(composite), 1-C (composite), 5, 6 (composite), 7, 8, 9, and 12. Respondent proffered one exhibit, which was marked Respondent's Proffered Exhibit 1.
The parties requested and received 30 days from the date of filing of the hearing transcript to file proposed recommended orders. The three-volume hearing Transcript was filed on
July 14, 2006. On August 8, 2006, the parties filed a Joint Motion to Extend Time to File Proposed Orders. The time for filing proposed recommended orders was extended to August 31,
2006. Both parties filed Proposed Recommended Orders, which were considered by the undersigned.
Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:
Respondent, Janice Costin, was an employee of Florida A and M University (FAMU) at the College of Law in Orlando from December 2002 until discharged in May 2005. She is an administrative and professional employee with the title of coordinator of computer applications (director information technology). She is a ten-year university employee.
Immediately prior to accepting the position in Orlando, Respondent had worked in Planning and Analysis, part of the Information Technology Services Department at FAMU's Tallahassee campus, where she was responsible for procurement of hardware and software. As a result of her job responsibilities, she was intimately aware of the specific procedural requirements for the procurement of technology-related hardware and software.
FAMU has a "secure" computer network among its main campus in Tallahassee and six remote campuses, including the College of Law in Orlando.
The "secure" link between campuses utilizes "firewalls" at each end and encryption to ensure that valid information is transmitted.
Internet communications are encrypted or "scrambled" at the firewall of the originating location and then "unscrambled" at the receiving location firewall, utilizing mathematical algorithms. For security reasons, only three FAMU employees have access to the encryption model. Respondent did not have access to the encryption model.
Petitioner, FAMU Board of Trustees, has published specific policies and procedures for the effective operation of the university. Since 1994, it has been university policy that
. . . written approval must be secured from the Florida A&M University Information Resource Manager before expenditure of any campus resource toward the planning of a computer network. In addition to the written authorization to plan a network, all planning, acquisitions, installations, implementations or revisions must be done in conjunction with the Information Resource Manager. (Emphasis is in original document.)
Respondent was aware that (as delineated in her job description) she "received direction on technology systems planning from the FAMU Chief Information Officer and all plans for technology systems at the College of Law are subject to the approval of that officer."
Dr. Kenneth Perry, a FAMU employee, is chief information officer and information resource manager and is officed in Tallahassee. Respondent reports to Dr. Perry for her technology duties. Administratively, her job description
advises that Respondent "reports directly to the Associate Dean for Administration and Student Services [Dr. Ruth Witherspoon]."
In September 2004, incidental to hurricane-related internet service disruptions, the College of Law experienced internet access problems between the College of Law and the Tallahassee campus. "Trouble-shooting" attributed this to the firewall at the College of Law.
At the direction of Percy Luney, dean of the College of Law, Petitioner implemented the replacement of the existing Nokia firewall with an Enterasys firewall at the College of Law.
Dr. Perry did not approve changing the firewall as required by published university policy.
Dr. Witherspoon, Respondent's administrative supervisor at the College of Law, did not testify, but she authored a Memorandum dated October 17, 2005, admitted into evidence as Petitioner's Exhibit 11, which states: "I was not the one who directed Ms. Costin to host a website, install a firewall, or post advertisements on the website." The same exhibit/letter states:
Dean Luney directed Ms. Costin to acquire a separate server for the law school and to make certain that the server was protected and secure from outside "hackers." At the direction of Dean Luney, I did make arrangements, . . . , for Ms. Costin to purchase equipment to install a firewall on the new server. . . .
Respondent's Exhibit 1-A, a memorandum dated
September 14, 2004, from Respondent to the Enterasys vendor, via Dean Luney (whose initials are handwritten on the document), states, in pertinent part: "we would like to move forward with the 60 day evaluation of firewall equipment that will allow us to test for performance and security measures in our current facility."
Sometime after the "60 day evaluation period" referenced in paragraph 13, supra, in May 2005, when it became apparent that the Enterasys firewall was at risk of being removed by the vendor for lack of payment, Dr. Perry approved payment after receiving a request to do so from Dean Luney. Had he not, and the firewall been removed, the security of the internet system would have been compromised.
No evidence was presented to the effect that the university internet system had been compromised or breached, or that the university suffered any actual damage as a result of the installation of the Enterasys firewall.
When Respondent assumed her duties at the College of Law, it had an existing ".edu" (FAMU.edu/law) website or webpage. The College of Law experienced difficulty having timely information posted on the ".edu" website. New information had to be routed through the Tallahassee webmaster.
In some instances, it took several months for "new" information the be posted on the ".edu" website.
In February 2005, Respondent created a ".com" (FAMUlaw.com) website with the assistance of others in the Information Technology Services Department. She did not have the approval of Dr. Perry as required by published university policy.
The website designation ".edu" is reserved for educational institutions; the website designation ".com" is typically for entities pursuing commercial endeavors. The FAMU Department of Athletics has a ".com" website; the FAMU Department of Architecture has a ".net" website.
The FAMUlaw.com website had a section that consisted of Dell and Gateway logos and "links" to vendor websites that featured "Dell Computer Student Specials," "Gateway Desktop Student Specials," and "Gateway Laptop Student Specials."
The same or similar commercial "links" had appeared on the ".edu" website.
Dr. Perry believed that Respondent's unauthorized firewall installation placed the security of the FAMU web network at risk; he believed that Respondent's unauthorized creation of a ".com" website reflected poorly on the university as an educational institution.
While Dr. Perry expressed concern regarding the security of the FAMU internet network, there is no evidence that anyone "hacked" into the network while the Enterasys firewall was in place, and the change in firewalls was not known by Information Technology Services Department in Tallahassee.
No evidence was presented that Respondent had ever received a negative job-performance evaluation during her tenure with the university. Respondent did not receive a performance evaluation of any kind while she was employed at the College of Law.
Respondent's first documented indication of dissatisfaction with her job performance came in the form of an e-mail from Dr. Perry date/timed "5/9/2005 5:15 PM," raising the following questions:
Why have you created a .com website for the FAMU Law School?
Why did you go around me and the Office of Information Technology Services to get the links to that website from the FAMU homepage? (I have removed the links to that website).
Why are you spending state money for a
.com website?
Why does the www.famu-law.com Information Technology web page contain commercials for Dell and Gateway?
Why are you spending state money to advertise for Dell and Gateway?
Respondent provided a courteous, reasoned reply to Dr. Perry's e-mail inquiry the following day (5/10/2005).
Respondent's dismissal letter was dated May 13, 2005.
Respondent's job description succinctly states that her "primary function" is to "interact with the College of Law administrative and academic personnel in developing, maintaining, and updating computer application/systems that will enhance the productivity of the College of Law end-user." In addition, she was "responsible for planning for the security of the College of Law technology systems along with the Chief Information Officer [Dr. Perry] . . ."
Respondent's job description further states: while reporting "directly to the Associate Dean for Administration and Student Services [Dr. Witherspoon]," in Orlando, Respondent was to "receive direction on technology systems planning from the FAMU Chief Information Officer [Dr. Perry]," in Tallahassee. She was to "be self-directed, and . . . work independently, following general policy discussions."
Notwithstanding Respondent's job description,
Dean Luney directed Respondent's assignments and activities on projects related to the development of technology at the law school.
According to her job description, her "performance will be evaluated on a periodic review of results obtained." As
mentioned hereinabove, Respondent did not receive a performance evaluation during the three years she was employed at the College of Law.
While tasked with the responsibility of seeking direction and approval for technology systems and systems planning from Dr. Perry, Respondent did not. On those occasions when she did seek support, she received little support from him or others in the Information Technology Services Department in Tallahassee.
CONCLUSIONS OF LAW
The Division of Administrative Hearing has jurisdiction of the parties to and the subject matter of these proceedings. §§ 120.57(1) and 120.569, Fla. Stat. (2005).
Petitioner has the burden to establish by a preponderance of the evidence that there was just cause to terminate Respondent in accordance with Florida Administrative Code Rule 6C3-10.232(3). § 120.57(j), Fla. Stat. (2004); Fla. Admin. Code R. 6C3-10.232(3). See Allen v. School Board of Dade
County, 571 So. 2d 568 (Fla. 3d DCA 1990).
Florida Administrative Code Rule 6C3-10.230(5)(a) and (f) provides that:
(5) The President or President's designee may discipline a faculty or A & P employee for just cause in accordance with the provisions set forth herein:
(a) Just Cause shall be defined as:
Incompetence; or
Misconduct.
* * *
(f) Dismissal - The employee may be dismissed during the term of the employment contract for just cause, regardless of tenure status where it appears to the President or President's designee that an employee's actions adversely affect the functioning of the University or jeopardize the safety or welfare of the employee, other employees or students. . . .
No evidence has been offered that suggests that Respondent was incompetent in the performance of her job responsibilities.
In Allen v. Fla. A & M Univ., 2004 WL 1269181 (DOAH 2004), a tenured professor at FAMU was terminated for sexual harassment. In construing the identical standards of just cause applicable in the case sub judice (Florida Administrative Code Rule 6C3-10.230), the Administrative Law Judge stated:
Black's Law Dictionary defines "misconduct" as "a transgression of some established definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior."
The Notice of Dismissal from Employment dated May 13, 2005, alleges three areas where "you [Respondent] exceeded the
scope of your authority." They are "(1) host[ed] a website (famulaw.com), at the expense of the College of Law, for a private commercial vendor; (2) installed a firewall without approval; and (3) facilitated the posting of advertisements within the area of the College of Law from commercial computer companies.
The Notice of Dismissal from Employment dated May 13, 2005, is considered the "charging document" in this case. Petitioner must prove the allegations that Respondent "exceeded her authority" as stated in this document by a preponderance of the evidence and that, based on the allegations, there was just cause to terminate Respondent in accordance with Florida Administrative Code Rule 6C3-10.232(3).
The Notice of Dismissal from Employment letter's first suggested instance where Respondent "exceeded her authority" is: that she "host[ed] a website(famulaw.com) at the expense of the College of Law, for a private commercial vendor." No evidence was presented that supports this allegation, as stated. Created in February 2005, the ".com" website is the subject of all five questions in Dr. Perry's May 9, 2005, e-mail. The evidence suggests that the "links" providing information on Dell and Gateway computers were identical to those appearing on the ".edu" website and were designed to give students product information. The purpose of the ".com" website was to provide
timely information. The evidence is that Respondent created the ".com" website without the approval of Dr. Perry in violation of university policy.
The third suggested instance where Respondent "exceeded her authority" is: "facilitated the posting advertisements within the area of the College of Law from commercial computer companies." No evidence was presented that suggests that Respondent actually physically posted commercial computer company advertisements within the College of Law; it is assumed (principally because it is argued in Petitioner's Proposed Recommended Order) that this allegation is directed to the logos and links on the ".com" website. While Respondent acknowledged creating the ".com" website, she denied posting the Dell and Gateway logos and links. The evidence suggests that the same logos and "links" appeared on the ".edu" website and were accidentally placed on the ".com" website when the website "crashed" and was restored. The evidence presented is inconclusive as regards "posting of advertisements within the College of Law," whether referring to the website or the physical premises.
The second suggested instance where Respondent "exceeded her authority" is that she "installed a firewall without approval." The evidence is clear that Respondent did not have the approval of Dr. Perry, as required by university
regulations, when she installed the Enterasys firewall at the College of Law.
In May 2005, Dr. Perry first became aware of the presence of the Enterasys firewall installed at the College of Law in September 2004. Dr. Perry expressed concern that the university's internet network could have been compromised by this unapproved installation; however, no evidence was offered to that effect. If fact, the installation of the Enterasys firewall at the College of Law appears to have had no negative effect as a practical matter.
Florida Administrative Code Rule 6C3-10.230(5)(b) through (g), in part, contemplates the imposition of "progressive discipline," which means that
the form of disciplinary action imposed
. . . increases in extent or severity with each action taken. The discipline to be imposed against the employee under this paragraph may include a written reprimand, suspension or dismissal from employment with the University. The discipline that is imposed will depend upon the seriousness of the offense and any aggravating or mitigating circumstances.
Florida Administrative Code Rule 6C3-10.230(5)(f) addresses the most extreme step in the "progressive discipline" hierarchy and states:
Dismissal – The employee may be dismissed during the term of the employment contract for just cause, regardless of tenure status where it appears to the President or
President’s designee that an employee’s actions adversely affect the functioning of the University or jeopardize the safety or welfare of the employee, other employees or students. The employee shall be given written notice of the dismissal by the President or President’s designee specifying the reason(s) therefor. The dismissal shall take effect at the time determined by the President or President’s designee and as written in the notice of dismissal.
Admittedly, Respondent installed a firewall and created a ".com" website without Dr. Perry's guidance and permission. For this to rise to the level of misconduct to warrant dismissal in a "progressive discipline" environment, one would expect that Respondent would have received prior discipline/guidance or, at least, performance evaluations noting similar failures, that the offending behaviors would have been discovered immediately (not after the passage of several months) and that some apparent harm would have been suffered by the university.
The critical denominator for the employee's misconduct to warrant dismissal is that it "adversely affect the functioning of the University or jeopardize the safety or welfare of the employee, other employees or students." Petitioner failed to demonstrate by a preponderance of the evidence that Respondent did anything that adversely affected the functioning of the university or endangered anyone.
