06-001069 Florida A And M University Board Of Trustees vs. Janice Costin Status: Closed Recommended Order on Thursday, September 14, 2006.

Summary: Respondent was discharged for exceeding her authority, and Petitioner failed to show "adverse effect on university function."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1069

)

JANICE COSTIN , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administ rative hearing in this case

on June 1, 2006 , in Orlando , Florida.

APPEARANCES

For Petitioner: David C. Self , II, Esquir e

Shira R. Thomas, Esquire

Florida Agricultural and

Mechanical University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

For Respondent: Thomas Peter Hockman, Esquire

Hockman, Hockman & Hockman

2670 West Fairbanks Avenue

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether the dismissal of Respondent for exceeding her

authority, as delineated in the May 13, 2005, Notice of

Dismissal from Employment, was proper and should be upheld.

PRELIMINARY STATEMENT

In a May 13, 2005, letter entitled "Notice of Dismissal

f rom Employment , " Respondent, an employee of Florida A and M

University , was "notified of your [her] dismissal from

employment effective at the close of business on May 27, 2005."

The letter further stated:

This employment action is being taken

against yo u for conduct and work performance

that are not acceptable for your position as

Coordinator, Computer Applications. As area

manager for the computer and technological

infrastructure within the College of Law,

documented evidence exists that shows you

exce eded the scope of your authority to

(1) host 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. In order to protect the

integrity of the University's computer

system, and not compromise related security

issues, a consultation and request for

approval from the Information Technology

Services Office should have been made prior

to taking such actions cited herein.

On May 23, 2006, the Division of Administrative Hearings

received a Notice from Petitioner , advising that Respondent had

made a timely request for a formal administrative hearing. On

May 27 , 2006, an Initial Order was sent to both parties. Based

on the parties' Joint Response t o Initial Order, the case was

scheduled for final hearing in Orlando, Florida , on June 1,

2006.

The final hearing took place as scheduled. Petitioner

presented five witness: Janice Costin ; Dr. Kenneth Perry ; Jamie

Greenleaf ; Herman Paris Barker, Jr. ; and Howard Murphy.

Petitioner offered 12 exhibits into evidence , which were marked

Petitioner's Exhibits 1 through 12. Respondent presented six

witnesses: Janice Cost in, Robert Seniors, Wayne Dunwoody, and

Kenon Clarke , Gaidi Hartage, and Raymond Lanier . Respondent's

Exhibits 8 and 9, the depositions of Gaidi Hartage and Raymond

Lanier, are received and considered in lieu of their live

testimony. Nine of Respondent's exhibits were received into

evidence and were marked Respondent's Exhibits 1 - A,

1 - B (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 reques ted and received 30 days from the date of

filing of the hearing transcript to file proposed recommended

orders. The three - volume hearing T ranscript was filed on

July 14, 2006. On August 8, 2006, the parties filed a Joint

Motion t o Extend Time t o File Pr oposed 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.

FINDINGS OF FACT

Based on the oral and documentary evidence presente d at the

final hearing, the following findings of fact are made:

1. 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

a dministrativ e and p rofessional employee with the title of

c oordinator of c omputer a pplications ( d irector i nformation

t echnology). She is a ten - year university employee.

2. 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.

3. FAMU has a "secure" computer network among its main

campus in Tallahassee and six remote campuses , including the

College of Law in Orlando.

4. The "secure" link between cam puses utilizes "firewalls"

at each end and encryption to e nsure that valid information is

transmitted.

5. Internet communications are encrypted or "scrambled" at

the firewall of the originating location and then "unscrambled"

at the receiving location fir ewall , 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.

6. 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 tow ard 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. )

7. 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."

8. Dr. Kenneth Perry, a FAMU employee, is c hief

i nformation o fficer and i nformation r esource m anager and is

officed in Tallahassee. Respondent reports to Dr. Perry for her

technology duties. Administratively, her job d escription

advises that Respondent "reports directly to the Associate Dean

for Administration and Student Services [Dr. Ruth Witherspoon]. "

9. 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 .

10. At the direction of Percy Luney, d ean of the College

of Law, Petitioner implemented the replacem ent of the existing

Nokia firewall with an Enterasys firewall at the College of Law.

11. Dr. Perry did not approve changing the firewall as

required by published university policy.

12. Dr. Witherspoon, Respondent's administrative

supervisor at the Colleg e of Law, did not testify, but she

authored a Memorandum dated October 17, 2005, admitted into

evidence as Petitioner's Exhibit 1 1 , which states: "I was not

the one who directed Ms. Costin to host a website, install a

firewall, or post advertisements on t he 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

ar rangements, . . . , for Ms. Costin to

purchase equipment to install a firewall on

the new server. . . .

13. Respondent's Exhibit 1 - A, a memorandum dated

September 14, 2004, from Respondent to the Enterasys vendor, via

Dean Luney ( whose initials are hand wri tten 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."

14. 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.

15. No evidence was presented to the effect that the

university internet system had been compromised or breached , or

that the university su ffered any actual damage as a result of

the installation of the Enterasys firewall.

16. 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 havin g

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" w ebsite.

17. 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.

18. 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 A rchitecture has a ".net" website.

19. The FAMUlaw.com web site 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."

20. The same or similar commercial "links " had appeared on

the " . edu" website.

21. 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.

22. 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 chan ge in firewalls was not known by

Information Technology Services Department in Tallahassee.

23. No evidence was presented that Respondent had ever

received a negative job - performance evaluation during her tenure

with the university. Respondent did not re ceive a performance

evaluation of any kind while she was employed at the College of

Law.

24. 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 , " r aising the

following questions:

1. Why have you created a .com website

for the FAMU Law School?

2. 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 th e links to that

website).

3. Why are you spending state money for a

.com website?

4. Why does the www.famu - law.com

Information Technology web page contain

commercials for Dell and Gateway?

5. Why are you spending state money to

advertise for De ll and Gateway?

25. Respondent provided a courteous, reasoned reply to

Dr. Perry's e - mail inquiry the following day (5/10/2005).

26. Respondent's dismissal letter was dated May 13, 2005.

27. Respondent's job description succinctly states that

her "pri mary 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 "re sponsible for planning for the security of

the College of Law technology systems along with the Chief

Information Officer [Dr. Perry] . . ."

28. Respondent's job description further states: while

reporting "directly to the Associate Dean for Administrati on 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,

f ollowing general policy discussions."

29. 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.

30. According to her job descript ion, 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.

31. While tasked with the resp onsibility 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 Service s Department in

Tallahassee.

CONCLUSIONS OF LAW

32. 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).

33. Petitioner has the burden to esta blish 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) .

34. 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

p rovisions set forth herein:

(a) Just Cause shall be defined as:

1. Incompetence; or

2. Misconduct.

* * *

(f) Dismissal - The employee may be

dismissed during the term of the employment

contract for just cause, regardless of

tenur e status where it appears to the

President or President's designee that an

employee's action s adversely affect the

functioning of the University or jeopardize

the safety or welfare of the employee, other

employees or students. . . .

35 . No evidence has b een offered that suggests that

Respondent was incompetent in the performance of her job

responsibilities.

36 . 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 R ule 6C3 - 10.230), the Administrative Law

Judge stated:

Black's Law Dictionary defines " misconduct "

as " a transgression of some established

definite rule of act ion, a forbidden act, a

dereliction from duty, unlawful behavior,

willful in character, improper or wrong

behavior. "

3 7 . The Notice of Dismissal from Employment dated May 13,

2005, alleges three areas where "you [Respondent] exceeded the

scope of your au thority." 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 ad vertisements

within the area of the College of Law from commercial computer

companies.

3 8 . 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) .

3 9 . The Notice of Dismissal from Employment letter's first

sugg ested 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.

4 0 . 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 actu ally 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" w ebsite. 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" we bsite when t he web site

"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.

41 . 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.

42 . 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.

43 . Florida Administrative Code Rule 6C 3 - 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.

4 4 . 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 b e 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.

45 . 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 R espondent 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 b een suffered by the

university.

46 . 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 employee s 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is

RECOMMENDED that Respondent's dismissal from employment

with the university was not supported by the evidence and that

she should be reinstated with full pay.

DONE AND ENTERED this 14th day of September , 2006 , in

Tallahassee, Leon C ounty, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of September , 2006 .

COPIES FURNISHED :

David C. Self, II, Esquir e

Shira R. Thomas, Esquire

Florida Agricultural and

Mechanical University

Office o f the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

Thomas Peter Hockman, Esquire

Hockman, Hockman & Hockman

2670 West Fairbanks Avenue

Winter Park, Florida 32789

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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.