08-005086 Timothy Jones vs. Florida Keys Community College Status: Closed Recommended Order on Friday, February 13, 2009.

Summary: Petitioner awarded associate of science degree for simply signing applications for course credit "by institutional examination" in violation of community college rule. "Good cause" for removal of credits and termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY JONES, )

)

Petitioner, )

)

vs. ) Case No. 08-5086

)

FLORIDA KEYS COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on December 1 and 2, 2008,

at Key West, Florida.

APPEARANCES

For Petitioner: Samuel J. Kaufman, Esquire

1509 Josephine Street, Suite 1

Key West, Florida 33040

For Respondent: Robert L. Norton, Esquire

Luke C. Savage, Esquire

Allen, Norton & Blue, P.A.

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent Florida

Keys Community College had good cause to remove 39 academic

credits and an associate in science degree from Petitioner

Timothy Jones’ academic transcript and whether Respondent has

good cause to terminate Petitioner from employment as professor

of marine propulsion.

PRELIMINARY STATEMENT

By letter dated January 3, 2008, the president of

Respondent, Dr. Jill Landesberg-Boyle, notified Petitioner

Timothy Jones that she had determined that he had not obtained

his associate in science degree “under legitimate

circumstances.” Therefore, she informed Mr. Jones that she was

directing that the degree be removed from his academic

transcript and that she would be recommending to the Board of

Trustees of Respondent that he be terminated from his

instructional position with Respondent. Dr. Landesberg-Boyle

further informed Respondent of his rights to challenge her

recommendation.

By memorandum dated January 5, 2008, Dr. Landesberg-Boyle

instructed the Director of Enrollment Services to “remove the 39

credits by exam on Mr. Tim Jones’ FKCC transcript that were

posted in April 2004. . . .”

On or about January 28, 2008, the Board of Trustees of

Respondent voted to terminate Petitioner from his instructional

position with Respondent.

On March 10, 2008, Petitioner served an Amended Petition

for Administrative Appeal and Hearing. While not informed of a

specific right to challenge Dr. Landesberg-Boyle’s decision to

remove credits from his academic transcript, Petitioner

challenged that decision and the decision of the Board of

Trustees to terminate his employment with Respondent in the

Amended Petition. Respondent served Respondent’s Answer to

Petition for Administrative Appeal and Hearing on March 26,

2008.

By letter dated September 25, 2008, addressed to the Clerk

of the Division of Administrative Hearings (hereinafter referred

to as the “DOAH”), from counsel for Respondent, Respondent

requested the assignment of a DOAH administrative law judge to

conduct a hearing pursuant to Chapter 120, Florida Statutes

(2008), and a contract entered into under the authority of

Section 120.65(7), Florida Statutes (2008). That contract was

entered into between the DOAH and Respondent on or about

September 28, 2008. The request for hearing was designated DOAH

Case No. 08-5086 and was assigned to the undersigned.

By Notice of Hearing entered October 20, 2008, the final

hearing of this matter was scheduled for December 1 and 2, 2008.

On November 18, 2008, a Joint Pre-Hearing Stipulation was

filed by the parties. The Joint Pre-Hearing Stipulation

contains agreed upon facts which, to the extent relevant, have

been included in this Recommended Order.

At the commencement of the final hearing, it was suggested

that, pursuant to Chapter 120, Florida Statutes (2008), it was

the Respondent that has the burden of proof in this matter.

Respondent agreed and, consequently, presented its case first.

Respondent’s case consisted of the testimony of Clifford Colman,

Petitioner, and Dr. Jill Landesberg-Boyle. Respondent also had

admitted ten exhibits, which were identified as College

Exhibits 1 through 10. Petitioner presented the testimony of

Maureen Crowley, Sharon Toppino, Erika MacWilliams, Joseph

Carbonnell, and Petitioner. Petitioner offered no exhibits.

A two-volume Transcript of the final hearing was filed with

the DOAH on December 12, 2008. By agreement of the parties,

proposed recommended orders were to be filed on or before

January 12, 2009. A Notice of Filing Transcript was entered

informing the parties of the filing of the Transcript and the

due date for proposed recommended orders. A seven-day extension

of the time for filing proposed recommended orders was requested

in Respondent’s Unopposed Motion for Extension of Time to File

Post-Hearing Briefs. The extension was granted.

On January 19, 2009, Petitioner filed Petitioner’s Proposed

Recommended Order and Respondent filed Florida Keys Community

College’s Brief. Both submittals have been fully considered in

entering this Recommended Order.

All references to Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the 2008

version unless otherwise indicated.

FINDINGS OF FACT

A. The Parties .

1. Respondent, the Florida Keys Community College

(hereinafter referred to as the “FKCC”), is a part of the

“Florida College System,” subject to the provisions of Chapter

1001, Part III, Florida Statutes. FKCC, located in Key West,

Florida, is specifically recognized as a Florida “community

college” pursuant to Section 1000.21(3)(h), Florida Statutes.

FKCC is governed by a local board of trustees. See §

1001.60(3), Fla. Stat.

2. FKCC’s president is Jill Landesberg-Boyle, Ph.D.

3. At the times material to this proceeding, Petitioner,

Timothy Jones, a full-time faculty member of FKCC, was employed

by FKCC as an instructor in, and, for part of his employment,

the director of, the Marine Engineering Department.

4. Mr. Jones was initially hired in August 2001. When

hired, Mr. Jones, who had no prior teaching experience,

possessed an associate of arts degree, which he had earned in

the 1970’s.

5. Mr. Jones did not possess an associate in science

degree with a major in marine propulsion or marine engineering

at the time he was hired. He did, however, possess practical

experience, having owned and operated a marine outboard sales

and repair business for approximately two years prior to his

employment with FKCC.

6. At some point prior to 2004, Mr. Jones became director

of the Marine Engineering Department. In addition to his

instructional duties, Mr. Jones acted as supervisor for Mark

Welsh, another Marine Engineering Department instructor and the

Department’s faculty advisor.

7. Mr. Jones taught courses dealing with gasoline powered

engines, while Mr. Welsh taught courses dealing with diesel

powered engines.

B. Mr. Jones’ Associate in Science Degree; Marine

Engineering, Management & Seamanship .

8. In January or February 2004, Mr. Jones met with Dr.

Maureen Crowley, then vice president of instruction for FKCC.

At some point during the meeting, Dr. Crowley told Mr. Jones

that it appeared that the Southern Association of Colleges and

requiring that instructors at FKCC possess a degree in the area

in which they were employed to teach. This was not a new

requirement, but one that had not previously been enforced by

SACS.

9. Dr. Crowley told Mr. Jones that, if SACS did enforce

the policy, he would probably not be allowed to continue

teaching in the Marine Engineering Department if he did not

obtain an associate in science degree in his area of

instruction.

10. Dr. Crowley also told Mr. Jones that the quickest way

for him to earn the requisite degree would be to earn course

credits from FKCC by “Institutional Credit by Examination.” In

light of the fact that Mr. Welsh was the Marine Engineering

Department’s advisor, Dr. Crowley told Mr. Jones to talk to him

about how to proceed.

11. The awarding of credits by examination, including

“Institutional Examinations,” is authorized by FKCC Board of

Trustees Rule 7.710 (College Exhibit 3). In particular, Rule

7.710 provides, in pertinent part, the following:

Credit may be earned in certain other

College courses by successful completion of

an appropriate examination. Evidence of

proficiency in the subject is to be

presented to the instructor of the course.

If, in the opinion of the instructor, the

student is eligible to take the examination,

the student will be required to pay a non

refundable examination fee in accordance

with the Fee Schedule (see Financial

Information) prior to the administration of

the examination. The instructor of the

course will administer the examination at an

appointed time and assign a final grade.

If the student passes the examination at the

80% level or above . . . credit will be

awarded and recorded on the student’s

permanent record by the Director of

Enrollment Services. . . .

12. Despite “opinion” testimony to the contrary, the

foregoing Rule is clear as to its requirements, including the

knowledge is to be “administered” before any credits are to be

awarded for any course available at FKCC. The Rule does not

authorize or contemplate the awarding of course credits simply

because the “instructor” believes that the “student” is

knowledgeable, based upon prior observation or some review of

the student’s records.

13. Subsequent to the meeting with Dr. Crowley, Mr. Jones

met with Mr. Welsh. Mr. Jones told Mr. Welsh that he,

Mr. Jones, needed to earn an associate in science degree or that

he would not be allowed to continue his employment with FKCC.

Mr. Jones also told Mr. Welsh that Dr. Crowley had told him to

talk to Mr. Welsh about the best way for him to earn the

requisite degree. According to Mr. Jones, he left the meeting

leaving the decision in Mr. Welsh’s hands, assuming that

Mr. Welsh would do whatever was necessary to ensure that he

earned the necessary degree.

14. Mr. Jones heard nothing more about the matter until

April of 2004, when Mr. Welsh presented him with 13 completed

Applications for Credit by Institutional Examination

each Application is the following explanation, which

consistently explains the requirements of Rule 7.710:

Students who are currently enrolled in a

credit course other than that being

challenged or have not taken an

institutional exam for the course at any

previous time or not previously taken the

course at FKCC or through transfer credit

may earn credit in a number of college

courses for which no CLEP, DANTES, or

Excelsior examination is available. A score

of at least 80% on a comprehensive written

examination and/or demonstration of

satisfactory ability in performance skills

will be required. Credit may not be earned

in a course in which the student is enrolled

or for which he has earned credit. Only one

attempt at credit by institutional

examination will be permitted per course. A

maximum of 75% of associate degree

requirements or 50% of certificate

requirements may be earned by institutional

examination or other acceleration

mechanisms. Evidence of proficiency in the

subject is to be presented to the instructor

of the course. If, in the opinion of the

instructor, the student is eligible to take

the examination, the student will proceed to

the Business Office for payment of the non-

refundable $20 per credit examination fee

before taking the examination. The

instructor will administer the exam, at an

agreed upon time, and will assign a final

grade. The completed form will be forwarded

to the Director of Enrollment Services who

will then inform the student in writing of

the results of the examination and will

record credit earned by institutional

examination on the transcript, if

appropriate. The following sections should

be completed in sequence.

Mr. Jones did not read the instructions on the Application or

follow them.

15. The instructions on the Application add certain

requirements for obtaining credits by institutional examination

not contained in Rule 7.710: the “examination” may be a

“comprehensive written examination and/or demonstration of

satisfactory ability in performance skills”; and no more than a

“maximum of 75% of associate degree requirements or 50% of

certificate requirements may be earned by institutional

examination.”

16. The first section to be completed on the Applications

is a section containing a space for the student’s name and

social security number, the course number and name, and the

credit hours for the course. There is also a space for the

student to list the “specific reasons why I wish to take a

challenge examination . . . .” Finally, this section ends with

a place for the student to date and sign the Application, noting

that “[e]vidence of prior related experience is attached” and

that, by the student’s signature, the student acknowledges that

he or she has “read and understand[s] the criteria and procedure

for credit by institutional examination.”

17. The first section of the 13 Applications was signed by

Mr. Jones on April 20, 21, or 22, 2004. The Applications were

for 13 different courses totally 39 credit hours. All

information written into this section, other than Mr. Jones’

signature, was already written on the Applications when

presented to Mr. Jones for signature. No “specific reasons” why

Mr. Jones wished to take a challenge examination in the courses

was included on the 13 Applications and no “prior related

experience” as attached to the Applications. Mr. Jones’

acknowledgement, by signing the Applications, that he had “read

and understand[s] the criteria and procedure for credit by

institutional examination” was false.

18. The next section of the Applications to be “completed

sign recommending the student for credit by institutional

examination and agreeing to “administer a supplementary skills

performance test.” All 13 of the Applications were signed by

Mr. Welsh, Mr. Jones’ subordinate, and were dated the same day

that Mr. Jones signed them, except for one, which was signed by

Mr. Welsh the day after the date Mr. Jones had signed it.

(Whether this section of the Applications was signed by Mr.

Welsh in April, as it now appears, or were actually dated in

February is questionable based upon a cursory review of College

Exhibit 2).

19. The next section of the Applications is a section for

the “cashier’s validation.” This section is intended to be

signed by a cashier of FKCC to acknowledge receipt of payment

for the credit by institutional examination, along with the

amount paid and the date. The section states in all capital

letters, “TO BE VALIDATED BEFORE EXAMINATION DATE.” All 13

Applications were signed by the cashier on April 22, 2004. This

date is after the date Mr. Welsh indicates the “examinations”

took place, as discussed, infra .

20. The next-to-the-last section of the Applications,

which should have been executed after the Applications were

instituted by the student, after the instructor had accepted the

Applications, and after payment for the credits had been made

and acknowledged, is a section to be completed by the instructor

of the course verifying the following:

I examined the above student in the

indicated course on (date) _______.

According to the standards for the award by

credit by institutional examination, I do/do

not (strike one) recommend the credit be

awarded based on the student’s grade of

______. Documentation of the examination

results is attached.

21. All 13 Applications were signed by Mr. Welsh

indicating that Mr. Jones had earned an “A” in each of the

13 courses and that the “examination” had been administered on

February 20, 21, or 22, 2004, two months before Mr. Jones signed

the Applications. None of the 13 Applications had

“documentation of the examination results” attached to them.

Mr. Welsh indicated on the Applications that the “examination”

had been given two months before Mr. Jones signed the

Applications, in complete disregard for the instructions on the

Application and contrary to Rule 7.710.

22. Finally, the last section on the Applications is for

the signature of the Director of Enrollment Services. All 13

Applications are signed and dated April 22, 2004.

23. The 13 courses for which Mr. Jones “applied” and was

granted credit by institutional examination are Marine Diesel

Engine Overhaul; 2 & 4 Cycle Outboard Repair and Maintenance;

Marine Diesel Systems; Marine Engine Installation and Repower

Procedures; Fiberglassing Theory; Applied Marine Electricity;

Gas and Electric Welding; Basic Seamanship; Diesel Engine

Testing and Troubleshooting Procedure; Marine Corrosion and

Corrosion Prevention; Diesel Fuel Injection Systems; Marine

Gearcases, Outdrives & Transmission Systems; and Marine

Auxiliary Equipment Servicing.

24. Of the 13 awarded courses, Mr. Jones had taught only

six. Mr. Welsh had never taught any of the six courses taught

by Mr. Jones. While Mr. Welsh had taught six other courses,

Mr. Jones had not. One course, Gas and Electric Welding, had

not been taught by Mr. Jones or Mr. Welsh. These facts, along

with the fact that Mr. Welsh was Mr. Jones’ subordinate, raise

serious questions about the appropriateness of the award of the

39 credits and an associate in science degree to Mr. Jones which

any reasonable person should have been concerned about.

25. As a result of the completion and submission of the

13 Applications, Mr. Jones was awarded 39 credit hours for the

13 courses and, as a consequence, was awarded an Associate in

Science degree by FKCC on or about May 3, 2004.

26. Mr. Jones acknowledges that he did not take any

examination, written or by “demonstration of satisfactory

ability in performance skills,” for any of the 13 courses for

which he was given credit. In fact, Mr. Jones acknowledges and

the evidence proved that all he did was to tell Mr. Welsh about

his need to obtain a degree and sign the 13 Applications.

27. Despite all the indications to the contrary, Mr. Jones

simply followed Mr. Welsh’s directions, signing whatever

documents Mr. Welsh provided to him, purportedly because “he

knew of my abilities and I could pass the examination if he took

the time to do it.” Volume I, Page 93, Lines 20-21, Transcript.

C. Scholarship Funding for the 13 Applications .

28. In order to pay for the courses for which credit was

awarded pursuant to the 13 Applications, Mr. Jones applied for

employee/dependent scholarship aid.

29. While employee/dependent scholarship aid is available

for the payment of tuition, it is not intended for use in paying

for the $20.00 application fee for credit by institutional

examination.

30. Employee/dependent scholarship aid is also limited to

12 hours per term and 24 hours per year.

31. Mr. Jones completed a Scholarship Aid Request for the

39 credit hours by institutional examination he was awarded.

The funds were approved and used to fund the costs of the

39 hours of credit.

32. As with the award of the 39 credits by institutional

examination, at no time did Mr. Jones inquire as to the

appropriateness or legality of using scholarship aid to fund the

award of his Associate in Science degree.

D. FKCC’s Investigation .

33. On or about August 1, 2007, Dr. Landesberg-Boyle, who

had served some months as president-designee of FKCC, was hired

by the FKCC Board of Trustees (hereinafter referred to as the

“Board”), as FKCC president.

34. One of Dr. Landesberg-Boyle’s first official acts was

to create the position of provost and to fill that position with

Clifford Colman. Mr. Colman possesses extensive experience in

academia. Proposed findings concerning Mr. Colman’s background

are accurately reflected on page 6 of Florida Keys Community

College’s Brief and are hereby incorporated into this

Recommended Order by reference.

35. Among Mr. Colman’s duties as the provost, the FKCC’s

chief academic officer, was the responsibility to ensure that

FKCC faculty were possessed of the requisite credentials

required by FKCC and the State of Florida.

36. In late September or early October,2007 a comment was

made to Mr. Colman during a conversation he was having with the

then Director of Marine Engineering and another faculty member

about Mr. Jones’ credentials, or purported lack thereof. One of

the individuals said in effect that Mr. Jones did not posses a

degree in his discipline and that the rumor around the campus

was essentially that he had “pulled a fast one on the college

and had gotten a degree without doing any work for it.”

37. In reasonable response to these comments, Mr. Colman

began an investigation. He first went to the records office and

reviewed Mr. Jones’ academic transcript. He noticed the credit

for the 13 courses totaling 39 hours of credit awarded to

Mr. Jones. Mr. Colman was alarmed because, in his experience, a

full-time student would normally require one and a half academic

years to complete that much course work. Mr. Jones had been

awarded the 39 credits for a single academic term.

38. Mr. Colman was also concerned because the 39 hours of

credit, according to the transcript, had been awarded by

“Institutional” examination. Therefore, Mr. Colman next

retrieved the supporting documentation for the courses,

including the 13 Applications. Concerned about the amount of

credits awarded, the fact that they were all awarded in a short

period of time, the fact that Mr. Jones had been given an “A” in

each course, and the fact that Mr. Welsh was Mr. Jones’

subordinate, Mr. Colman investigated further.

39. Mr. Colman next spoke on more than one occasion by

telephone with Mr. Welsh, who was no longer employed at FKCC or

living in the area. Those conversations took place in October

2007. Dr. Landesberg-Boyle participated in one of the

conversations. Although the accuracy of what Mr. Welsh told

Mr. Colman and Dr. Landesberg-Boyle is hearsay and, therefore,

is not reported in this Recommended Order nor relied upon by the

undersigned in the ultimate decisions in this case, what Mr.

Welsh said about the events gave Dr. Landesberg-Boyle reasonable

cause to take the actions she took in this matter.

40. After completing his investigation, Mr. Colman and the

Board attorney, William “Buck” DeVane, met with Mr. Jones.

Although not given any notice of what the meeting was for,

Mr. Jones was informed of Mr. Colman’s findings and given an

opportunity to speak to the findings. Mr. Jones was then told

that he could resign his position or, if chose not to, FKCC

would pursue termination proceedings. Mr. Jones requested and

was given a few days to consider his options. Ultimately,

Mr. Jones declined the opportunity to resign.

41. While Mr. Jones complained at hearing about his

perceived lack of opportunity to respond to Mr. Colman’s

findings, he has been afforded his complete due process rights

through this proceeding.

42. Following Mr. Jones’ decision not to resign,

Mr. Colman recommended that Dr. Landesberg-Boyle take action to

terminate Mr. Jones’ employment with FKCC.

E. Dr. Landesberg-Boyle’s Decision and Recommendation to

the Board, the Board’s Decision, and Mr. Jones’ Request for

Hearing .

43. Dr. Landesberg-Boyle wrote a letter dated January 3,

2008, to Mr. Jones informing him that she was “directing

Enrollment Services to remove [the associate in science] degree

from your academic transcript.” She also told Mr. Jones that

she intended to recommend to the Board at their meeting on

January 26, 2008, that his position with FKCC be terminated.

Finally, Dr. Landesberg-Boyle advised Mr. Jones that he had the

right to a hearing pursuant to Chapter 120, Florida Statutes.

Although she did not specifically inform Mr. Jones of his right

to challenge her decision to direct the removal of his associate

in science degree from his transcript, he has been afforded that

opportunity through this proceeding.

44. On January 5, 2008, Dr. Landesberg-Boyle instructed

Cheryl Malsheimer, Director Enrollment Services, by memorandum,

to “remove the 39 credits by exam on Mr. Tim Jones’ FKCC

transcript that were posted in April 2004. . . .”

45. On January 26, 2008, the Board accepted the

recommendation to terminate Mr. Jones’ employment with FKCC.

46. Mr. Jones exercised his right to challenge both

actions: the removal of the 39 credits by exam and his Associate

in Science degree from his transcript and the decision of the

Board to terminate his employment with FKCC.

47. By the conduct of this proceeding, Mr. Jones was

afforded his due process rights pursuant to Chapter 120, Florida

Statutes, as to both the decision of Dr. Landesberg-Boyle to

remove the credits and degree from his transcript and the

decision of the Board to terminate his employment.

F. Good Cause for Dr. Landesberg-Boyle’s Decision .

48. Based upon the foregoing, it is clear that the action

of Dr. Landesberg-Boyle in ordering the removal of the

39 credits by institutional examination and the Associate in

Science degree from Mr. Jones’ transcript was done with good

cause. Mr. Jones’ suggestion that he simply did what he was

instructed to do is simply not reasonable for any number of

reasons:

a. The person who “awarded” him the credits was his

subordinate;

b. Being awarded a degree for simply signing your name to

the 13 Applications, without reading the forms or asking any

questions was totally unreasonable for any college instructor

and especially the head of the department;

c. Accepting an award of credits for courses for which

Mr. Jones had no experience and had not taught was unreasonable;

and

d. Accepting an award of credits for courses for which

Mr. Jones had some expertise from an individual who did not

possess the same expertise was unreasonable.

G. Good Cause for the Board’s Decision .

49. Based upon the foregoing, it is also clear that the

decision of the Board to terminate Mr. Jones was made with good

cause.

50. Regardless of whether Mr. Jones possesses the skills

and ability to teach marine engineering, his actions in

accepting 39 credits and an associate in science degree by

simply signing the 13 Applications and by inappropriately using

employee/dependent financial aid to pay for those credits

support the Board’s decision. Whether, as FKCC suggests,

Mr. Jones was part of a fraudulent scheme to protect his job, or

he simply followed what he was told, his actions were

inconsistent with what the Board may reasonably expect and

demand from instructional staff at FKCC.

CONCLUSIONS OF LAW

A. Jurisdiction .

51. The DOAH has jurisdiction over the subject matter of

this proceeding and of the parties thereto pursuant to Sections

120.569 and 120.57(1), Florida Statutes (2008).

52. This is a de novo proceeding. See § 120.57(1)(k),

Fla. Stat. As such, the goal of the proceeding is to formulate

final agency action regarding Mr. Jones’ Associate in Science

degree and his employment with FKCC, not to review the decisions

made by Dr. Landesberg-Boyle or the Board as initially made.

See generally McDonald v. Department of Banking and Finance , 346

So. 2d 569 (Fla. 1st DCA 1977). Resolution of the issues in this

case are not dependant upon whether Dr. Landesberg-Boyle and the

Board had good cause for the actions they took, when taken, or

even whether they took those actions without malice toward Mr.

Jones, but whether the totality of the evidence presented during

the formal hearing of this matter proves that good cause exists

to justify removal of Mr. Jones’ Associate in Science degree and

the termination of his employment.

53. Although not ultimately relevant to the resolution of

his matter, the evidence failed to prove that Dr. Landesberg-

Boyle or the Board took any action with malice or that they did

not believe was in the interest of FKCC.

B. The Burden and Standard of Proof .

54. This matter arose when FKCC removed 39 credit hours

from Mr. Jones’ transcript and the Board voted to terminate his

employment with FKCC. FKCC, by changing the status quo,

therefore, has the burden of proving that it had good cause to

take those actions. Department of Banking and Finance, Division

of Securities and Investor Protection v. Osborne Stern and Co. ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); and Nair v. Department of Business & Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

55. Pursuant to Section 120.57(1)(j), Florida Statutes,

the burden of proof is by preponderance of the evidence.

C. The Removal of Mr. Jones’ 13 Courses .

56. Neither party has addressed the authority or lack

thereof for the president of a community college to direct the

removal of course credits and/or a degree previously awarded by

the institution. Presumably that authority comes from Section

1001.65, Florida Statutes. Regardless, the parties have

stipulated that the issue as to the removal of the credits and

the degree turns on whether “good cause” exists for the action.

57. Whether good cause exists to justify removal of the 13

course credits and the degree turns on whether the credits were

awarded in such a way that they violated Rule 7.710, quoted

above. That Rule establishes the procedures which must be

followed in order for an individual to be entitled to an award

of credits by Institutional Examination.

58. Rule 7.710 requires, at a minimum, the following:

a. The presentation of evidence of proficiency must first

be presented to the instructor;

b. The student, if the instructor finds the evidence

adequate, must pay for the course; and

c. The instructor is then required to “administer the

examination at an appointed time and assign a final grade.”

59. At best, and limited to the six courses which

Mr. Welsh was aware Mr. Jones taught, Mr. Jones may have

satisfied the first one of the three requirements of the Rule.

Although he did not technically present evidence to Mr. Welsh of

his expertise in those six courses, Mr. Welsh was clearly aware

that Mr. Jones had been teaching the courses for some time.

Giving Mr. Jones the benefit of the doubt, even though Mr. Welsh

had not taught those courses, he was probably qualified to

conclude that Mr. Jones had expertise in those areas sufficient

for him to be given an examination.

60. As to the courses that Mr. Jones did not teach, no

evidence of any expertise was presented to Mr. Welsh and,

therefore, Mr. Jones did not meet the first requirement, that he

justify being given an examination, with regard to those courses

for which he received an award of credit.

61. As to the second requirement, Mr. Jones did nothing to

ensure that payment had been made for the courses. In fact,

Mr. Jones was apparently not even aware that payment was

required since he neither read the Rule or the instructions on

the 13 Applications. Worse, he obtained credit inconsistently

with FKCC policies with regard to employee/dependent scholarship

aid.

62. Finally, and most critically, no examination of any

kind was scheduled by Mr. Welsh or taken by Mr. Jones. Without

such an examination, the assignment of an “A” by a subordinate

of Mr. Jones, a subordinate that lacked the expertise to

determine the proficiency of his supervisor in many of the

courses, was nothing but a sham.

63. Mr. Jones’ defense, that he simply relied upon

Mr. Welsh and assumed that Mr. Welsh knew what he was doing,

defies common sense and logic. Mr. Jones’ explanation, in light

of the fact that he knew that he was being given a degree for

simply signing, without even bothering to read, the

13 Applications is rejected as unreasonable.

64. Mr. Jones’ suggestion that he could have demonstrated

his proficiency in all the courses is also not enough. Even if

he were correct, the fact remains that no one took the time to

ensure that the Rule was followed and that he actually

demonstrated that proficiency.

65. Clearly, more is expected from a college instructor

and head of a department. Any person in Mr. Jones’ position had

to have realized that something was wrong with an associate

degree being awarded under the circumstances of this case. At

the very least, Mr. Jones should have made inquiry.

66. The evidence in this case proved without question that

Mr. Jones was awarded 39 credit hours for 13 courses and, as a

result, an associate in science degree contrary to Rule 7.710.

His acceptance of those credits and the degree without any

inquiry as to whether those actions were consistent with FKCC

rules, constitutes good cause for the removal of both.

67. In Petitioner’s Proposed Recommended Order, Mr. Jones

has suggested that FKCC “violated his (1) Sections 1002.21(1),

the Florida and federal Constitutions.” While Mr. Jones has not

explained with any particularity how FKCC violated these

provisions, in light of the fact that the statutory provisions

all deal with rights of post-secondary students with regard to

their records, it is assumed that Mr. Jones is suggesting that

he was denied his procedural rights with regard to the decision

to remove the 39 credits and the associate in science degree.

This argument is without merit.

68. Ultimately, through this Chapter 120, Florida

Statutes, proceeding, Mr. Jones has been fully afforded all of

his due process rights. He has been afforded the opportunity to

challenge the decision, he has forced FKCC through this de novo

proceeding to justify the decision, and he has been given a full

opportunity to be heard before an impartial tribunal.

D. The Termination of Mr. Jones’ Employment .

69. The Board has the authority to impose discipline on

instructional staff, including their removal, pursuant to

Section 1001.64(18), Florida Statutes, and Florida

Administrative Code Rule 6A-14.0411(5)(a).

70. Florida Administrative Code Rule 6A-14.0411(5)(a)

provides as follows:

The college may dismiss an employee under

continuing contract or return the employee

to an annual contract upon recommendation by

the president and approval by the board.

The president shall notify the employee in

writing of the recommendation, and upon

approval by the board, shall afford the

employee the right to a hearing in

accordance with the policies and procedures

of the college. As an alternative to the

hearing rights provided by college polices

and procedures, the employee may elect to

request an administrative hearing in

accordance with the guidelines of Chapter

120, Florida Statutes, by filing a petition

with the board within twenty-one (21) days

of receipt of the recommendation of the

president.

71. Dr. Landesberg-Boyle and the Board complied with the

foregoing procedures and Mr. Jones exercised his right to

request an administrative hearing to contest the Board’s

decision.

72. Both parties have stipulated that Mr. Jones’

termination from employment must be based upon “good cause.”

FKCC argues that his actions in accepting the 38 credits by

institutional examination and the Associate in Science degree in

violation of FKCC rules constitutes “good cause.” The evidence

supports FKCC’s position.

73. Mr. Jones disregard for FKCC’s rule governing the

award of credits by institutional examination and the use of

scholarship aid to fund his degree more than justifies the

Board’s decision to terminate Mr. Jones’ employment with FKCC.

His actions in not inquiring as to the legitimacy and

appropriateness of the award, were unreasonable and constituted

at a minimum a lack of good judgment on Mr. Jones’ part.

74. Mr. Jones’ effort to demonstrate that he has the

technical knowledge and expertise to continue as an instructor

in the marine engineering department ignores his failure to

demonstrate good judgment in this matter. That lack of good

judgment, not his lack of subject matter knowledge, constitutes

good cause for the Board’s decision to terminate his employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Trustees of the Florida

Keys Community College enter a final order finding that there is

good cause to eliminate 39 credits awarded to Timothy Jones by

institutional examination, and the associate in science degree

awarded as a consequence thereof, and terminating Mr. Jones from

employment with Florida Keys Community College.

DONE AND ENTERED this 13th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of February, 2009.

COPIES FURNISHED :

Samuel J. Kaufman, Esquire

Law Offices of Samuel J. Kaufman, P.A.

1509 Josephine Street, Suite 1

Key West, Florida 33040

Robert L. Norton, Esquire

Luke C. Savage, Esquire

Allen, Norton & Blue, P.A.

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.