STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBROSE GARNER, President )

of Hillsborough Community )

College, Tampa, Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1701

) (HCC NO. 80-2B)

DAVID C. DYE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with tie Division of Administrative Hearings. This hearing was conducted in Room 605, Park Trammell Building, 1313 Tampa Street, Tampa, Florida. The hearing was held on October 29, 1980.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

401 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: John J. Chamblee, Jr., Esquire

Frank, Chamblee & Kelly, P.A.

341 Plant Avenue Tampa, Florida 33606

ISSUE

By this action, the Petitioner, Ambrose Garner, President of Hillsborough Community College, Tampa, Florida, is attempting to discipline David C. Dye, Respondent, employee of the 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. David C. Dye did aid and assist another college instructor in wrongfully obtaining the procurement and contract for a course of instruction.

   
   

2. David C. Dye did knowingly aid and assist another college instructor in wrongfully obtaining payment for a course of instruction.

   
   

3. David C. Dye did pay or assist another in paying a portion of tuition for students improperly transferred to another class of instruction.

   
   

4. David C. Dye did aid and assist another college instructor in the wrongful transfer of students to another course of instruction without the students' knowledge or authorization.

FINDINGS OF FACT

1. David C. Dye is currently an Associate Professor at the Hillsborough Community College in Tampa, Florida. In the Winter Term for that institution, beginning January 27, 1979, and concluding March 17, 1979, the Respondent Dye served as a part-time Community Service faculty member and taught a course referred to by number as Art 005-H27, Pottery. This was an elective Community Service course not for credit, with student attendance optional. For his work, the Respondent was paid $208.00 by the Hillsborough Community College.

   
   

2. The Respondent's pottery class was formed and met during the aforementioned Winter Term. Among the students enrolled in that class were Beatrice K. Parson and Irene Powe.

   
   

3. The pottery class taught by Dye in the Winter Term of 1979 was scheduled to meet on Saturday and did in fact meet at that time. Although the students, Powe and Parson, were scheduled to attend the Saturday class, for reasons of convenience they attended the Tuesday session of a Tuesday and Thursday academic art course that was being taught by the Respondent. This pattern of attendance took place for a period of two weeks in the Winter Term.

   
   

4. In view of the different status between academic students and Community Service non-credit students and the perceived needs of a fellow instructor, one Carl H. Norton, the Respondent undertook to have the students, Powe and Parson, transferred to Carl H. Norton's class, Art 013-G25, Sculpture, a class in the Hillsborough Community College not for credit. Dye also had a concern for the student, Beatrice Parson, who was legally blind and who needed special instruction, which the Respondent felt he could not afford her in the context of his academic class on Tuesday and which he felt Norton could give her in his, Norton's Saturday class. Specifically, Dye's concern about having non-academic students attending the academic course on Tuesday pertained to his ability to devote sufficient attention to these non-academic students and still instruct the regular class.

   
   

5. On the subject of Norton's problem, in a discussion with Norton he was led to believe that Norton's course would not be allowed to go forward due to an insufficient number of students enrolled. Norton explained to him in the beginning of the term that thirteen students were in attendance and it was the Respondent's and Norton's perception that fifteen students would be necessary to conduct that class. In reality, a minimum enrollment of ten students would have been sufficient and Norton had ten students even without Powe and Parson. (The minimum enrollment number of ten is borne out by a copy of the syllabus of the Norton sculpture class for the Winter Term approving the minimum enrollment by the Community College administration. A copy of this document may be found as Respondent's Exhibit No. 6 admitted into evidence.)

   
   

6. Dye and Norton envisioned that Dye would speak with the students, Powe and Parson, about transferring to the Norton Saturday class and arrange for that transfer. Beyond the point of transfer, Dye hoped that Powe and Parson would attend the Norton class and also attend his Tuesday and Thursday sessions of the academic course as they desired. Dye received no remuneration from Norton in furtherance of this agreement to transfer the students, he did not discuss with Norton the method to be used in placing the transferred students on Norton's classroll, nor the method to be used in indicating their attendance at the classes. The Respondent took no action to see that Norton was paid for delivering the course of instruction in Art 013-G25, Sculpture.

7. Dye was unaware that there was a differential between the salary that Norton was being paid and that of Dye, in that Norton was paid $288.00 for the course, Art 013-G25, which caused a difference in tuition for the students. Dye did not become aware of this disparity until after the instructional term in question. That differential for Powe and Parson once transferred to the Norton class was paid for by Carl Norton, without the knowledge of Dye.

   
   

8. The transfer of the students was effectuated beginning in the third week of the academic course being taught by Dye on Tuesday and Thursday. (That course had an earlier starting time than the pottery course in which those students were enrolled, by one or two weeks.)

   
   

9. The Respondent explained to Powe his perception that Norton needed extra students and also explained that Norton might be able to help Parson, keeping in mind her special circumstance related to blindness. Because Powe had accompanied Parson to the session, Dye expected Powe to be willing to make the transfer also, to assist in bringing Parson to the class. Powe acquiesced in the transfer arrangement by giving her permission to transfer her name from the Dye course to the Norton course. She did not take steps to further this arrangement and she did not attend Norton's classes, notwithstanding the fact that the Norton Saturday class met in relative proximity to Dye's Saturday class. After this conversation with Dye, she attended two more Saturday sessions with Dye and then dropped out.

   
   

10. The following week beyond the conversation with Powe, Dye spoke with Beatrice Parson and although Parson seemed confused by the whole arrangement, she did in fact acquiesce in the transfer of her name from the Dye art class to that conducted by Norton. She took no further action to bring about the transfer nor did she attend any of the classes beyond the time of this conversation.

    
    

11. David Dye spoke with Doris Zimmer, an Administrative Assistant in the Ybor Campus of the Community College, and she made the paper transfer of the students, Powe and Parson, from the Dye class, Art 005-H27, Pottery, to the Norton class, Art 013-G25, Sculpture. She did this by completing an adjustment and transfer form related to the students, Parson and Powe, copies of which may be found as the Petitioner's Composite Exhibit Nos. 3 and 4 admitted into evidence. Through this arrangement, Doris Zimmer signed the students' signatures for them. Parson and Powe were unaware of this adjustment to their enrollment.

    
    

12. The arrangement for the transfer of Powe and Parson from the Dye class to the Norton class was by prior standing unwritten policy of the Community College, there being no written policy concerning the transfer of non-academic students from one course to another. In this regard, it was commonplace to allow the execution of the transfer forms without the signature of the student for the Community Service non-academic students upon relation that the transfer was approved by the student, as was the case herein.

    
    

13. After the transfer had been mode, Norton carried the students, Powe and Parson, on his roll and marked them present, notwithstanding the fact that they did not attend his class and this may be seen through the Petitioner's Exhibit No. 1 admitted into evidence, which is a copy of his classroll. The students were dropped from David Dye's roll and he did not indicate any further attendance by those students in his Saturday pottery class as may be seen by a

    copy of his classroll, which is Petitioner's Exhibit No. 2 admitted into evidence.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. In the course of the hearing certain evidence related to an alleged conversation between the witness, Barbara Derbey, and Beatrice Parson held by telephonic communication was proffered for consideration. After reviewing that testimony and in keeping with Section 120.58, Florida Statutes, and Chapter 90, Florida Statutes, the substance of that conversation related to Beatrice Parson's participation is admitted into evidence.

    
    

16. 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 those accusations constitute immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or a conviction of any crime involving moral turpitude.

    
    

17. Charge One (1) in this complaint document alleges that the Respondent did aid and assist another college instructor in wrongfully obtaining the procurement and contract for course of instruction. From the facts presented this pertains to the discussion and agreement between the Respondent and Carl Norton to transfer the students, Irene Powe and Beatrice Parson, from Dye's Art 005-H27 to Norton's Art 013-G25. At the time that this was done, it was concluded with the permission of the students and although Norton and Dye felt that this would allow the Norton class to meet, the Norton class would have met without the addition of the two students because Norton had the minimum number of students necessary before this transfer was made. Therefore, when Dye and Norton entered into this arrangement, it was not one which caused the wrongful procurement and contract for the benefit of Norton to conduct the aforementioned course of instruction. Moreover, even assuming that the addition of Parson and Powe to the Norton's class would have been necessary for the course of instruction to be allowed to be presented, nothing in the arrangement between the Respondent and Carl Norton may be considered as the wrongful procurement and contract for a course of instruction for the benefit of Norton. Consequently, the Petitioner has failed to establish a violation of Rule 6A-14.411, Florida Administrative Code, related to Charge One (1).

    
    

18. Charge Two (2) of the Petition/Administrative Complaint states that the Respondent knowingly aided and assisted another college instructor in wrongfully obtaining payment for a course of instruction. Again, this relates to the aforementioned agreement between Dye and Norton on the subject of transfer of the students, Powe and Parson. It having been concluded in the discussion of Charge One (1) that the Respondent did not act to wrongfully obtain the procurement and contract for the course of instruction and in view of the fact that the Respondent took no specific action to see that Norton was paid for delivering this instruction, the Petitioner has failed to prove its allegations in Charge Two (2) and there is no violation of Rule 6A-14.411, Florida Administrative Code.

19. Charge Three (3) states that the Respondent did pay or assist another in paying a portion of tuition for students improperly transferred to another class of instruction. Again, this pertains to Norton's payment of the differential between Art 005-H27, Pottery, and Art 013-G25, Sculpture, for the students, Parson and Powe. The Respondent was without knowledge of the difference in tuition and as a result neither paid nor assisted in the payment of the differential in tuition. Therefore, the petitioner has failed to establish that the Respondent violated Rule 6A-14.411, Florida Administrative Code, pertaining to Charge Three (3).

    
    

20. Charge Four (4) alleges that the Respondent did aid and assist another college instructor in the wrongful transfer of students to another course of instruction without the students' knowledge or authorization. From the facts offered, this would be an accusation concerning the transfer of the students, Parson and Powe, from the above-described Dye class to that of Carl Norton. While the arrangement which Dye made with Norton and consummated through his discussion with the students, Parson and Powe, leading to the paper transfer and expected attendance in the Norton class was ill advised, as evidenced by the fact that the students lost interest in their course work beyond that point, it does not reach the level of being a wrongful transfer of those students to another course of instruction without their knowledge or authorization.

Clearly, they were knowledgeable on the subject of this transfer and although they did not give their specific written authorization through a transfer form, there was sufficient authorization taking into account the fact that the Community College did not have written policy on the question of the authorization of a transfer from one course to another and the fact that transfers executed through the administrative office without the student's signature were commonplace in keeping with the unwritten policy of the Community College. Consequently, the Petitioner has failed to establish that the Respondent violated Rule 6A-14.411, Florida Administrative Code, as alleged through Charge Four (4)

RECOMMENDATION

Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Administrative Charges placed against the Respondent, David C. Dye, be DISMISSED and that he be allowed to go forth without further answer.

DONE AND ENTERED this 1st day of December, 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 1st day of December, 1980.

COPIES FURNISHED:

David E. Bryant, Esquire,

401 East Kennedy Boulevard Tampa, Florida 33602

John J. Chamblee, Jr., Esquire Law Offices of Frank, Chamblee & Kelly, P.A.

341 Plant Avenue Tampa, Florida 33606

Docket for Case No: 80-001701

Orders for Case No: 80-001701