STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF SOUTH FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-271

)

MOHAMMAD MEHDI SADR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in the Dean's Conference Room 101, College of Engineering, University of South Florida, Tampa, Florida, commencing on May 17, 1977, and continuing on May 18, June 14, and June 15, 1977. The transcript of the proceedings was received by the undersigned on August 3, 1977.

APPEARANCES

For Petitioner: R. Wayne Miller, Esquire

Shackleford, Farrior, Stallings and Evans, P.A.

Post Office Box 3324 Tampa, Florida 33601

For Respondent: Guy E. Labalme, Esquire

725 East Kennedy, Number 409

Tampa, Florida 33602 INTRODUCTION

By a Complaint received by the Division of Administrative Hearings on February 8, 1977, the University of South Florida seeks to suspend the respondent Mohammad Mehdi Sadr from the University for one full year (12 months). As grounds therefor, petitioner alleges that respondent engaged in academic dishonesty on one or more exams while enrolled in an engineering course entitled ESC 303 (Cobol I) during Quarter I of the 1975-76 school year. It is further alleged that such conduct is the third incident of cheating which has been brought to the attention of the University. Petitioner asserts that the two other cheating allegations were admitted by respondent and resulted in probation and course failure for the first incident, and suspension for one quarter for the second incident.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In 1970, respondent left Iran and came to America to attend school, starting out at a junior college in Jacksonville, Florida. In 1972 or 1973, respondent enrolled at the University of South Florida, first in the chemical engineering program and then changing to computer technology.

   
   

2. In the fall quarter of the 1974-75 academic school year, respondent and another student were observed by Professor Miller and three examination proctors, one of whom was Dr. Melvin Anderson, engaging in inappropriate academic behavior during an examination in a course entitled EG13 337. This behavior involved the placing of scrap paper on a chair between the two students with both students utilizing and exchanging the papers. Miller reported the incident to the Dean of the College of Engineering. Dean Kopp spoke with both students about the incident. It was his best recollection that both students admitted cheating on this exam. He was certain that respondent Sadr did not deny the incident. Upon instruction from Dean Kopp, both students failed EGB

   337 and were placed on probation for the remainder of their program in the College of Engineering. The students were advised that "Should any further recurrence occur, a more stringent penalty will occur." (Exhibit 8) At the hearing, respondent admitted that he placed scrap paper on the desk between himself and the other student, but denied that any exchange of information passed between the students. Respondent took no ,steps to appeal the Dean's findings or penalty.

   
   

3. On the last day of the second quarter of the 1975-76 school year, professor Lee Weaver observed respondent engage in academic dishonesty during the final exam in EGS 462, a statistics course with respondent had great difficulty. Upon confrontation by Weaver, respondent immediately admitted that he had cheated on the examination. Weaver reported the incident to Dean Kopp and, by letter dated March 22, 1976, Dean Kopp advised respondent that:

   
   

   "Inasmuch as this is your second violation, I am requesting the Registrar to cancel your registration for Quarter III. You will be under suspension for one quarter in accordance with the rules of this College.

   Should a third violation occur, suspension will be permanent. In addition all previous deviations from your academic program are cancelled and when you return it will be necessary for you to seek program confirmation from Professor Payne."

   (Exhibit 15)

   
   

4. During the quarter preceding the Weaver cheating incident, respondent was enrolled in an evening course entitled ESC 303-901, a basic computer programming course also known as Cobol I. This course was taught by adjunct lecturer Marvin E. Sortor in a large teaching auditorium. Respondent attended these classes with his wife, Golnaz Bagheri, who was not officially enrolled in the class but who had permission from Sorter to sit in on the course. During the course, Sorter administered two quizzes, a midterm exam and a final exam.

5. Glyn D. Bass was enrolled in Cobol I and sat either directly behind or slightly to the left of respondent Sadr during the exams. During the first two tests, Bass observed incidents of a conversational nature between Sadr, his wife and a third male Iranian student. These conversations occurred just prior to handing in the exams. Bass did not report these incidents to the teacher. During the third exam, the midterm, Bass observed respondent write something on a small piece of paper and pass it to the person on his left. That person read it and passed it back to respondent. Then respondent passed it to his right to his wife. The three then engaged in a discussion. Bass also saw the three exchange examinations and converse, with respondent at one time holding all three exams. When Bass turned in his examination paper, he reported the incident to Professor Sortor, pointing out the three students involved. During the fourth test, Pass observed the same three individuals engage in conversation during the exam.

   
   

6. Mark W. Kimbel was enrolled in professor Sorter's Cobol I class during Quarter I of 1975. During the midterm exam, he was seated three or four tows behind and just to the left of respondent Sadr. Kimbel observed respondent talking to another student during the exam. He did not report this incident to Sorter, but did discuss it with several other students after the exam during the break.

   
   

7. Paul Engel sat directly in front of respondent and his wife during two exams given in Sorter's Cobol I during Quarter I, 1975. Engel was disturbed by conversations in a foreign language during two of the exams. During the midterm exam, respondent's wife tapped Engel on the shoulder and said the word "nine." Engel interpreted this as her asking for the answer to question number nine on the exam. Engel became angry about the disturbance the conversation behind him was causing, stopped taking the exam and wrote a note to professor Sorter on the back of his exam.

   
   

8. Upon returning from the break after the midterm exam, professor Sorter made an announcement to the class that an incident of cheating had been reported to him and that he would not tolerate cheating in his class. Sorter felt that since he did not personally observe the incident in question, his general announcement to the entire class was sufficient to dispose of the issue. Had he personally seen cheating occur during the exam, he would have discussed it with the student and reported it to the Dean. After the midterm exam, Sorter paid more attention to respondent and his wife. He did not observe any conversing by respondent during the final examination. Sorter did not teach at USF subsequent to June 17, 1976, and did not hear anything more about this midterm incident until approximately six to nine months prior to the administrative hearing.

   
   

9. Dr. Charles C.. Payne, Director of Engineering Technology at USF, was in charge of respondent's academic program. Payne first became aware of the Cobol I incident in July of 1976 when several students, including Mark Kimbel, were discussing respondent and incidents of academic dishonesty after one of Payne's classes held in St. Petersburg. Payne was informed that an Iranian student, subsequently identified as respondent, was "out to get" Payne. After this, the students began discussing with Payne incidents of academic dishonesty and complaining that they felt such conduct affected their grades. Two or three students informed Payne that they observed academic dishonesty in the form of talking and exchanging papers among three Iranian students during the Cobol I exams. Payne told the students that before he could take action on the matter, the students would have to put their comments in writing. Kimbel told Payne that Bass and Engel had witnessed the Cobol I incident. Payne thereafter

   contacted Bass and Engel and requested them to put their observations in writing.

   
   

10. Between July 23, 1976, and September 13, 1976, Dr. Payne received three letters from Bass, Kimbel and Engle (Exhibits 1-3). These letters were shown by Payne to Dean Kopp. On September 28, 1976, Dean Kopp met with Paul Engle to confirm that the incident referred to in his letter was the Cobol I taught in Quarter I of 1975 with Professor Sortor and that the alleged offender was respondent Sadr. (Exhibit A) Upon such confirmation, Dean Kopp began the process of setting up a faculty/student panel to hear the case against respondent. (Exhibit 14). Dr. Payne attempted to contact Sorter concerning the Cobol I incident. As noted in paragraph 8 above, Mr. Sortor's employment at USF terminated in mid-June, 1976. Sortor had made many short out-of-town trips during that summer and was in California for about two weeks in late September and early October. At some point, and it is not clear when, both Payne and Dr. Wimmert spoke to Sorter concerning the incident. In a letter dated March 3, 1977, Mr. Sortor related his recollection of the events which occurred in his class (Exhibit 10).

    
    

11. Dean Kopp inquired of Dan Walbolt, an attorney and respondent's assistant vice president of student affairs, as to the proper procedures to be followed in a case involving academic dishonesty. Apparently, Mr. Walbolt initially referred the inquiry to Leslie R. Stein, respondent's associate general counsel. Ms. Stein prepared a memorandum on October 13, 1976, to Dean Kopp advising him to be governed by the procedures contained in University Rules 6L-3.02 and 6L-6.02(2), and she listed eight specific steps to be followed, the first four of which pertained to the duties of the instructor of the course in which the incident occurred. (Exhibit H) At the time his. Stein prepared this memorandum, she was not aware of the specific facts surrounding the respondent's case and the memo she prepared contained excerpts from another case involving academic dishonesty within the College of Education. Had she been aware that the instructor had left the University and that the matter had been brought to the University's attention by students, she would not have written the same advice to Dean Kopp. Since the course instructor was no longer at the University, Mr. Wallboard advised Dean Kopp to use the University rules at the point where they fit the circumstances of this case.

    
    

12. On October 18, 1976, Dean Kopp appointed R. J. Wimmert (the department chairman) and Dr. Payne (respondent's program chairman) to look into the matter and determine whether further proceedings were warranted. (Exhibit 12) At this time, professor Wimmert was aware of the respondent's prior two incidents of academic dishonesty in classes with Professors Miller and Weaver. Wimmert and Payne met with respondent Sadr on October 22, 1976, and discussed with him the allegations of cheating made by the three students. Respondent denied any wrongdoings. By memorandum dated October 27, 1976, Payne and Wimmert made the following recommendation to Dean Kopp:

    
    

    "Both of us feel that if cheating has taken place, some appropriate action should be taken. It is our opinion, that there are sufficient grounds for investigating this matter and recommend you convene a student/ faculty committee to review the allegations and denials which have been made in this

    case and then recommend an appropriate course of action."

13. By letter dated October 27, 1976, Dean Kopp informed respondent that his program and department chairmen had recommended that a student/faculty hearing be held relative to respondent's academic dishonesty in professor Sortor's Cobol I course. Respondent was advised that Dr. Melvin Anderson would chair the hearing panel and that Dr. Crane would be the other faculty member. The student members were to be Robert Ruppenthal and Sandy Terepka. (Exhibit G) At this time, Dean Kopp was not aware of the fact that Dr. Anderson had been one of the proctors who had witnessed respondent's actions in Professor Miller's class in the Fall of 1974. On the same date, October 27, 1976, Dean Kopp wrote a memo to the hearing panel advising them that the file was being submitted to Dr. Anderson for his arrangement of the first meeting of the panel (Exhibit F).

    
    

14. Respondent had several discussions with Mr. Walbolt regarding the procedures to be followed in this matter. On November 9, 1976, respondent executed a document formally requesting Dean Kopp to appoint a student/faculty committee for advice prior to rendering a decision, pursuant to University Rule 6L-3.02(4), and waiving his rights to a formal hearing under the provisions of Chapter 120 of the Florida Statutes. (Exhibit J) By letter dated November 11, 1976, Dr. Mel Anderson, as the hearing committee chairman, sent a memorandum to the committee members, Payne, Walbolt, Wimmert, respondent and students Engle, Kimbel and Bass informing them that the hearing to consider the alleged cheating incident would be held on November 18, 1976, at 2:00 p.m. (Exhibit D)

    
    

15. Seeing Dr. Payne's name on this memo, and fearing that Dr. Payne would be a member of the panel, respondent withdrew his request for a hearing committee and requested the University to appoint a hearing Officer to hear the charges against him. This occurred on November 17, 1976. (Exhibit 13) Prior to this, respondent had discussed the appointment of a hearing officer with Mr. Walbolt. (Exhibit L) Thereafter, the University filed its complaint against respondent and the same was received by the Division of Administrative Hearings on February 8, 1977. The undersigned Hearing Officer was duly appointed to conduct the hearing.

    
    

16. At some time after students Kimbel and Engel wrote their letters concerning the Cobol I incident, respondent contacted these students at their home. Respondent asked both students to try to help him, and offered to pay Kimbel money to come to the hearing and retract his statement. Respondent told Kimbel that he would rather pay him than pay an attorney to defend him.

    
    

17. At the hearing, respondent attempted to adduce evidence of prejudice against respondent and/or Iranian students on the part of the students who wrote letters reporting the Cobol I incident and on the part of the faculty members of the College of Engineering. While the students expressed their disdain with incidents involving cheating, the record is void of any evidence which would indicate prejudice on the part of the complaining students against respondent or Iranians in general. Many of the faculty members possessed knowledge of `a highly inordinate percentage of incidents of academic dishonesty on the part of Iranian students. However, it has not been demonstrated that this knowledge or the knowledge of certain individual faculty members concerning respondent's prior charges of academic dishonesty played any significant or prejudicial role in their consideration of the facts concerning the Cobol I incident. The only evidence of possible prejudice illustrated was on the part of Professor Payne. Payne admitted that because of threats reported to him by other students, he considered, bodily harm and/or destruction of his property from respondent to be a possibility. Payne testified that his cautious attitude toward respondent did not affect his dealings with respondent regarding academic work.

18. Three other students enrolled in Sortor's Cobol I ()ass during Quarter I of 1975 testified at the hearing to the effect that they did not witness respondent engage in any form of academic dishonesty during the quizzes or exams. These students were not seated as close to respondent as were the complaining students Bass or Engle, nor could they unequivocally state that respondent did not take part in conversations or the exchanging of papers during the tests.

    
    

19. Respondent presented the testimony of four witnesses regarding respondent's character. Three were faculty members who had known respondent for five months, eight months and three years, respectively. All three expressed their opinion that cheating would be out of character for respondent. However, none of the three were aware that respondent had been disciplined by the University on two previous occasions. This fact, they admitted, might alter their opinion of respondent's character.

    
    

20. The University Rules which are applicable to the Cobol I incident are contained in the Florida Administrative Code as Rules 6C 4-3.02 and 6C 4-6.02.

    
    

    CONCLUSIONS OF LAW

    
    

21. Petitioner has charged respondent with academic dishonesty and, because of two prior incidents involving the same offense, seeks to suspend respondent from the University for one calendar year. Generally, respondent asserts that petitioner failed to prove its charge of academic dishonesty by competent, substantial evidence; that the University failed to comply with its own rules and regulations in this proceeding and that respondent was prejudiced thereby; that the University is barred by the doctrine of laches; and that the entire proceeding against respondent has been tainted by feelings of prejudice against Iranian students and/or respondent.

22. "Academic dishonesty" is defined in F.A.C. Rule 6C 4-6.02(1)(a) as: "Cheating, plagiarism, submitting another

    person's material as one's own, or doing work

    for which another person will receive academic credit. This includes the use of unauthorized books, notebooks or other sources in order to secure or give help in an examination; unauthorized copying of examination "

    
    

23. The undersigned has carefully reviewed the testimony of students Bass, Engel and Kimbel as well as the letters written by them, and concludes that the described activities of respondent during the midterm exam constitute academic dishonesty within the meaning of Rule 6C 4-6.02(1)(a). All three students were seated close to respondent. All three students overheard and were disturbed by conversation on respondent's part during the examination. Two of these students reported such activity to the instructor when they turned in their exams. Bass, who sat directly behind respondent during the midterm, observed an exchange of scrap paper and examinations between respondent and one or more other persons. Conversation during an examination is a strong indication that an exchange of information is occurring. That, coupled with the passing of notes and exam papers, is sufficient evidence of academic dishonesty during an examination.

    The fact that three other students who took the midterm exam at the same time did not witness these activities on respondent's part does not discredit the testimony of Bass, Engel or Kimbel. Because of one reason or another, either

    proximity or concentration on their own examination papers, the other students' attention was admittedly not directed toward respondent. These other students could not state with certainty that some form of academic dishonesty did not occur on respondent's part during the exam.

    
    

24. Having concluded that respondent was guilty of academic dishonesty during an examination in Cobol I in the Fall quarter of 1975, it is now necessary to determine whether the University complied with its own rules and regulations and afforded respondent due process of law. The procedure described in F.A.C. Rule 6C4-3.02 for adjudication of charges of academic dishonesty call for an initial handling by the instructor. In this case, professor Sortor did not witness the events reported to him by two students, and he therefore did not feel it proper to confront the respondent. Other faculty members, including the College Dean, opined that they would have pursued the matter further.

    Respondent contends that Sortor' s disposition of the incident was sufficient and that further prosecution by the University results in double jeopardy to respondent. The undersigned cannot agree with or accept this contention. The manner in which different instructors would handle a report of cheating on an examination is not determinative of the issues in this proceeding. The relevant inquiry is the University's responsibility in adjudicating a charge of academic dishonesty once it has been made aware of the charge. As stated in Rule 6C4- 3.02(4), F.A.C., "the final disposition of all cases of academic dishonesty rests with the dean of the college responsible for the course," subject to the student's rights of appeal. Here, the college dean initially became aware of the Cobol I incident through the reports of three student witnesses. Possessing such knowledge, it became his duty and responsibility to dispose of the issue in compliance with the University's rules. A review of the entire record in this matter leads the undersigned to conclude that the University's rules, as well as the requirements of due process of law, were applied to respondent pursuant to the circumstances of this particular case. As indicated in the findings of fact, Instructor Sortor was no longer employed at the University in July of 1976 when the University first became aware of the incident here in dispute. The University, through Professor Payne, therefore requested the students who had knowledge of the incident to report their observations in writing. Upon receipt of this information, Dean Kopp immediately set the process in motion by consulting with the vice president of academic affairs and convening a faculty/student panel. Respondent was informed of the charges against him within a reasonable period of time and was given an opportunity to present his version to Professors Payne and Wimmert. He was fully advised by Mr. Walbolt of the procedural options available to him. He first elected to pursue the internal student/faculty hearing procedure. When he erroneously thought that Dr. Payne would be a member of the hearing panel he was given the opportunity to request a hearing by an independent hearing officer from the Division of Administrative Hearings, and the procedural rules of such a hearing were explained to him. There was little else, if anything at all, that University officials could have done to timely and properly afford respondent all the requirements of due process of law.

    
    

25. The fact that Dr. Anderson, who had specifically witnessed a prior cheating incident, was originally appointed to chair the first bearing panel is irrelevant since that procedure was not utilized. Nor does it show any prejudice or lack of fairness on the part of the petitioner since Dean Kopp was not aware of Anderson's prior involvement. The same is true of Professors Payne and Wimmert's knowledge of other incidents of cheating on respondent's part. It would be difficult to imagine a situation where those faculty members who are directly responsible for a student's academic program would not have some knowledge of the student's prior academic career within the same college.

    Professor Payne's prior difficulties and even personal feelings regarding respondent were not shown to have an adverse impact upon Payne s consideration and handling of the incident in question. Nor, as stated in the findings of fact, has respondent demonstrated that feelings of prejudice against respondent or Iranian students in general permeated the institution of or procedures followed in adjudicating the charges against respondent.

    
    

26. Having determined that respondent was guilty of academic dishonesty and that the petitioner adequately complied with the requirements of its rules and of due process, the only remaining issue is that of the sanction to be imposed. Rule 6C4-6.02(1) lists academic dishonesty as one of the offenses for which students may be subject to disciplinary action up to and including suspension from the University. The facts developed at the hearing illustrated that the Cobol I incident, though occurring second in time, is the third incident of academic dishonesty in which respondent has been involved. For the first, respondent we placed on probation for the remainder of his program. For the second incident, respondent was suspended from the university for one academic quarter. A calendar year's suspension for a third incident is fully warranted under the facts of this case and is within the sanctions permitted by Rule 6C4-6.02.

    
    

27. The undersigned Nearing Officer has fully considered the remaining contentions urged by respondent, and finds them to be without merit. All prehearing and hearing motions have been previously ruled upon by the Hearing Officer with the exception of respondent's "motion to void petitioner's invoice for copying" filed on May 17, 1977. It appearing that said motion has merit, it is recommended that the University, in its final order, reduce the amount of said invoice from $63.00 to an amount not to exceed $10.00.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the University find respondent guilty of engaging in academic dishonesty in Cobol I during Quarter I of 1975 and that for such conduct respondent be suspended from the University for one calendar year.

Respectfully submitted and entered this 2nd day of September, 1977, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Steven Wenzel General Counsel

University of South Florida Tampa, Florida 33620

R. Wayne Miller, Esquire Post Office Box 3324 Tampa, Florida 33601

Guy E. Labalme, Esquire 725 East Kennedy, # 409

Tampa, Florida 33602

Docket for Case No: 77-000271

Orders for Case No: 77-000271