08-005576 Florida A And M University Board Of Trustees vs. Novella Franklin Status: Closed Recommended Order on Tuesday, June 23, 2009.

Summary: Several allegations against Respondent were not established. The proven allegation did not constitute a violation of University regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A & M UNIVERSITY, )

BOARD OF TRUSTEES, )

)

Petitioner, )

)

vs. ) Case No. 08-5576

)

NOVELLA FRANKLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on March 4, 2009, in Tallahassee, Florida, before

Barbara J. Staros, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linzie F. Bogan, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

For Respondent: John Londot, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether Respondent should be dismissed from

her employment with Petitioner for the reasons set forth in a

termination letter dated October 3, 2008.

PRELIMINARY STATEMENT

By letter dated October 3, 2008, Petitioner, Florida A&M

University, Board of Trustees (FAMU), notified Respondent,

Novella Franklin, that she was dismissed from employment,

effective at the close of business on October 16, 2008.

Respondent filed a Request for Formal Hearing and Protest

of Dismissal Action. Petitioner referred the request for

hearing to the Division of Administrative Hearings on or about

November 4, 2008.

A Notice of Hearing, dated November 14, 2008, scheduled the

hearing for February 2 and 3, 2009.

On January 15, 2009, Petitioner filed a Motion to Compel

and Request for Continuance. Following a telephone hearing on

the Motion, the Request for Continuance was granted and the

hearing rescheduled for March 3 and 4, 2009. The parties later

indicated that only one day would be necessary. The case was

heard on March 4, 2009.

At hearing, Petitioner presented the testimony of five

witnesses: Janet Johnson, Sharla Givens, Rosa Christie,

Danielle Kennedy-Lamar, and Ronald Gaines. Petitioner offered

exhibits lettered A through M, which were admitted into

evidence.

Respondent testified on her own behalf and presented the

testimony of two additional witnesses, Allison McNealy and

Saundra Inge. Respondent offered Exhibits numbered 12, 14, 19,

and 20 which were admitted into evidence. Respondent’s Exhibit

21 was proffered. A ruling on the admissibility of Respondent's

Exhibit 21 was withheld and the parties given the opportunity to

address this issue in proposed orders. Upon consideration,

Respondent’s Exhibit 21 is rejected and not in evidence. 1/

A Transcript consisting of two volumes was filed on

March 19, 2009. On April 16, 2009, the parties filed an Agreed

Motion for Continuance to Submit Proposed Recommended Order.

The Agreed Motion was granted and the parties timely filed

Proposed Recommended Orders which have been duly considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent Novella Franklin began her employment with

FAMU in 1987. From 1993 to December 1996, and again from

November 1999 through 2008, Ms. Franklin worked in the

Registrar’s Office. At all times material to this proceeding,

Respondent held the position of Office Manager in the

Registrar’s Office.

2. On or about June 2, 2008, Ms. Janet Johnson accepted

the position of Registrar at FAMU. Ms. Johnson’s first day of

employment was July 7, 2008. Prior to that date, the position

of Registrar had been vacant for some time.

3. Ms. Johnson had previously worked for FAMU at a time

not material to this proceeding. Ms. Johnson and Respondent

knew each other from the time of Ms. Johnson’s previous

employment there.

4. In mid-June 2008, Respondent asked Roland Gaines, Vice

President for Student Affairs, for Ms. Johnson’s telephone

number so that she could contact Ms. Johnson regarding several

matters related to her transition to employment at FAMU.

Mr. Gaines’ assistant provided Ms. Johnson’s telephone number to

Respondent.

5. In mid-to-late June 2008, Respondent phoned Ms. Johnson

to welcome her back to FAMU and to assist Ms. Johnson with her

transition back to FAMU. During telephone conversations,

Respondent asked Ms. Johnson if she needed Respondent’s

assistance with securing employment related items such as a

parking decal, name plate, business cards, and access into the

building where the Registrar’s Office is located. Respondent

also asked Ms. Johnson if she wanted Respondent to order

signature stamps for the office.

6. At all times relevant to this proceeding, Denise Jones

was the Administrative Assistant for the Office of the

Registrar.

7. On June 26, 2008, Ms. Johnson sent an e-mail addressed

to Respondent and Ms. Jones which stated as follows:

Good morning ladies,

Novella, thanks for contacting me and

gathering pertinent information to assist

with my arrival to FAMU.

Attached are several copies of my signature,

select one (a good looking clear one) and

use for the documents & stamps needed in the

office. Select from one of the Janet E.

Johnson signatures.

Please protect these signatures. In the

past they should be destroyed once used.

I look forward to seeing you all on the 7th.

Janet E. Johnson

8. Attached to the e-mail were several versions of

Ms. Johnson’s signature, as referenced in the e-mail.

9. After receiving Ms. Johnson’s e-mail, Respondent spoke

to Ms. Jones, who provided Respondent with the name and phone

number of the Tallahassee Stamp Company. Ms. Jones is the

person who typically orders supplies for the Registrar’s Office

through a requisitioning process. Respondent learned from

Ms. Jones that the budget had not yet been approved to purchase

office supplies.

10. In late June or the beginning of July, Respondent

called Tallahassee Stamp Company and spoke to an employee there.

On July 2, 2008, Respondent sent an e-mail to Tallahassee Stamp

Company wherein she placed an order for a signature stamp

containing Ms. Johnson’s signature. The e-mail contained the

same attachment that Ms. Johnson provided in her e-mail to

Respondent and Ms. Jones. Respondent’s e-mail to the stamp

company stated, “Good morning. See attached signature for a

stamp. The third from the top.”

11. At the time she placed the order for the stamp,

Respondent did not inform anyone at FAMU that she had placed the

order.

12. On July 21, 2008, Ms. Jones prepared a requisition for

five signature stamps containing Ms. Johnson’s name. On

July 24, 2008, Ms. Johnson approved the requisition for the five

signature stamps.

13. In addition to her position as Office Manager at the

Registrar’s Office, Respondent was the Head Coach of the FAMU

women’s bowling team. On July 25, 2008, Respondent left to

attend a funeral in Chicago for a student athlete who had been

killed in a car accident. Respondent returned to work mid-day

on July 29, 2008.

14. On July 30, 2008, Respondent reported to work in the

morning and then left for a doctor’s appointment. On the way

back to work, she stopped by Tallahassee Stamp Company. She

picked up one stamp with Ms. Johnson’s signature and paid for it

with her personal funds. She then stopped for lunch and

thereafter returned to work around 12:30 p.m.

15. Upon returning to work, Ms. Sharla Givens, a

Transcript Specialist in the Registrar’s office, walked by

Respondent’s desk. Respondent then showed Ms. Givens the

signature stamp she had just picked up from the stamp company

and informed Ms. Givens that she had purchased it with her own

funds. Ms. Givens describes her reaction to Respondent having

the stamp as “shocked.”

16. Respondent then went to the desk of Rosa Christie, the

receptionist for the Registrar’s Office, and showed Ms. Christie

the stamp. Ms. Christie’s desk is just outside Ms. Johnson’s

office.

17. Respondent informed Ms. Christie that she had

purchased the stamp for Ms. Johnson and that Ms. Johnson should

not have to wait until funds were available to receive a

signature stamp. Ms. Christie told Respondent that that was

“nice.” Respondent also told Ms. Jones and another staff

member, Ms. Thomas, about having the signature stamp.

18. That afternoon, at approximately 4:45 p.m., Respondent

was called into Ms. Johnson’s office and received a written

reprimand for a matter unrelated to the allegations which form

the basis for this proceeding. This meeting took 20 to 25

minutes. Respondent did not inform Ms. Johnson that she had the

signature stamp during this meeting or at any other time.

19. Respondent was upset at having received a written

reprimand. She prepared a written response which was ultimately

submitted to the Assistant Registrar on August 5, 2008.

20. Danielle Kennedy-Lamar is the Associate Vice President

for Student Affairs and is in charge of enrollment management.

Prior to the time that Ms. Johnson was hired as Registrar and

for a short time thereafter, student transcripts were stamped by

Ms. Kennedy-Lamar’s administrative assistant, Allison McNealy.

21. Ms. McNealy learned from Ms. Givens that Respondent

had a signature stamp. Ms. McNealy reported this to

Ms. Kennedy-Lamar and inquired whether she, Ms. McNealy, would

continue to stamp transcripts.

22. On August 1, 2008, Ms. Kennedy-Lamar had a previously

scheduled meeting with Ms. Johnson. During this meeting,

Ms. Kennedy-Lamar asked Ms. Johnson if Ms. Johnson was aware

that Respondent had a stamp bearing Ms. Johnson’s signature.

Ms. Johnson informed Ms. Kennedy-Lamar that she was not aware

that Respondent had a signature stamp.

23. Ms. Kennedy-Lamar then instructed Ms. McNealy to ask

Ms. Givens if she had any transcripts and, if so, to have

Respondent stamp them. Ms. Kennedy-Lamar did this to determine

whether such a stamp existed.

24. Ms. Givens then delivered several transcripts to

Respondent, asked Respondent to stamp the transcripts, and

advised Respondent that Respondent had the authority to stamp

the transcripts.

25. Respondent did not immediately stamp the transcripts,

but eventually stamped them as instructed.

26. At the time she stamped the transcripts, Respondent

did so with authorization form Ms. Kennedy-Lamar’s office.

27. The transcripts then were returned to Ms. Kennedy-

Lamar, who recalls that there were approximately 20 transcripts.

Ms. Kennedy-Lamar then gave the stamped transcripts to

Ms. Johnson. The stamped transcripts were not disseminated to

the students or whoever requested them.

28. Ms. Johnson thereafter instructed Ms. Jones to cancel

the stamp order that she had previously authorized and prepared

another signature to order a different signature stamp.

29. At the time Respondent was instructed to stamp

transcripts, the standard procedure was as follows: Ms. Givens

or Ms. Thomas from the Registrar’s Office, or on some occasions

Respondent, would bring printed transcripts to Ms. McNealy in

Ms. Kennedy-Lamar’s office. Ms. McNealy would stamp the

transcripts. Ms. McNealy would then notify Registrar staff that

the transcripts were ready for pickup. Ms. Givens, Ms. Thomas,

or on some occasions Respondent, would retrieve the stamped

transcripts. Ms. McNealy did not conduct a review of the

transcripts before stamping or ask Ms. Kennedy-Lamar to review

them prior to stamping them.

30. Roland Gaines is Vice-President for Student Affairs at

FAMU. On May 8, 2008, Dr. James Ammons, President of FAMU,

delegated to Mr. Gaines the authority to administer all

applicable FAMU regulations, policies, and procedures affecting

employment and personnel actions consistent with Chapter 10 of

FAMU regulations.

31. On September 18, 2008, Mr. Gaines wrote a letter to

Respondent notifying her of the University’s intent to dismiss

her from employment and placing her on leave with pay. The

10.302(3)(y), and 10.302(3)(cc) as authority, and states in

pertinent part as follows:

This employment action is being considered

against you for the following alleged work

violations:

* * *

This proposed employment action is being

considered against [sic] for your alleged

failure to follow the protocols established

by the University Registrar’s Office for

processing student transcript requests. In

addition, you allegedly requested, via e-

mail, the production of a facsimile stamp

bearing the signature of the Registrar; used

your personal funds to purchase the stamp;

and embossed 43 transcripts totaling 140

documents which were released without

appropriate review and approval by the

designated University authority. The

enclosed documents from the Division of

Audit and Compliance provide further details

of the subject allegations of misconduct.

32. The September 18, 2008, letter also provides

Respondent with an opportunity to request a predetermination

conference to present an oral or written statement, or both, to

refute or explain the charges against her.

33. Respondent submitted a written response and a

predetermination conference was held on September 29, 2008.

34. On October 3, 2008, Mr. Gaines notified Respondent by

letter that she was dismissed from employment effective at the

close of business October 16, 2008. The letter again cited the

same FAMU regulations which were cited in the September 18,

2008, letter and added no additional or different factual bases

for Respondent’s termination.

35. The October 3, 2008, letter also advised Respondent of

her right to appeal this action.

36. FAMU referred Respondent’s appeal of her termination

to the Division of Administrative Hearings, and this de novo

proceeding ensued.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2008), and its

contract to hear such cases.

38. The parties stipulated that FAMU has the burden of

proving by a preponderance of the evidence that Respondent

should be dismissed from her employment for the reasons

specified in the October 3, 2008, termination letter from

Mr. Gaines to Respondent.

39. FAMU Regulations 10.111, 10.302, and 1.019 are duly

promulgated regulations which were in effect at all times

material to this proceeding.

40. The October 3, 2008, dismissal letter alleged that

Respondent violated Regulation 1.019(4) which reads in pertinent

part as follows:

University Code of Conduct:

(4) Conflict of Interest and Commitment-

Faculty and staff of the University owe

their primary professional allegiance to the

University and its mission to engage in

education, scholarship and research. . .

Thus, all officers, faculty, principal

investigators, staff, student employees and

others acting on behalf of the University

hold positions of trust, and the University

expects them to carry out their

responsibilities with the highest level of

integrity and ethical behavior. In order to

protect the University’s mission, members of

the University community with private or

other professional or financial interests

which conflict with applicable State of

Florida’s, state or federal laws and

University rules and policies must disclose

them in compliance with the University’s

conflict of interest/conflict of commitment

policies and the Florida Code of Ethics for

Public Officers and Employees.

41. The October 3, 2008, dismissal letter alleges that

Respondent violated Regulation 10.111(1) and (2)(b), which reads

as follows:

(1) Disruptive Conduct—Faculty,

Administrative and Professional, and USPS

employees who intentionally act to impair,

interfere with, or obstruct the orderly

conduct, processes, and functions of the

University shall be subject to appropriate

disciplinary action by the University

authorities.

* * *

(2) Disruptive conduct shall include,

but not be limited to, the following:

* * *

(b) Theft, conversion, misuse or

willful damage or destruction of University

property, or the property of employees of

the University.

42. The October 3, 2008, dismissal letter alleges that

Respondent violated Regulation 10.302(3)(y) and (cc), which

reads as follows:

Disciplinary and Separation from Employment

Actions for University Support Personnel

System Employees.

(3) Offenses- Standards for

Disciplinary Action. The most common

occurrences are listed below, but the list

is not all-inclusive. The disciplinary

actions for the listed offenses have been

established to help assure that employees

who commit offenses receive similar

treatment in like circumstances.

* * *

(y) Willful Violation of University

Written Rules: Regulations and Policies; or

Willful violation of State Laws - This

includes the willful disregard of internal

department written rules and policies. . .

* * *

(cc) Conduct unbecoming a Public

Employee-Conduct, whether on or off the job,

that adversely affects the employee’s

ability to continue to perform his/her

current job, or which adversely affects the

University’s ability to carry out its

assigned mission.

1. First occurrence- Written reprimand,

five (5) days suspension or dismissal.

2. Second occurrence- Five (5) days

suspension or dismissal.

3. Third occurrence- Dismissal.

43. Before analyzing the individual regulations alleged to

have been violated, the allegations of Respondent’s conduct must

be examined. These allegations or charges were set out in

Mr. Gaines’ September 18, 2009, letter to Respondent and were

not expanded in the October 3, 2008, termination letter. These

letters constitute the charging documents in this case and,

therefore, define the parameters of this analysis. The

September 18, 2008, letter states in pertinent part:

This proposed employment action is

being considered against [sic] for your

alleged failure to follow the protocols

established by the University Registrar’s

Office for processing student transcript

requests. In addition, you allegedly

requested, via e-mail, the production of a

facsimile stamp bearing the signature of the

Registrar; used your personal funds to

purchase the stamp; and embossed 43

transcripts totaling 140 documents which

were released without appropriate review and

approval by the designated University

authority. The enclosed documents from the

Division of Audit and compliance provide

further details of the subject allegations

of misconduct.

44. The evidence does not establish the allegation or

charge that Respondent failed to follow protocols established by

the Registrar’s office for processing transcript requests. The

evidence established that Respondent stamped the transcripts

only after being instructed to do so and with the understanding

that she, at that particular time and under the particular

circumstances, had the authority to do so from the Office of the

Associate Vice-President of Student Affairs.

45. The evidence does not establish the allegation or

charge that Respondent embossed 43 transcripts, totaling 140

documents which were released without appropriate review and

approval by the designated University authority. As to the

number of transcripts, the evidence established that 15-to-20

transcripts totaling approximately 43 sheets of paper were

stamped or embossed.

46. Further, the evidence does not establish the

allegation or charge that the transcripts were released without

appropriate review. The usual practice for stamping transcripts

was, in essence, ministerial in nature. The transcripts stamped

by Respondent received as much “review and approval” as any

other transcripts stamped at that time, inasmuch as they usually

were stamped at the direction of Ms. Kennedy-Lamar, but not with

any substantive review or approval by her or her office.

47. The evidence does establish the allegation or charge

that Respondent requested via e-mail the production of a

facsimile stamp bearing the signature of the Registrar, and paid

for with her personal funds. Since this allegation or charge

was established by the evidence, the question then becomes, did

Respondent violate any of the regulations cited as authority in

the charging documents when she ordered the production of the

facsimile stamp bearing the signature of the registrar and paid

for it with her personal funds? 2/

48. FAMU argues that by securing the Registrar’s signature

stamp, which it characterizes as a clandestine process, which

did not involve the Registrar, and by failing to timely inform

the Registrar that the stamp was in her possession, that

Respondent violated both Regulations 1.019(4) and 10.302(3)(cc).

49. Respondent was one of two recipients of an e-mail from

the incoming Registrar specifically instructing the recipients

to select a clear signature and order a signature stamp. The

body of the e-mail from the incoming Registrar references

Respondent, not the other recipient. This communication clearly

involved the incoming Registrar. Once Respondent picked up the

stamp, she showed it to other staff members upon returning to

the office. The facts simply do not support the description of

Respondent’s procurement of the stamp as clandestine.

50. There is no evidence that Respondent violated

University Regulation 1.019(4) relating to the University Code

of Conduct. The thrust of subsection (4) goes to disclosure of

potential conflicts of interest, of which there are none in this

case. Further, no evidence was presented that Respondent used

or attempted to use the signature stamp for her own benefit.

Finally, this regulation does not provide a disciplinary basis

with respect to the conduct alleged to have been committed in

this case.

51. Nor does the evidence support a conclusion that

Respondent engaged in conduct unbecoming a public employee.

Accordingly, the evidence does not support a conclusion that

Respondent violated University Regulation 10.302(3)(cc).

52. Finally, the charging documents allege that Respondent

violated University Regulation 10.111(1) and (2)b. Subsection

(1) advises that University employees who intentionally act to

impair, interfere with, or obstruct the orderly conduct,

processes, and functions of the University shall be subject to

appropriate disciplinary action. Subsection (2)b. references

theft, conversion, misuse or willful damage or destruction of

University property.

53. Respondent did not steal, convert, misuse, or

willfully damage or destroy University property when she ordered

and purchased the signature stamp. She only used it when

instructed to do so.

54. Finally, The undersigned is not persuaded that

Respondent engaged in disruptive conduct as contemplated by

subsection (1) of the above regulation. While Respondent did

not use the requisition process that is normally used, she

ordered the stamp after having received direction to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order rescinding its

October 3, 2008, letter terminating Respondent from employment,

thereby entitling Respondent to reinstatement to a comparable

position, and appropriate back pay from the effective date of

her termination until the date of reinstatement.

DONE AND ENTERED this 23rd day of June, 2009, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 23rd day of June, 2009.

ENDNOTES

1/ At hearing, FAMU objected to the admission of Respondent’s

Exhibit 21 on the basis of attorney-client privilege. Counsel

for the parties describe Respondent’s Exhibit 21 as an e-mail

from FAMU’s General Counsel to Dr. O’Dour, Vice President of

Audit and Compliance for FAMU. Petitioner argues that the

document was disclosed during discovery and, therefore, any

privilege has been waived. FAMU describes the disclosure as

inadvertent and made on the eve of hearing. FAMU argues that

the document is protected as attorney work product, citing

Section 119.07(1)(d)1., Florida Statutes. That argument is

rejected as the disclosure was made during discovery, not as a

result of a public records request. However, the undersigned

recognizes that waiver of the attorney-client privilege is not

favored in Florida. Liberty Mutual Ins. Co. v. Lease Am., Inc. ,

735 So. 2d 560, 562 (Fla. 4th DCA 1999), cited with approval in

TIG Insurance Corp. of America v. Aben E. Johnson, et al. , 799

So. 2d 339 (Fla. 4th DCA 2001). Moreover, the undersigned has

considered the limited facts regarding the disclosure, has

applied the “relevant circumstances test,” See Abamar Housing

and Development, Inc. v. Lisa Daly Lady Décor, Inc. , 698 So. 2d

276 (Fla. 3rd DCA 1997), and has determined that this

inadvertent disclosure does not constitute a waiver of the

privilege. Accordingly, Respondent’s proffered Exhibit 21 is

not in evidence and has not been considered.

2/ In its Proposed Recommended Order, FAMU conceded that no

evidence was offered that suggests that Respondent violated

internal department written rules and policies in violation of

University Regulation 10.302.(3)(y). Therefore, the analysis

will not address that regulation.

COPIES FURNISHED :

Avery McKnight, Esquire

Linzie F. Bogan, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

John K. Londot, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

Dr. Eric J. Smith

Commissioner 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.