STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID E. BRYANT, Special Counsel ) to the Board of Trustees, ) Hillsborough Community College, ) Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 80-883

) (HCC 80-1B)

DORIS ZIMMER, )

)

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 the Conference Room adjacent to Room 417, Hillsborough County Courthouse Annex, 419 Pierce Street, Tampa, Florida. The date of the hearing was June 16, 1980.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

The Dixon Building

620 East Twiggs Street Tampa, Florida 33602

For Respondent: Edward E. Linney, Esquire

Linney and Linney

1513 Fourth Street North

St. Petersburg, Florida 33707 ISSUES

By this action, the Petitioner, David E. Bryant, Special Counsel to the Board of Trustees, Hillsborough Community College, Tampa, Florida, is attempting to discipline Doris Zimmer, Respondent, employee of the Board of Trustees, Hillsborough Community College, Florida. This prosecution is presented in accordance with the provisions set forth in Rule 6A-14.411, Florida Administrative Code. Specifically, it is alleged that:

1. Doris Zimmer did collect payment for a course of instruction not properly registered, enrolled and attended.

   
   

2. Doris Zimmer did sign names of students to transfer requests without the authorization and knowledge of said students.

   
   

3. Doris Zimmer did knowingly prepare and file an attendance sheet that was false. 1/

FINDINGS OF FACT

1. Doris Zimmer held the position of Secretary II, Community Services Department, Ybor Campus, Hillsborough Community College Tampa, Florida, during the pendency of the accusations set forth in the Petition for Discipline. In addition, she was employed within that time period in the position of part-time instructor at the Community College.

   
   

2. On November 14, 1978, the Respondent had received a letter from Sybil Barnes, Director, Community Services, Ybor Campus, Hillsborough Community College, stating that the Respondent had been recommended as a Community Services instructor for the Winter II Term of the 1978-1979 school year, subject to the final approval of the Hillsborough Community College Board of Trustees and subject to the possible withdrawal of this opportunity to act as instructor if the classes in question were canceled due to insufficient enrollment. A copy of this tentative letter of appointment may be found as Respondent's Exhibit 1 admitted into evidence. The letter of recommendation indicated that if the offer was withdrawn for lack of sufficient enrollment, the withdrawal would be without compensation to the Respondent.

   
   

3. The classes to be taught by the Respondent were non-credit classes to be held at the Ybor Campus running January 10, 1979, through February 28, 1979. The classes were STS 003-G25, also referred to as Shorthand I, and STS 004-G25, also referred to as Shorthand II.

   
   

4. The minimum number of students necessary for enrollment to conduct the above-referenced courses was fifteen (15). The Respondent was cognizant of the minimum requirement for student enrollment if cancellation of the class was to be avoided.

   
   

5. The only exception to this requirement was the possibility that the courses could be taught if an enrollment of thirteen (13) or fourteen (14) students was achieved, provided permission was given from the Provost at the Hillsborough Community College to hold short enrollment classes. This permission would be requested by Sybil Barnes by a written communication, to be responded to by the Provost. (An example of this form of request to allow the classes to proceed with less than the normal enrollment may be found as Petitioner's Exhibit 7 admitted into evidence.)

   
   

6. Zimmer was acquainted with the procedures for enrolling students for courses with less than the prescribed number and had this awareness at the time she undertook to teach the two courses in question.

   
   

7. When the term began for the course, STS 003-G25, twelve (12) students were enrolled, less than the prescribed number. Sybil Barnes never requested permission from the Provost to proceed with a lesser number of students and the Provost necessarily did not grant the permission.

   
   

8. The number of students enrolled in the Respondent's STS 004-G25 course exceeded the number fifteen (15).

   
   

9. Three (3) of the students who were enrolled in the course, STS 004-G25, were Diane Wiesman, Joan Roberts and Polly Pettus. There were approximately twenty (20) to twenty-five (25) in attendance at the first session of the course, STS 004-G25.

10. Subsequent to the commencement of the course, STS 003-G25, Zimmer caused the names of Polly Pettus, Joan Roberts and Diane Wiesman to be placed on her class roll for that course, bringing the number of students enrolled to the prescribed number fifteen (15). This roll may be found as Petitioner's Exhibit

    1 admitted into evidence.

    
    

11. While making these arrangements to have the three (3) students placed on the roll in the course, STS 003-G25, the Respondent completed an adjustment form which showed that Diane Wiesman had dropped course STS 004-G25 and adjusted to the course, STS 003-G25. A copy of this adjustment form may be found as Petitioner's Exhibit 2 admitted into evidence. On the form Zimmer signed Diane Wiesman's signature with a parenthetical remark, "per dz" and stated that the reason for the adjustment was due to class cancellation.

    
    

12. Wiesman had already received the course instruction in STS 003-G25 and she was unaware that the Respondent had completed the adjustment form, Petitioner's Exhibit 2. It was Wiesman's desire to drop STS 004-G25 and be reimbursed the $9.00 charge for the course and this is shown by the Petitioner's Exhibit 4 admitted into evidence. Wiesman did not want to retake STS 003-G25 and she never attended that second term 1979 course taught by the Respondent after the first night. Wiesman was also unaware that her name was carried on the class roll for STS 003-G25 in that session.

    
    

13. Wiesman never spoke to the Respondent about the subject of dropping course STS 004-G25 and adjusting to course STS 003-G25. (The policy for dropping courses and adjusting the students' enrollment status into another course was to have the student complete the adjustment form or, in the alternative, contact the student and receive the permission of the student to make those adjustments and the Respondent understood this policy.

    
    

14. Joan Roberts had signed for the second term 1979 course, STS 004-G25, but never attended the course. She had already taken the course, STS 003-G25, and did not wish to retake that course. Zimmer, in making the arrangement to carry Joan Roberts on the roll of her second term STS 003-G25 course, took the additional action of completing an adjustment form indicating that Roberts had dropped course STS 004-G25 and adjusted to course STS 003-G25. A copy of this adjustment form may be found as the Petitioner's Exhibit 6 admitted into evidence and reflects the signature of Joan Roberts with the parenthetical entry, "per dz". It carries Doris Zimmer's signature as advisor and states as a reason for this change that the class had been canceled. Roberts was unaware of the fact that Zimmer had caused Roberts's name to be placed on the class roll for the course, STS 003-G25, Petitioner's Exhibit 1, and was unaware of the completion of the adjustment form, Petitioner's Exhibit 6. Roberts had never authorized anyone to sign her name or to complete the adjustment form. She did not wish to retake the course, STS 003-G25, and she did not attend the second term course STS 003-G25. Roberts received a refund of $9.00 which represented the cost for course STS 004-G25.

    
    

15. Polly Pettus never attended the second term 1979 course, STS 003-G25, taught by Doris Zimmer.

    
    

16. Although none of the three (3) students who have been mentioned attended the second term 1979 course, STS 003-G25, taught by Doris Zimmer, other than one session by Wiesman; Polly Pettus was marked present eight (8) times and Diane Wiesman was marked present twice as reflected in Petitioner's Exhibit 1, the official class roll which was signed by the Respondent after she had marked these students present. Subsequent to the time that the matter of the students'

    non-attendance had been brought to the attention of the Respondent, she caused a line to be drawn through the indication of attendance.

    
    

17. The Respondent received $192.00 in payment for instruction given in the second term 1979 course, STS 003-G25, which was short three (3) students.

    
    

18. By way of explanation, the Respondent has indicated that she understood that she should have received their permission to transfer the students in question from course STS 004-G25 to course STS 003-G25, and that it was a mistake not to do it this time. She stated that she signed the adjustment forms thinking that the necessary authority would be given to conduct the course, STS 003-G25, in the second term 1979 with less than fifteen (15) students, but there is no indication in the record that she asked Sybil Barnes to request this authority from the Provost.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. The Respondent, through her counsel, objected to the admission of the Petitioner's Exhibits 1 through 8 and offered in support of her position certain case authority which was unavailable for review at the time and place of hearing. Therefore, ruling on the admission of these exhibits was reserved. As an aspect of the objection counsel for the Respondent objected to the testimony related to those exhibits that might be offered in the course of the hearing and this testimony was allowed to be presented in the way of a proffer, subject to a ruling on the question of the admissibility of the aforementioned exhibits.

    Upon consideration of the matter, Petitioner's Exhibit 1 through 8 are admitted and that testimony proffered in explanation of the exhibits is admitted.

    
    

21. During the course of the hearing, the Respondent in the person of her counsel, objected to the admissibility of certain admissions against interest that had been made by the Respondent to the private investigator employed by the Petitioner to investigate the case. The grounds for objection were that the investigator had failed to give the Respondent Miranda warnings before obtaining these admissions against interest and that the comments by the Respondent were the product of coercion. The cases cited for this proposition were as reflected in paragraph 2 above and after reviewing those cases, it is found that there does not exist the requirement for giving of Miranda warnings by a private investigator employed by an agency such as in the present case. Moreover, no coercion has been found and those admissions against interest which were allowed to be presented as a proffer in the course of the hearing are now admitted into evidence.

    
    

22. At the conclusion of the Petitioner's case, the Respondent in the person of her counsel moved to dismiss this action and a ruling was withheld pending the opportunity to review those cases cited by the Respondent`s counsel and referenced in paragraph 2 above. Upon consideration of the argument and after review of the cited authorities, the motion to dismiss is denied.

    
    

23. The Petitioner has charged the Respondent with a series of violations of Rule 6A-14.411, Florida Administrative Code. More specifically, the basis for the charge is Section 6A-14.411(6), Florida Administrative Code. It authorizes the Board of Trustees of Hillsborough Community College, Florida, to dismiss or to fix the terms under which the Respondent may continue in her 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.

    
    

24. Charge One (1) in the Petition accuses the Respondent of collecting payment for a course of instruction not properly registered, enrolled and attended. The facts reveal that the course, STS 003-G25, did not have the requisite number of students to allow it to go forward, in that fifteen (15) students were necessary to hold the class and only twelve (12) students were legitimately enrolled and no permission was granted by the Provost to allow the class to proceed with less than fifteen (15) students. The additional three (3) students, Pettus, Roberts and Wiesman, who were later fraudulently placed on the class roll at the instigation of the Respondent did not alleviate the problem. The course of instruction was not properly enrolled and the impropriety associated with the enrollment had been promoted by the Respondent. Absent the requisite enrollment and any adjustment to the normal enrollment by written request to and permission by the Provost, the course was not properly registered in the curriculum of the Community College.

    
    

25. The records of the Community College would reveal fifteen (15) students including the aforementioned students properly enrolled and, as a consequence, before this was brought to the attention of the Community College, compensation would be paid to the Respondent for teaching this course, and indeed Respondent was paid in the amount of $192.00. Had the Petitioner been aware of the shortage of students, the class would have been canceled due to insufficient enrollment and the offer to allow Doris Zimmer to act as an instructor would have been withdrawn without compensation, in keeping with the November 14, 1978, letter to Sybil Barnes, Director of Community Services, Ybor Campus, Hillsborough Community College. Having been misled about the true nature of the enrollment totals, the Petitioner paid the Repondent money to which she was not entitled and the steps which the Respondent took to obtain this payment constituted acts of immorality and misconduct in office, within the meaning of Section 6A-14.411(6), Florida Administrative Code, and the Respondent is subjected to the penalties set forth in that provision.

    
    

26. Charge Two (2) alleges that the Respondent signed the names of students to transfer request forms without the authorization and knowledge of those students. The facts reveal that the Respondent did execute the adjustment forms on the students, Diane Wiesman and Joan Roberts, without their authorization and knowledge and, in doing so, signed the students' signatures. Although the parenthetical entry, "per dz" was placed by the signatures, the Respondent's having executed the adjustment form without the authorization and knowledge of the students was an act of immorality and misconduct in office, within the meaning of Section 6A-14.411(6), Florida Administrative Code, and thereby subjects the Respondent to the penalties found therein.

    
    

27. Charge Three (3) alleges that the Respondent knowingly prepared and filed an attendance sheet that was false. This charge has been proven, in that the Respondent carried students on her roll which she knew to be improperly enrolled in the course, STS 003-G25, having arranged to have their names placed on said roll and indicated the attendance of students Polly Pettus and Diane Wiesman on occasions when the students did not attend class. Under the circumstances, these acts constituted immorality and misconduct in office, within the meaning of Section 6A-14.411(6), Florida Administrative Code, and subjects the Respondent to the penalties found therein.

RECOMMENDATION

Based upon the finding that the Respondent did violate the provisions of Section 6A-14.411(C), Florida Administrative Code, as alleged in Charges One (1), Two (2) and Three (3), it is RECOMMENDED that the Respondent, Doris Zimmer, be dismissed as an employee of Hillsborough Community College, Florida.

DONE AND ENTERED this 3rd 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 3rd day of July, 1980.

ENDNOTE

1/ At the conclusion of the case, Doris Zimmer, Respondent tendered as Respondent's Exhibit 2 a letter of resignation from her employment at the Hillsborough Community College stating that she desired the resignation to be effective July 1, 1980; however, she conditioned the letter of resignation with a comment that she wished to have this matter come to a final determination through the hearing process, to protect her reputation. Therefore, the Recommended Order is being entered notwithstanding the fact that the Respondent has theoretically resigned effective July 1, 1900.

COPIES FURNISHED:

David E. Bryant, Esquire The Dixon Building

620 East Twiggs Street Tampa, Florida 33602

Edward E. Linney, Esquire Linney and Linney

1513 Fourth Street North

St. Petersburg, Florida 33704

Docket for Case No: 80-000883

Orders for Case No: 80-000883