STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF EDUCATION, )

UNIVERSITY OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2267

)

GRAY P. HOWLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 13, 1980, in Gainesville, Florida. 1/

APPEARANCES

For Petitioner: Ashum Brown, Esquire

University of Florida

207 Tigert Hall Gainesville, Florida 32611

For Respondent: Rodney W. Smith, Esquire

Post Office Box 508 Gainesville, Florida 32602

ISSUE

The issue posed for decision herein is whether or not the Respondent, Gary

1. Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.

   
   

   FINDINGS OF FACT

   
   

   1. Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

      
      

   2. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979.

      
      

   3. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned

      that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay.

      
      

   4. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/

      
      

   5. On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee.

      
      

   6. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that:

      
      

      1. The matter not be sent to a plenary hearing;

      2. That the President determine that the suspension was unlawful;

      3. That Respondent be awarded back pay through June 30, 1979; and

      4. The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful.

         
         

   7. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/

      
      

   8. Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.)

      
      

   9. Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive.

      
      

   10. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant.

       Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

       
       

   12. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

       
       

   13. The authority of the Petitioner is derived from Rule Chapter 6C-5, Florida Administrative Code.

       
       

   14. Chapter 6C-5.27, Florida Administrative Code, provides in pertinent part that instructional, research faculty and administrative and professional staff members may be terminated for cause and other actions. "Just cause" as defined therein includes a finding that an employee has engaged in misconduct.

       
       

   15. As stated herein in the facts section of this Recommended Order, Officer Cowart testified, without contradiction, that Respondent should him a quantity of a substance later analyzed to be cocaine for a sum of three hundred dollars ($300.00). Without question, the possession and sale of cocaine is unlawful. Section 83.13(1)(a)(1), Florida Statutes. Officer Cowart's testimony clearly established that Respondent had on his person the unlawful substance which was ultimately sold to Officer Cowart for the sum of three hundred dollars ($300.00). In the face of the unrefuted testimony, a finding of misconduct within the meaning of Chapter 6C-5.27, Florida Administrative Code, can be supported notwithstanding the fact that the same charges were nolle prosequied pursuant to a deferred prosecution agreement. It is so concluded.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED.

RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.

ENDNOTES

1/ The parties were granted leave to submit proposed Recommended Orders. Petitioner's counsel submitted a proposed Recommended Order on September 15, 1980, which was considered by me in preparation of this Recommended Order.

2/ Pursuant to a pre-trial intervention order dated December 4, 1978, the State Attorney nolle prosequied the pending felony charges against Respondent, who was required to refrain from any violations of law for a period of one year; to exercise caution with respect to companions; to refrain from filing suit against Petitioner over job dismissal (although he was allowed to pursue his grievance) and to return the sum of $300.00 which had been paid him for the sale of cocaine to an undercover police officer.

3/ Respondent's counsel challenged the jurisdiction of this Division to consider the merits of this case. A hearing was held on Respondent's Motion to Dismiss the Administrative Complaint filed herein, which was denied by the undersigned by order dated March 27, 1980. Respondent's counsel realleged the same grounds in support of a Motion to Dismiss the subject administrative petition, which was denied, based on the aforementioned order dated March 27, 1980.

COPIES FURNISHED:

Ashum Brown, Esquire University of Florida

207 Tigert Hall Gainesville, Florida 32611

Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602

Robert Q. Marston, President University of Florida Gainesville, Florida 32611

Ralph H. Turlington, Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-002267

Orders for Case No: 79-002267