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. 80-884

) (HCC 80-3B)

CARL NORTON, )

)

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: Carl H. Norton

3905 East Louisiana

Tampa, Florida 33610 ISSUE

By this action the Petitioner, David E. Bryant, Special Counsel to the Board of Trustees, Hillsborough Community College, Tarna, Florida, is attempting to discipline Carl H. Norton, Respondent, employee of she Board of Trustees, Hillsborough Community College, Florida, in accordance with the provisions set forth in Rule 6A-14.411, Florida Administrative Code. Specifically, it is alleged that:

1. Carl H. Norton did wrongfully obtain procurement and contract for a course of instruction.

   
   

2. Carl H. Norton did wrongfully obtain payment for course of instruction not properly regisLered, enrolled and attended.

   
   

3. Carl H. Norton did pay a portion of tuition for students improperly transferred to another course of instruction.

4. Carl H. Norton did wrongfully aid and assist in transferring students to a course of instruction without the students' knowledge or authorization.

   
   

5. Carl H. Norton knowingly prepared and filed an attendance roll sheet that was false.

FINDINGS OF FACT

1. Carl H. Norton is currently a part-time instructor at the Hillsborough Community College in Tampa, Florida, and held that position during the February, 1979, Term in the academic year 1978-1979. That Term lasted from January 27, 1979, through March 17, 1979. During the session, the Respondent, Norton, taught Art 013-G25, a non-credit course, with optional student attendance. He was paid $288.00 for his services.

   
   

2. The administration of the College purportedly authorized the course to be conducted only if a minimum enrollment figure was achieved. This enrollment figure was ten (10) students. (See Respondent's Exhibit 1 admitted into evidence.) Notwithstanding the statement of minimum enrollment, the February 17, 1979, reporting period for class attendance showed nine (9) students as reflected by the class roll, and there is no indication that the administration attempted to close the course at that juncture.

   
   

3. In the next reporting period, March 17, 1979, thirteen (13) students were shown by the clams roll to be in attendance for the course of instruction. (See Petitioner's Exhibit 2 admitted into evidence.)

   
   

4. Two of the named students reported on the class roll found in Petitioner's Exhibit 2 and signed by Carl H. Norton as instructor were Beatrice

   K. Parson and Irene Powe. Norton had marked those students in attendance of eight (8) separate class meetings, when in fact the students had not been in attendance on those occasions or at any other time.

   
   

5. Norton's act of marking the students Parson and Powe as attending was not through mistake or oversight. This activity was in keeping with an arrangement which he had made with another instructor, one David C. Dye, in which Dye was to request that students Parson and Powe allow him to drop them from his class roll in the course, Art 005-H27. The students in question would then be allowed to continue to attend Dye's class, while their names were added to Norton's class roll in Art 013-G25.

   
   

6. The students were in fact dropped from Dye's class roll, as may be seen in examining Dye's class roll for the reporting period March 7, 1979. As stated bcfore, they were added to the Norton class roll.

   
   

7. The idea that Dye and Norton had in mind was to achieve the minimum number of students necessary to authorize the class, Art 013-G25, to meet during the February, 1979, term. With the addition of Parson and Powe to the class roll in the reporting period, March 7, 1979, Carl H. Norton had three (3) more students than were necessary for authorization.

   
   

8. Instructor Dye spoke with student Powe and asked her if it would be acceptable to transfer her to Norton's class, because according to Dye, his class was full. He assured her that her instruction would continue in the same way as before with Dye being her teacher. Dye made no communication with Parson and the Respondent, Norton, never met with either Powe or Parson.

9. One Doris Zimmer, an employee of the Community College, completed a "drop and add" form for the students, Powe and Parson. In the records of the Community College, they were removed from the Art 005-1127 cour;t and added to the Art 013-G25 course. (See Petitioner's Composite Exhibits 5 and 6 admitted into evidence.)

   
   

10. Parson and Powe were unaware of any adjustment of their enrollment and did not sign the adjustment form as would appear in the above-referenced exhibit.

    
    

11. Parson and Powe were unaware Norton was carrying them on his roll and had marked them present.

    
    

12. Finally, Art 005-H27 carried a tuition fee of $12.00 as opposed to Art 013-G25, which called for a tuition fee of $20.00. The $8.00 differential in cost for each student was paid by Norton.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. 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 provision 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 his 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.

    
    

15. In furtherance of the accusation, the Petitioner has accused the Respondent in Charge One (1) of wrongfully obtaining the procurement and contract for a course of instruction. Based upon an examination of the facts of this case and statement of authority for disciplinary action found in the aforementioned section of the Florida Administrative Code, it is concluded that the Petitioner has failed to prove the charge. From the facts presented, it was evident that the number of students enrolled in Art 013-G25 was insufficient to form the course, in that nine (9) students were enrolled and ten (10) students were necessary to form the course. Nonetheless, there is no showing that the Respondent wrongfully or otherwise "procured" this course of instruction and wrongfully "contracted" to conduct a course which was short one student. The evidence by inference demonstrates that the Community College was willing to undertake to establish this course with an insufficient number of students and to pay the Respondent for his services. Later, during the advent of the term in question, thirteen (13) students were enrolled in the program and, although two

    (2) were not legitimately enrolled, this left eleven (11) students enrolled, which exceeds the number prescribed by one. Again, in view of these facts, the Resondent cannot be found to have wrongfully "procured" and wrongfully "contracted" for the course of instruction. Therefore, there is no violation of Rule 6A-14.411, Florida Administrative Code, as alleged.

    
    

16. Charge Two (2) of the Petition/Administrative Complaint states that the Respondent wrongfully obtained payment for a course of instruction not proerly registered, enrolled and attended. Again, the registration of the

    course, Art 013-G25, was a determination made by thc Community College and there is no showing that the Respondent had resonsiblity for the registration or caused the registration to be improperly made. The Respondent did act in concert with others to promote the improper enrollment off the students, Beatrice K. Parson and Irene Powe, but this involvement was not such that the payment received was wrongfully obtained, when taking into account the acquiescence of the Community College in allowing the course to be undertaken initially with nine (9) students instead of the prescribed ten (10) and in view of the fact that eleven (11) students were properly enrolled in the course at a later date.

    
    

17. As stated in the Findings of Fact, there is no requirement that the course, Art 013-G25, be attended, ergo payment obtained for instruction given in classes where students acted within their discretion and did not attend does not lead to the conclusion that Respondent wrongfully obtained payment.

    
    

18. In summary, the Respondent is not found to be guilty of violation of Rule 6A-14.411, Florida Administrative Code, as alleged in Charge Two (2).

    
    

19. Charge Three (3) to the Petition/Administrative Complaint accuses the Respondent of paying a portion of the tuition for students that were improperly transferred to another course of instruction. It was improper for the Respondent to participate in the transfer of the students, Beatrice K. Parson and Irene Powe, in the manner shown by the facts of this case and to the extent that the Respondent's payment of the tuition of those students which represented a differential between the course cost for Art 005-H27 and Art 013-G25, contributed to the deception that these students were in fact enrolled in the class Art 013-G25, this payment constituted misconduct in office within the meaning of Section 6A-14.411(6), Florida Administrative Code, and the Respondent is held to answer to penalties which are prescribed for such violation.

    
    

20. Charge Four (4) of the Petition/Administrative Complaint alleges that the Respondent wrongfully aided and assisted in the transferring of students to a course of instruction without the students' knowledge or authorization. The Respondent did aid and assist in the transfer of Beatrice K. Parson and Irene Powe to the course of instruction, Art 013-G25, without their knowledge or authorization and by doing so violated Section 6A-14.411(6), Florida Administrative Code, in that this participation by the Respondent constitutes misconduct in office and subjects him to the penalties found in that section.

    
    

21. The remaining charge, Charge Five (5), to the Petition/Administrative Complaint accuses the Respondent of knowingly preparing and filing an attendance roll sheet that was false. The Respondent did in fact prepare and file the attendance roll sheet indicating that Beatrice K. Parson and Irene Powe had been in attendance on eight (8) occasions when in fact they had not, and this constitutes a violation of Section 6A-14.411(6), Florida Administrative Code, in that the falsification was an act of immorality and misconduct in office. Consequently, the Respondent may be penalized in keeping with the terms and conditions of this provision.

RECOMMENDATION

Based upon the finding that the Respondent was guilty of those Charges Three (3), Four (4) and Five (5), and in keeping with the authority set forth in Section 6A-14.411(6), Florida Administrative Code, it is RECOMMENDED that the Respondent, Carl H. Norton, be dismissed as an employee of Hillsborough Community College, Florida.

DONE AND ENTERED this 30th day of June, 1980, in Tallahassee, Florida.

COPIES FURNISHED:

David E. Bryant, Esquire The Dixon Building

620 East Twiggs Street Tampa, Florida 33602

Carl H. Norton

3905 East Louisiana

Tampa, Florida 33610

CHARLES C. ADAMS, 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 30th day of June, 1980.

Docket for Case No: 80-000884

Orders for Case No: 80-000884