10-009221 Florida A And M University Board Of Trustees vs. Mar'shell L. Smiley Status: Closed Recommended Order on Monday, February 7, 2011.

Summary: Petitioner should be terminated for borrowing $2,000 from a vendor then offering to increase the payments of an invoice to satisfy the personal debt in part.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9221

)

MARÓSHELL L. SMILEY , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 13,

2010, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Avery McKnight, Esquire

Linzie F. Bogan, Esquire

Florida A & M University

Lee Hall, Suite 300

Tallahassee, Florida 32307

For Respondent: Theodore E. Mack, Esquire

Powell & Mack

803 North Calhoun Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly determined that

Respondent's employment should be terminated for violating

certain work standards.

PRELIMINARY STATEMENT

By letter dated June 29, 20 10, Petitioner Florida A & M

University, Board of Trustees (Peti tioner), advised Respondent

MarÓ Shell Smiley (Respondent) that her employment was

terminated. The letter alleged that Respondent had violated the

following regulations: (a) Regulation 1.019( 4), University Code

of Conduct: Conflict of Interest and Commitment; (b) Regulation

10.111(1), Disruptive Conduct; (c) Regulation 10.122(2), Outside

Employment/Activities: Financial Interest and Other Conflicts;

(d) Regulation 10.302(3)(y), Willful Violat ion of University

Written R ules; and (e) Regulation 10.302 (3)(cc), Conduct

Unbecoming a Public Employee.

By letter dated August 25, 2010, Respondent filed an

amended official request for a formal administrative hearing.

Petitioner referred the case to the Division of Administrative

Hearings on September 21, 2010.

A Notice of Hearing dated October 4, 2010, scheduled the

hearing for December 13 and 14, 2010. When the hearing

commenced, Petitioner presented the testimony of three witnesses

and offered 12 exhibits that were accepted as evidence.

Respondent testified on her own behalf, presented the testimony

of one additional witness, and offered one composite exhibit

that was accepted as evidence.

Upon agreement of the parties at the conclusion of t he

hearing, the parties were given an opportunity to file proposed

recommended orders within 20 days of the filing of the

Transcript. The court reporter filed the Transcript on

January 5, 2010. The parties timely filed their proposed

findings of fact and conclusions of law on January 25, 2011.

Except as otherwise noted, references hereinafter are to

Florida Statutes (2010).

FINDINGS OF FACT

1 . At all times relevant here, Respondent worked for

Petitioner as Office Manager in Petitioner's Facility Planning

and Construction Office (FPCO). Respondent's job

responsibilities included the handling of paperwork and entering

information into Petition er's electronic system, including the

creation of electronic requisitions and project change orders,

subject to review and approval as described below.

2 . Sam Houston, as Director of FPCO, was Respondent's

supervisor. Respondent's office was next to M r. Houston's

office. At all times relevant here, Mr. Houston's office was

overworked and understaffed.

3 . Joseph Bakker is Petitioner Ó s Associate Vice President

of Administration and Financial Services. PetitionerÓ s policy

requires Mr. Houston and Mr . Bakker to approve all requisitions

and change orders for the purchase of goods and/or services.

4. In contracting for goods and services in the usual

course of business, a project manager will create a written

"Scope of Work" for a project. For some smaller projects or

emergency projects, the project manager may not create a written

"Scope of Work" b ut will verbally describe the project scope to

various vendors. The project manager for the projects at issue

here was Sunday Edukore.

5. After learning about the scope of a project, an

interested vendor will submit a written proposal to do the work.

The proposal is usually submitted before the vendor begins work.

6 . Based on the proposal, the project manager routinely

fills out and signs a requisition order form. The requisition

order form is then forwarded to Mr. H oustonÓ s office, where it

is r eviewed by Chuks Onwunli, Associate Director of FPCO.

Respondent or someone in the office would then give the

requisition order form to Mr. Houston and Mr. Bakker for their

approval and signatures.

7 . After the requisition order form is approved,

Resp ondent usually inputs the information in the computer system

to create an electronic requisition. She sends the electronic

requisition to Mr. Houston and Mr. Bakker for their electronic

approval. Finally, the Purchasing Office uses the approved

electroni c requisition to create a purchase order.

8. When the work on the project is completed, the vendor

submits an invoice, together with a notarized Certificate of

Contract Completion, directly to the project manager or through

the mail to FPCO. If the in voice is mailed to FPCO, it is

logged at the front desk. In any event, the project manager

signs the invo ice and sends it to Mr. HoustonÓ s office.

9 . Next, Mr. Houston and Mr. Bakker review and sign the

invoice before it is sent to Petitioner's Comptr oller. Finally,

the Comptroller makes the payment to the vendor.

10 . If, when doing the work, there is an unforeseen

condition that requires more work, a change order may be

necessary. In a small project, such as the ones involved in

this case, Respo ndent would be responsible for creating a new

electronic requisition or adding a line to the original

electronic requisition.

11 . In either case, the change order would first be

approved by the project manager. It would then be logged in at

the front desk and given to Respondent. Next, Mr. Houston would

sign off on the change order and give it back to Respondent.

12 . After Mr. Houston approves the change order,

Respondent puts it in the electronic system. Finally, the

amended requisition is elect ronically approved by Mr. Houston

and Mr. Bakker before being sent to the comptroller for payment.

13. At all times relevant here, Sandra Ford was the

President and an owner of Dynamics Professional Cleaning and

Staffing, Inc. (D ynamics). As one of Pe titionerÓ s vendors,

Dynamics began providing cleaning services to Respondent in 2005

on a contract basis.

14 . Ms. Ford and Respondent became friends in May or June

of 2009. Occasionally, they had lunch and went shopping. They

attended a concert toget her. On more than one weekend, they

traveled together to Bil oxi, Mississippi, to play black jack in a

casino. On those trips, Ms. Ford and Respondent sometimes lent

each other money.

15 . Ms. Ford often visited with Respon dent in her office.

Responden tÓ s testimony that she did not know Ms. FordÓ s company

had been one of Petitioner's vendors in the past is not

credible. It is also not believable that Respondent did not

know Dynamics wanted to continue to do cleaning work for

PetitionerÓ s facilities.

16 . One day in the fall of 2009, Ms. Ford visited

Respondent in her office at the university. During the visit,

Respondent told Ms. Ford that Respondent was about to lose her

house in foreclosure. Respondent then asked Ms. Ford to loan

her $2,000 to sa ve her house.

17 . Ms. Ford later discussed the request for a loan with

her cousin/business partner. Ms. Ford and her cousin decided to

lend Respondent the money, hoping that Dynamics would then get

its invoices processed faster.

18. Ms. Ford gave Respondent a check in the amount of

$2 , 000. The check, dated September 15, 2009, was written on

Dynamics Ó bank account. Respondent cashed the check, promising

to repay the loan on a monthly basis.

19 . Respondent made one payment in November 2009 in the

amount of $300. From then on, the friendly relationship between

Respondent and Ms. Ford changed. Respondent began avoiding

Ms. Ford and evading inquiries about payment on the loan.

Respondent never advised Mr. Houston about her friendship with

Ms. F ord or the $2,000 loan.

20 . In December 2009, Dynamics completed a cleaning

project for Petitioner at the old Developmental Research School

(old DRS). The project manager, Sunday Edukore, did not create

a written "Scope of Work" for the small job beca use it needed to

be done quickly. Instead, Mr. Edukore provided Ms. Ford with

the following verbal description: (a) sanitizing six bathroom s ;

(b) installing nine toiletry dispensers, five soap dispensers,

and four paper towel dispensers; (c) cleaning wal ls and stall

dividers, including removal of mildew; and (d) uninstalling

tissue dispensers from Jones Hall and reinstalling them at the

old DRS bathroom facilities.

21. For the old DRS cleanup project, there is no record of

Dynamics Ó written proposal w ith a December 2009 date.

Additionally, there is no record of a December 2009 requisition

order form for the job.

22 . The record contains a written proposal, dated

January 7, 2010, to do the work at the old DRS. The proposal

states that Dynamics woul d do the work for $1,400. This

proposal obviously was created after the work at the old DRS was

completed in December 2009.

23 . On or about January 7, 2010, Mr. Edukore gave Ms. Ford

a written "Scope of Work" for cleaning Jones Hall. The job

included the following: (a) removing and disposing all debris

in all spaces on five floors; (b) debris includes non - fixed

furniture/equipment; and (c) vendor responsible for dumpster.

24 . In a written proposal dated January 15, 2010, Dynamics

agreed to clean Jones Hall for $3,750. That same day,

Mr. Edukore completed and signed a requisition order form for

the Jones Hall cleaning.

25 . The record also contains a requisition order form

dated January 15, 2010, for the old DRS cleaning job. The

requisition o rder form appears to contain Mr. Edukore's

signature dated February 2, 2010.

26 . Additionall y, the record contains DynamicsÓ invoice,

dated January 18, 2010, for the work done at the old DRS

building. It appears that Mr. Edukore signed the invoice on

February 1, 2010.

27 . On or about February 1, 2010, Mr. Edukore insisted

that Ms. Ford submit invoices for the cleaning of the old DRS

and Jones Hall before he went on a three - week out - of - country

vacation. Ms. Ford gave him the invoices that same day.

28 . DynamicsÓ invoice for the job at Jones Hall is dated

February 1, 2010. The record also includes a notarized

Certificate of Contract Completion for the Jones Hall job signed

by Mr. Edukore on February 1, 2010.

29 . Sometime in early February 20 10, Respondent contacted

Ms. Ford by telephone. Respondent advised Ms. Ford that she was

paying the invoice for the Jones Hall cleaning in the amount of

$3,75 0. Respondent then stated that she wanted to hold up on

payment of the invoice for the old DRS c leaning in order to do a

change order in the amount of $1,000. Respondent stated that

the purpose of the change order was to cover $1,000 towards the

money she owed Ms. Ford. Ms. Ford understood that Respondent

wanted to pay Dynamics $2,400 instead of th e $1,400 contract

price for the old DRS cleaning.

30 . Ms. Ford refused Respondent Ó s suggestion for a change

order becau se it would jeopardize DynamicsÓ relationship with

Petitioner as well as Responde ntÓ s job. Respondent tried to

persuade Ms. Ford to change her mind by stating that Ms. Ford

did not have to do anything and that Respondent would handle it

all. Ms. Ford did not agree.

31 . Petitioner paid Dynamics $3,750 for the Jones Hall

cleaning on February 12, 2010. At that time, Ms. Ford believed

that Dynamics would receive a check for $1,400 for the old DRS

cleaning.

32 . The record contains a copy of a purchase order for the

old DRS cleaning dated February 22, 2010. The purchase order

includes a notation that states as follows: "Hold From Further

Processing."

33 . Sometim e in March 2010, Ms. Ford contacted Respondent

to inquire about payment for the old DRS cleaning. Respondent

responded that she did not know anything about the invoice.

34 . Ms. Ford contacted Mr. Houston's office to c omplain

that she had not been paid for the old DRS cleaning and to

advise him about Respondent Ó s offer to create a change order.

Mr. Houston asked Ms. Ford to put her complaint and concerns in

writing. Ms. Ford did so in a letter dated March 24, 2010.

35 . Petitioner paid Dynamics $1,400 for the old DRS

cleaning on March 30, 2010. During a subsequent investigation,

Mr. Houston was unable to find all of the documentation for the

old DRS cleaning job that is usually required in soliciting bids

and payin g invoices.

FINDINGS OF FACT

36 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case pursuant to sections 120.569, 120.57(1), and 120.65(7),

Florida Statutes.

37 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent violated work

standards and should be terminated. See Allen v. Sch. Bd. of

Dade Cnty. , 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v . Sch. Bd.

of Dade Cnty. , 569 So. 2 d 883 (Fla. 3d DCA 1990).

38 . Petitioner is authorized to promulgate university

regulations in accordance with the Regulation Development

Procedure ad opted by the Board of Governors p ursuant to section

1001.706(6)(a), Florida Statutes, and Regulation 1 .001 of the

State University System of Florida, Board of Governors.

Respondent is charged with violating Florida Agricultural and

Mechanical University (FAMU) Regulations 1.019(4), 10.122(2),

10.302(3)(y), 10.302(3(cc), and 10.111(1). The preponderance o f

the evidence establishes that Respondent violated the following

regulations.

39 . FAMU Regulation 1.019, University Code of Conduct,

provides as follows in relevant part:

(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. The

University has obligation to parents and

students, government, external organization,

and donors to use its resources respon sibly

and, where required, for designated purposes.

Thus, all officers, faculty, principal

investigators, staff, student employees and

others action on behalf of the University

hold positions of trust, and the University

expects them to carry out their

re sponsibilities with the highest level of

integrity and ethical behavior. In order to

protect the UniversityÓ s mission, members of

the University community with private or

other professional of financial interests

which conflict with applicable State of

Fl o ridaÓ 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.

40 . FAMU Regul ation 10.111, Disruptive Conduct, states 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 function of the

U niversity shall be subject to appropriate

disciplinary action by the University

authorities.

41 . FAMU Regulation 10.122, Outside Employment/Activities;

Financial Interests and Other Conflicts, provides as follows in

pertinent part:

(2) The responsi bility of the University

employee is the full and competent

performance or all duties pertinent to

his/her employment with the University.

Outside employment/activities or financial

interest which int erferes [sic] with the

employeeÓ s obligations to the Un iversity is

prohibited. Employees of the University

should avoid actual or apparent conflict of

interest between their University obligation

and their outside employment/activities or

financial interests.

42 . FAMU Regulation 10.302(3)(y), prohibits t he willful

violation of University rules, regulations, policies, and state

laws.

43 . FAMU Regulation 10.302(3)(cc), prohibits an employee

from engaging in "[c]onduct, whether on or off the job, that

adversely affects the employee Ó s ability to continue to perform

his/her current job, or which a dversely affects the UniversityÓ s

ability to carry out its assigned mission."

44 . Respondent knew or should have known that Dynamics was

one of PetitionerÓ s vendors. Respondent also knew she would be

responsible for an important part of the process in paying

Dynamics Ó invoices. In this case, Respondent Ó s private financial

interests w ere in conflict with PetitionerÓ s public interest of

operating a transparent p rocurement process. RespondentÓ s

borrowing money fro m Dynamics then offering to do a change order

to increase payment to Dynamics is precisely the type of dealing

that FAMU Regulations 1.019 and 10.122 were designed to guard

against.

45 . Additionally, Respondent's conduct was clearly

unbecoming of a pub lic employee, in violation of FAMU Regulation

10.302(3)(cc). Respondent act ed in willful disregard of FAMUÓ s

written rules, regulations, policies and state laws as proscribed

by FAMU Regulation 10.302(3)(y).

46 . RespondentÓ s attempt to manipulate Peti t ionerÓ s

procurement processing and payment system for the purpose of

reducing a private debt obligation is a clear violation of FAMU

Regulation 10. 111(1) because any such Ðoffer,Ñ in and of itself,

int erferes with and obstructs FAMUÓ s processes and functi ons

related to operating a transparent procurement process. The

question whether Respondent could have successfully accomplished

her impermissible objective is immaterial.

47 . The only remaining issue relates to the severity of

Re spondentÓ s discipline. FAMU Regulation 10.302 provides for

progressive discipline with a first violation of FAMU Regulations

10.302(3)(y) and 10.302(3)(cc) , resulting in a written reprimand,

five days Ó suspension, or dismissal. For such a serious offense

as the one committed by Respondent here, the appropriate

discipline is dismissal from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a fi nal order terminating Respondent,

Ma rÓShell L. SmileyÓ s employment for cause.

DONE AND ENT ERED this 2nd day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 2nd day of February , 2011 .

COPIES FURNISHED :

Avery McKnight, Esquire

Florida A & M University

300 Lee Hall, Suite 300

Tallahassee, Florida 32307

Linzie F. Bogan, Esquire

Florida A & M University

Lee Hall, Suite 300

Tallahassee, Florida 32307

Theodore E. Mack, Esquire

Powell & Mack

803 North Calhoun Str eet

Tallahassee, Florida 32303

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah J. Kearney, General Counsel

Department of Education

Turl ington 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.