STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ATLANTIC UNIVERSITY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1882

)

JUNE JAMES, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:00 P. M. on February 16, 1976, in Room 132 of the Administration Building, Florida Atlantic University, Boca Raton, Florida.

APPEARANCES

For Petitioner: Leonard H. Klatt

Florida Atlantic University Boca Raton, Florida Attorney for Petitioner

For Respondent: Frank A. Kriedler

Mark Professional Building

141 Southeast Avenue C Post Office Box 881

Belle Glade, Florida 33430 WITNESSES

For Petitioner: Doctor Harold M. Harmes,

Associate Dean of Division

of Continuing Education, F.A.U.

Ms. Ruth Melfi, Secretary Division of Continuing Education

Ms. Otrie Moye

Coordinator of Management Planning, Division of Continuing Education, F.A.U.

Mr. Richard Allison

Former student of respondent

Mr. Frank Robinson

Former student of respondent

Mr. Johnny Hardge

Former student of respondent

Doctor Rodney Lane, Dean

Division of Continuing Education, F.A.U.

For Respondent: Doctor Harold M. Harmes, Associate Dean

Division of Continuing Education, F.A.U. Mr. June James, III, Respondent

FINDINGS OF FACT

Upon consideration of the pleadings and the evidence adduced at the hearings in this cause, the following pertinent facts are found:

1. On November 25, 1974, H. M. Harmes, then Director of the School Service Center, notified respondent by letter of his appointment to teach ED 598, "Crucial Issues in Education", during Quarter II, 1975. The letter of appointment explained respondent's salary and the materials and consultants available to him. The letter further stated:

   
   

   "This is a credit bearing contract short course; therefore all college and university regulations pertaining to credit courses must be observed. In addition, you should read the enclosed description of instructor's procedures and follow them carefully."

   
   

   The letter noted that it had an enclosure. It was the practice of the Division of Continuing education to include a copy of a document entitled "Credit Institute Instructor's Procedures" with each letter of appointment. Respondent accepted the appointment on November 26, 1974, by signing the letter and returning it to the Division of Continuing Education.

   
   

2. The course in question was a continuing education offering for teachers and administrators. The course was to begin on February 7, 1975 and meet for ten hours (three hours on Friday evening and seven hours on Saturday) on each of five weekends, the student earning five quarter credit hours upon successful completion.

   
   

3. The "Credit Institute Instructor's Procedures" contains several provisions regarding the registration of students. It provides that:

   
   

   "For programs which will meet fewer than ten times, this (registration) must be done at the first meeting. If the program will have ten or more meetings, registration may continue to the second meeting, but no later."

   Other provisions are "under no circumstances are you to accept or handle money from students. . . for payment of fees . . ." and "students may register only during the open registration period. Therefore, all students will appear on the first class roll. None will be added."

   
   

4. A flyer prepared by respondent to advertise the course provided for preregistration and stated that checks were to be made payable to Florida Atlantic University.

   
   

5. On or before the date the class first met on February 7, 1975, twenty students were properly registered.

   
   

6. On the third class meeting (Friday, February 14, 1976), three additional students appeared and inquired of respondent if they could register at that time. These three persons had wives or friends already registered in the class, and it was convenient for them to travel to and from class with those already registered.

   
   

7. Respondent allowed these three persons to register and instructed them to date their application February 7, 1975; and to make their checks payable to respondent. Respondent informed them that he would register them for the course if possible. If not, he would register them for the same course to be offered by respondent the following quarter. This arrangement was agreeable to the three students. At that time, respondent had not been appointed to teach the course for the following quarter. He was subsequently appointed to teach the same course for Quarters III and IV.

   
   

8. On February 14, 1975, the three late students filled out the application forms, dated them February 7th, and wrote checks payable to respondent. On February 18, 1975, respondent deposited the three checks in his personal checking account. He did not feel that the administration would permit the late applicants to register and therefore, without making inquiry, he did not register the three students for the winter quarter and the students did not receive credit for completing the course.

   
   

9. Respondent misplaced somewhere in his office the application forms completed by the three students in question. Although requests were received by respondent from each of the three students as to their receipt of credit for the course, respondent took no steps to register these students during the following two quarters in which he taught the course.

   
   

10. Sometime during the summer of 1975, respondent found the applications in his office. However, it was not until the University intervened on behalf of one of the three students - in September of 1975 - that respondent turned in the applications and paid the University $300.00 for their registration fees. The three students were then given credit and grades for the course.

    
    

11. By a complaint dated October 2, 1975, petitioner charged respondent with misconduct and sought to terminate his employment contract for cause. Respondent requested a hearing on the compliant and petitioner's President requested the Division of Administrative Hearings to conduct the hearing. The undersigned was assigned as the Hearing Officer.

    CONCLUSIONS OF LAW

    
    

12. Petitioner seeks to terminate respondent's employment contract for cause under the provisions of Florida Administrative Code, Rules 6C-5.07(1) (a)

    1. and 6C-5.07(2) (a). Rule 6C-5.07(1) (a) (vii) provides that a nontenured faculty member may be terminated for cause and that course shall be specified as provided in 6C-5.07(2) (a). The relevant portions of this latter rule provide as follows:

       
       

       "(a) Justifiable cause for termination of appointment shall comprise the following:

       1. Neglect of duty and responsibilities which impairs teaching, research, or other normal and expected services to the institution;

       2. Failure without justifiable cause to perform the terms of employment, or willful violation of the rules and regulations of the institution and the policies of the Board of Regents;

    1. Conduct, professional or personal, involving moral turpitude;

    2. Violation of the ethics of the academic profession;

    
    

13. It is the conclusion of the undersigned that the facts of this case, as set forth above, are not sufficient to demonstrate conduct involving moral turpitude or a violation of the ethics of the academic profession, as set forth in Rule 6C-5.07(2) (a) (iv) & (v). The evidence is sufficient to sustain a finding that respondent's original action in allowing the three students to register late was motivated by a desire to accommodate the convenience of these students in attending the course. However, the fault lies in the manner in which respondent accomplished or attempted to accomplish such late registration, and it is concluded that violations of Rule 6C-5.07 (2) (a) (i) and (ii) occurred in this regard.

    
    

14. Respondent knew that all checks for registration fees were to be made payable to the University. It was a violation of University policies and the express terms of his contract to teach this course to direct the students to make the checks payable to him and then deposit the checks into his own personal checking account. The failure to immediately make an attempt to register these students through proper administrative channels constitutes neglect of duty and responsibilities and constitutes a failure without justifiable cause to perform the terms of his employment and a willful violation of the rules and regulations of the University. Perhaps the most grievous conduct on respondent's part is the fact that had the matter not been brought to the attention of the University, the three students in question would never have received credit for this five-hour course. Not only did respondent fail to attempt to properly register them for the quarter they attended, he failed to register them for the following quarter and then again for the quarter following that. Thus, while respondent's conduct in this regard may have been originally motivated by good faith with the interest of his students in mind, his later actions clearly constituted neglect of duties and a willful violation of the rules and regulations of the University, as well as a failure without justifiable cause to perform the terms of his employment. Such conduct constitutes justifiable cause for termination of respondent's contract of employment.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's contract of employment be immediately terminated for cause.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of March, 1976.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1976.

COPIES FURNISHED:

Mr. Glenwood L. Creech President

Florida Atlantic University Boca Raton, Florida 33432

Leonard H. Klatt, Esquire University Attorney

Florida Atlantic University Boca Raton, Florida 33432

Frank A. Kriedler, Esquire Attorney for Respondent

141 S.E. Avenue C

P. O. Box 881

Belle Glade, Florida 33430

Docket for Case No: 75-001882

Orders for Case No: 75-001882