to business of the Community College.

   
   

9. Other calls questioned by the audit process which date from January 19, 1978, fall into two categories. The first category is the category which explains the purpose of the call and they relate to business of the Community College. The second category indicates the word "unknown", which means that the caller, individual/business called, purpose served by the call and question of whether the Community College was reimbursed for such call, are undetermined. Although the specifics of these calls are undetermined, it is not possible to impute responsibility for the calls to the Respondent based upon the facts produced in the course of the hearing.

   
   

10. During the time of the subject calls, there was no requirement that the caller log his name and indicate the individual or business being called, the purpose served by the call or that comment be made on the question of possible reimbursement for calls not for public purposes.

    
    

11. Beginning August, 1978, through March, 1979, the Respondent submitted requests for mileage reimbursement associated with purported travel which he made in connection with his duties as Director of Safety and Security. Copies of these reimbursement forms may be found as Petitioner's Exhibits 3 through 10. The Respondent received the amount of reimbursement funds shown on the face of the reimbursement requests. The forms submitted for reimbursement did not indicate the destination of the trip, notwithstanding the stated requirement in the form that the destination be shown. 1/ Instead, the Respondent indicated that all trips were for "Routine District Supervision". This deviation from the stated policy was allowed by the Vice President of the Community College in charge of the approval of travel vouchers and the Respondent operated in keeping with the authorized deviation from procedures. Nonetheless, the mileage claims as shown in the Petitioner's Exhibits 3 through 10 are not accurate depictions of the actual mileage driven by the Respondent in the execution of his duties. They are in fact rough estimates which the Respondent allowed his secretary to make in completing the forms for him, to be signed by the Respondent or signed by the secretary for the Respondent.

    
    

12. In the course of the testimony, the Respondent by his remarks and those of his secretary tried to establish that the secretary had been careless in transposing the specific mileage figures from his desk calendar to the reimbursement request form, meaning that she had lost those desk calendar computations prior to reconstructing the mileage on the reimbursement request forms. Whatever the real explanation of the matter, the Respondent was responsible for the accuracy of the reimbursement request form and he allowed that form to be submitted when he knew or should have known that the figures reflected in the reimbursement request forms were not accurate. This is further borne out by. the fact that all of the increments for mileage claims, with the exception of one, are all rounded to the nearest increment of five, ten, fifteen or twenty. The forms also show that the travel in his private automobile between the ending mileage of one date and the beginning mileage of the following date to be fifteen miles, when the roundtrip mileage between his office of employment and residence is approximately fifty miles.

13. (The method used by the Respondent in reporting his mileage subsequently changed in March, 1979, and he resubmitted his request as found in the Petitioner's Exhibit 10, with a copy of the resubmittal being found as Petitioner's Exhibit No. 11 admitted into evidence. This shows the exact mileage and the destination and purpose for the trip. This promoted an adjustment in the mileage reimbursement to which the Respondent was entitled.)

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

15. At the close of the case in chief of the Petitioner, Respondent moved to dismiss stating as a ground that the Petitioner had failed to make the prima facie showing necessary to establish the violations as alleged. Upon consideration of that motion, the same is hereby denied.

    
    

16. The Petitioner has charged the Respondent with a series of violations of Rule 6A-14.411, Florida Administrative Code. The particular aspect of that Rule which has prospective application to these events is that provisions Section 6A-14.411(6), Florida Administrative Code. It authorizes the Board of Trustees of Hillsborough Community College, Florida, to dismiss or fix the terms under which the Respondent may continue in employment, if the accusations set forth in the Petition/Administrative Complaint are found to be true and if those accusations constitute immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude.

    
    

17. Charge One (1) in the Petition alleges that the Respondent used the College's telephone equipment for purposes other than the business of the College.

    
    

18. To the extent that it was directly shown that the Respondent used the telephone equipment, the equipment was used only for the business of the College.

    
    

19. The usage of the telephone equipment to call the Respondent's home phone in Tarpon Springs and the home phone of the Respondent's stepfather could by a circumstantial evidence theory, suggest that the Respondent made some of the calls and that he made some of the calls for purposes other than business of the College; however, when all facts are considered, this theory is not a viable one. It is not viable because it has been established as a matter of fact that some of the calls were made by other employees for legitimate College business, and this proof so dilutes the circumstantial evidence theory of prosecution as to cause its rejection. There being no direct proof that the Respondent called his home phone in Tarpon Springs and the home phone exchange assigned to his stepfather, the Petitioner has failed to establish a violation associated with calls to the two numbers in question.

    
    

20. That category of calls as reflected in the Petitioner's Composite Exhibit 1 which are described as "unknown" meaning that the caller's name and department, the individual/business called, the purpose served by the call and the question of reimbursement to the Community College for calls other than for public purpose were not directly attributable to the Respondent. Moreover, the circumstantial evidence of his possible participation in these calls is insufficient to bring about a determination that the Respondent was responsible for the calls.

21. In summary, the Petitioner has failed to prove that the Respondent has violated Section 6A-14.411(6), Florida Administrative Code, as set forth in Charge One (1).

    
    

22. Charge Two (2) in the Petition/Administrative Complaint is a corollary to Charge One (1), in that it accuses the Respondent of using the College's telephone equipment for his personal benefit. For the reasons as explained in the discussion of Charge One (1), the Petitioner has failed to prove a violation of Section 6A-14.411(6), Florida Administrative Code, related to Charge Two (2).

    
    

23. Charge Three (3) in the Petition alleges that the Respondent collected unauthorized mileage reimbursement from Hillsborough Community College for his private vehicle. The facts of this case reveal that the Respondent did collect unauthorized mileage reimbursement in that he submitted inaccurate mileage reimbursement reguests for using his private automobile in the period August, 1978, through March, 1979, which he knew or should have known were inaccurate. This was an act of immorality, misconduct in office and incompetence, within the meaning of Section 6A-14.411, Florida Administrative Code, and the Respondent is thereby subject to the penalties found in that provision.

    
    

24. The Petitioner has stated that the acts of the Respondent constitute a violation of Rule 6HX-10-1.10, Hillsborough Community College Rules; however, those Rules were never offered as evidence and are not found in the Official Compilation of the Rules and Regulations of the State of Florida. Consequently, the Rule has not been considered in arriving at these Conclusions of Law.

RECOMMENDATION

Having found that the Respondent is not responsible for the violations alleged in Charges One (1) and Two (2), it is RECOMMENDED that those charges be dismissed.

Based upon the finding that the Respondent was responsible for the acts as alleged in Charge Three (3) and in keeping with the authority set forth in Rule 6A-14.411(6), Florida Administrative Code, it is RECOMMENDED that the Respondent, Gerald Pagano, be suspended without pay for a period of ten (10) days and that all reimbursement claims for mileage which have been honored by the Petitioner be repaid by the Respondent for the period August, 1978, through March, 1979, unless the Respondent can offer more complete documentation than is found in Petitioner's Exhibits 3 through 10.

DONE AND ENTERED this 2nd day of July, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1980.

ENDNOTE

1/ Copies of the forms submitted as Petitioner's Exhibits 3 through 10 do not contain back sheets of instructions related to trip destination.

COPIES FURNISHED:

David E. Bryant, Esquire The Dixon Building

620 East Twiggs Street Tampa, Florida 33602

Joseph H. Ficarrotta, Esquire Suite 802, Flagship Bank Building

315 Madison Street Tampa, Florida 33602

Docket for Case No: 80-000132

Orders for Case No: 80-000132