91-004650 Hillsborough Community College vs. Joseph P. Boyle Status: Closed Recommended Order on Friday, March 19, 1993.

Summary: Tenured instructor who repeatedly ignored direction of trustee chairman and college president to attend conferences guilty of gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COMMUNITY COLLEGE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4650

)

JOSEPH P. BOYLE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on February 10, 1993,

before Arnold H. Pollock, a Hearing Officer with the Division of Administrative

Hearings.

APPEARANCES

For the Petitioner: John M. Breckenridge, Esquire

2502 Rocky Point Road, Suite 225

Tampa, Florida 33607

For the Respondent: Joseph P. Boyle, pro se

Post Office Box 327

Champlain, New York 12919

STATEMENT OF THE ISSUES

Should Respondent's tenure status be removed and he be terminated from

employment with Hillsborough Community College because of the matters set out in

the Amended Statement of Charges and Petition For Dismissal filed in this

matter?

PRELIMINARY MATTERS

By Statement of Charges and Petition for Dismissal dated June 10, 1991, Dr.

Andreas A. Paloumpis, President of Hillsborough Community College, (College),

seeks to dismiss Respondent, Professor Joseph P. Boyle, from employment with the

College for gross insubordination. The Statement of Charges and Petition was

served on the Respondent by US mail, and by letter dated July 22, 1991, the

matter was forwarded to the Division of Administrative Hearings for appointment

of a Hearing Officer.

Shortly thereafter, by letter of August 9, 1991, Professor Boyle's attorney

advised the Hearing Officer, Veronica Donnelly, of suggested hearing dates, as

did counsel for the College, and in late August, 1991, the matter was set for

hearing in Tampa on December 3, 1991. The scheduled hearing was subsequently

continued several times until, by Order dated November 16, 1992, the

undersigned, to whom the case had been reassigned in the interim, set the matter

for hearing in Tampa on February 10 and 11, 1993, at which time it was heard as

scheduled. In the interim, however, on June 1, 1992, the College filed an

Amended Statement of Charges and Petition for Dismissal adding additional

grounds relating to alleged misconduct by the Respondent in the classroom.

Also in the interim, the College, as a part of its pre-hearing discovery,

scheduled Respondent for deposition on August 7, 1992. Just prior to the

deposition, on August 4, 1992, Respondent sought a Protective Order from the

Hearing Officer on the basis that he was residing outside the state of Florida,

was in poor health, and would not agree to the taking of the deposition by

telephone conference call. Thereafter, on August 26, 1992, Respondent also

moved for the entry of a Summary Final Order in his favor as to the original

charge of insubordination on the basis that Respondent's deposition indicated

the strong possibility he had not received notice of any of the missed meetings

which formed the basis for that charge. Both the Motion for Protective Order

and the Motion for Summary Final Order were denied by Hearing Officer Donnelly

by Orders dated November 6, 1992.

Shortly thereafter, Professor Boyle's counsel, Merkle & Magri, P.A., filed

a Motion seeking permission to withdraw citing irreconcilable differences

between them and alleging that Respondent had failed to cooperate with the firm

in the litigation of this case. On November 17, 1992, the undersigned, as

Hearing Officer, issued an Order to Show Cause to the Respondent directing him

to demonstrate why counsel should not be granted permission to withdraw. This

Order was sent by US mail to Professor Boyle at the return address shown on the

last previous communication from the Professor, but when no timely response was

received, and the Order to Show Cause was returned undelivered with the notation

"attempted - not known", the undersigned thereafter entered an Order granting

Boyle's counsel permission to withdraw.

Shortly before the hearing, based on the College's counsel's Motion for

Discovery Sanctions, relating to Professor Boyle's failure to be deposed in

discovery, a hearing was held by telephone conference call to which counsel for

the college and the undersigned were parties. Prior to this call, the

undersigned had directed counsel for the college to attempt to get Professor

Boyle's participation in the conference. At the hearing, counsel related that

he had written to Professor Boyle in ample time for his participation,

suggesting that if the Professor, who claimed to have no phone at his residence,

would call the College's counsel, collect, he would be patched into the call and

could participate. Though the conference call was delayed for some time to

allow Boyle's participation, he failed to call and the hearing was commenced

without his participation.

During the hearing, coincidentally, the undersigned received a telephone

call from Professor Boyle. When advised that the undersigned would call him

back at the termination of the hearing, Professor Boyle said he had no phone.

As a result, the undersigned suggested Boyle make the call instead, which Boyle

did. In that post-hearing conversation, Boyle claimed that he still considered

himself to be represented by Mr. Merkle even though an Order releasing Merkle's

firm had been entered. Boyle claimed to have an independent contract with

Merkle and that under the law, he could not participate without his counsel.

All efforts to convince Professor Boyle that his counsel had withdrawn were to

no avail. After advising the professor that the hearing would be held as

scheduled in Tampa, and that though he could not present any evidence which

would have been discoverable during deposition, Boyle could, nonetheless,

participate in the hearing by cross examination of opposing witnesses, by

presentation of other material, and by argument, the conversation was terminated

by the undersigned. Before termination, the undersigned agreed, at Professor

Boyle's request, to attempt to contact Boyle's counsel and advise him of the

hearing and that Boyle still considered him to be his counsel.

Immediately thereafter, the undersigned telephonically attempted to contact

Mr. Merkle but was unable to do so. A message was left with Merkle's associate,

Ms. Weiger, that Professor Boyle still considered Mr. Merkle to be his counsel

and that the hearing would commence, as scheduled, on February 10, 1993, in

Tampa at the place cited in the last notice, a copy of which had been furnished

Merkle's firm.

Professor Boyle, notwithstanding his adamant indications he would not be

present, nonetheless appeared at the hearing. He was not represented by

counsel, however. The undersigned repeated to Professor Boyle in person that

Boyle was welcome to participate in the hearing with the only stricture being he

would not be able to present any evidence which would have been discoverable but

for his refusal to be deposed. Professor Boyle reiterated his claim that he was

represented by Mr. Merkle and that he could not legally say anything or

participate in any way without his counsel, and he thereupon left the room. He

did not return at any time during the presentation of the College's material.

At the hearing, Petitioner presented the testimony of Joaquim M. Campo,

former Chairman of the Board of Trustees of the College; Carl T. Watkins,

Auditor for the College for 13 years; and Dr. Andreas A. Paloumpis, President of

Hillsborough Community College at all times pertinent to the issues herein.

Petitioner also introduced Petitioner's Exhibits 1 through 22. Respondent

presented no evidence.

No transcript was provided and neither party submitted Proposed Findings of

Fact.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue herein, the Petitioner,

Hillsborough Community College, was a public institution of higher education,

with four campuses, two extension centers, three environmental centers, and

several other operations located in Hillsborough County, Florida. Respondent,

Professor Joseph P. Boyle, was a tenured faculty member on the instructional

staff located at the Dale Mabry campus. He has been with the College for more

than 20 years.

2. The College's Board of Trustees ordinarily meets once a month at the

Administrative Center on Davis Island. The meetings are open to the public, are

publicized at least a week in advance, and are based upon a written agenda.

Frequently, members of the public attend the meetings as do some faculty

members, administrative staff and the press. The College President and the

College Attorney also attend. At these meeting, the Board generally treats

policy matters, expenditures, approval of consultant contracts, and audit

reports, and there is also a provision for public comment. It is not at all

unusual or inappropriate for Board members to be contacted by students, faculty

members or the public about school matters.

3. Joaquin M. Campo, the President and Chairman of a Tampa engineering

firm, served as Board President from July, 1990 to July, 1991. He has been

contacted by outsiders about matters and when that happens, he tries, as best he

can, to follow up on the contact. It is his practice to respond to any personal

contact and to any signed letter which, he immediately forwards to the College

President for investigation. To the best of his recollection, Respondent had

previously called him about something into which he made inquiry and thereafter,

Respondent began to communicate with him regularly on a variety of matters.

This did not annoy him at all, and in each case, he tried to get the answer to

the Respondent's problem.

4. On August 27, 1990, Mr. Campo received a letter from the Respondent

complaining about comments purportedly made by President Paloumpis. If true,

these allegations would be considered serious. Professor Boyle followed the

first letter with phone calls and repeated additional letters, as a result of

which, Mr. Campo asked him to come up with some hard evidence in support of his

allegations. Campo made this request several times, and no such evidence was

ever forthcoming. Finally, Campo asked the College's Auditor, Mr. Watkins, who

reports directly to the Board of Trustees, to look into Boyle's allegations and

report what he found. Mr. Campo chose the Auditor so there would be no chance

of improper influence being asserted by anyone else.

5. At the same time, Mr. Campo also contacted the Respondent and asked him

to cooperate with Mr. Watkins. By letter dated September 13, 1990, he

reiterated that request in writing. At no time did Professor Boyle indicate he

would not cooperate with the Auditor. At the time he brought the Auditor in,

Mr. Campo had not formed any opinion as to Boyle's allegations.

6. Sometime later, in February, 1991, Mr. Campo received another letter

from Respondent complaining about the mechanics of selection for appointment of

the head of a department at the college. When he looked into these allegations,

he found them to be untrue and, in fact, that that faculty member ostensibly

appointed, Dr. Adams, had not been so appointed and had never applied for the

position. Mr. Campo so responded to Mr. Boyle in writing and thereafter

received another letter from the Respondent, dated February 22, 1991, which in a

disrespectful and berating manner, scolded Mr. Campo for his reply and demanded

an apology. Because this letter was incorrect and insulting, Mr. Campo advised

Professor Boyle of his feelings. As it appears, however, this faculty member,

Dr. Adams, was subsequently appointed Department head.

7. Thereafter, by letter dated March 13, 1991, Mr. Boyle requested Mr.

Campo resign as Chairman of the Board of trustees, citing alleged dereliction of

duty and referring to nonexistent secret letters. That same day, Mr. Campo

wrote to Professor Boyle and again asked him to come forward with proof to

support his allegations and set a deadline of March 22, 1991 for him to do so.

In writing this letter, Mr. Campo was trying to do his duty as Chairman to

either prove or disprove allegations of wrongdoing and put them to rest. He got

no response to the letter or any of the proof requested.

8. All during this time, Mr. Watkins also was having his difficulties in

dealing with Mr. Boyle regarding the investigation he had been requested to

undertake. Immediately after being asked by Mr. Campo to look into Boyle's

allegations, Watkins received a call from Mr. Boyle in which Boyle said Mr.

Campo had asked him to meet with Watkins and provide the information. Boyle

agreed to do so, but after several days, Watkins still had not again heard from

Boyle. Though Watkins tried to contact Boyle, he found Boyle had no home phone

and was only on campus at certain hours.

9. Mr. Watkins went to the Dale Mabry campus during Boyle's office hours.

When he arrived at Boyle's office, he found the door closed but he could hear

voices from within. He knocked twice and a voice called out, "Who are you and

what do you want?" When Watkins identified himself, Boyle opened the door,

finished the phone call he was engaged in, and spoke with him. Boyle said he

had not had time to collect the background information but that his letter to

Mr. Campo stated the facts. When Mr. Watkins pointed out these were not facts

but conclusions, Boyle agreed to get facts and said he would get back with

Watkins in one week. Their agreement called for Professor Boyle to come to

Watkins office with the information, but one day before the scheduled meeting,

Boyle called to postpone it. Nonetheless, he showed up the next day without any

independent proof, reasserted his position that his allegations spoke for

themselves, and questioned Mr. Watkins' authority to conduct the inquiry. When

Mr. Watkins explained his charter, Boyle dropped the subject.

10. Mr. Boyle never did come up with any supporting proof of his

allegations even though Mr. Watkins gave him several extensions of time. In

fact, Boyle failed to contact Mr. Watkins again and when Watkins tried to reach

him and couldn't, he again went to Boyle's office to see him. After Watkins

waited for a lengthy time during which Professor Boyle dealt with students,

Boyle finally stated he didn't have any time to deal with him. He stated he

had been told by an unnamed party not to talk with Watkins, and left.

11. Mr. Watkins reported to Mr. Campo both orally and in writing regarding

the results of his efforts. Mr. Campo advised Mr. Watkins not to pressure Boyle

too much because they really wanted the information. Finally, on November 6,

1990, Mr. Watkins again wrote to Professor Boyle asking for documentation

supporting his allegations. Mr. Boyle neither responded with the documents nor

requested more time, and Mr. Watkins has never received any documentation from

Boyle in support of his charges.

12. While Boyle cooperated at first, his attitude deteriorated to the

point he was arrogant and uncooperative, and considering Watkins was working at

the direction of the Chairman, even insubordinate. Finally, on November 19,

1990, Watkins wrote to Mr. Campo outlining the results of his efforts and the

problems he encountered dealing with Professor Boyle. Thereafter, he was

released from this investigation and has not, to this day, received any

supplemental information from Professor Boyle.

13. By letter dated March 27, 1991, Mr. Campo ordered Mr. Boyle to meet

with him on April 9, 1991 at 2:00 PM in the College Administrative Office on

Davis Island and to bring whatever support he had for the charges he had made.

Mr. Campo made it clear this was not an optional meeting, and the Respondent's

failure to appear would be considered to be insubordination. Nonetheless,

Professor Boyle did not appear for the meeting nor did he either call in advance

to seek a postponement or provide a subsequent explanation for his absence.

14. On April 11, 1991, Mr. Campo again wrote to Mr. Boyle, pointing out

the failure to appear on April 9 was insubordination, asking for an explanation

in writing, and directing him to appear in person at the Administrative Office

on Davis Island on April 22, 1991 at 2:00 PM. This letter also advised Boyle

that if he could not make it, he was to advise Campo by phone no later than noon

on April 22. Boyle neither showed up nor explained. April 9, 19, and 22, 1991

were work days when Professor Boyle could be expected to perform his duties. As

Chairman of the College's Board of Trustees, Mr. Campo had the authority to

direct any college employee to meet with him. His directions to Boyle to meet

with him on those days were, therefore, lawful orders.

15. Mr. Campo was present at the time and place scheduled for the

meetings which he directed Professor Boyle to attend. To this day, Boyle has

not explained his failure to appear as directed. Campo sought those meetings

with Professor Boyle to get the facts surrounding the allegations Boyle had

made. They were not designed to create a situation for which disciplinary

action to get rid of Professor Boyle could be initiated.

16. As a result of Professor Boyle's failure to appear as directed, Mr.

Campo asked President Paloumpis to look into the matter to see if any action was

appropriate. As a result, in June, 1991, Dr. Paloumpis recommended to the Board

of Trustees that action to remove Boyle for insubordination be initiated. Mr.

Campo agreed. At the open Board meeting where this matter was addressed, the

Board, pursuant to discussion of the matter which had been published in advance

on the regular publicized agenda, unanimously approved the recommendation to

dismiss Professor Boyle. The Board meeting was publicized in advance along with

the agenda, and Professor Boyle had the opportunity to appear before the Board

to defend or explain his actions. He failed to do so. There is no evidence of

any attempt to discharge Boyle because of his outspokenness.

17. When Dr. Paloumpis received the copy of Professor Boyle's letter of

complaint which Mr. Campo sent to him, he, also, wanted the matter looked into.

At no time did he attempt to impede Watkins' investigation or, in fact, to speak

with Watkins about it. As an administrator, he has been accused by others

before of making bad decisions and of being unfair. He never takes such

accusations personally, nor did he act on this allegation.

18. His initiation of disciplinary action against Professor Boyle was

taken at Mr. Campo's suggestion because of Boyle's insubordination. He reviewed

the investigation and the succeeding failures by Boyle to meet with Mr. Campo

and satisfied himself that grounds for discipline existed. Only then did he set

the wheels in motion.

19. On April 30, 1991, Dr. Paloumpis wrote to professor Boyle directing

him to come to Paloumpis' office at 8:30 AM on May 3, 1991, normal business

hours, to provide a doctor's certificate because Professor Boyle had a habit of

calling in sick or having someone do it for him. Under the terms of the

contract between the College and the union, the College has the right to have

the faculty member submit to an independent medical examination under certain

conditions. He also directed Boyle to contact his department head, Dr. Adams,

by May 3, 1991, to set up the appointment with the doctor. Professor Boyle did

not show up at either place on May 3, nor did he contact Dr. Paloumpis or anyone

on his staff about it.

20. Thereafter, on May 6, 1991, Dr. Paloumpis wrote to Professor Boyle

asking for an explanation of his failure to appear as directed by him and by Mr.

Campo. In this letter, he also gave Mr. Boyle an order to contact Ms. Bone, an

executive assistant in Dr. Paloumpis' office to set up a time, at Professor

Boyle's convenience, to meet with Paloumpis at Paloumpis' office. He also

warned Professor Boyle that if he failed to appear, he, Paloumpis would

recommend Dr. Boyle's suspension as a disciplinary action. Professor Boyle has

never responded to this letter or complied with the directions therein.

21. Dr. Paloumpis thereafter prepared the Petition for Dismissal and

Explanation of Rights form and tried to serve them on the professor by regular

US mail, by certified mail, and by process server. That copy sent by regular US

mail was not returned undelivered, but the copy sent by certified mail was not

accepted. The process server was able to effect service of the Petition on

Professor Boyle, at his home, at 1:20 PM on June 28, 1991.

22. It must also be noted that some of the letters to Professor Boyle

which requested meeting with him were, in addition to being sent by mail,

included in the envelope with his individual pay checks. When these checks were

cashed, it was clear indication that Professor Boyle had received the meeting

notices. None of the letters, all of which were also sent by US mail, were ever

returned undelivered except for the copy of the Petition sent by certified mail.

23. In addition to all the above, in the Fall of 1991, Dr. Paloumpis

learned that several students had complained about Professor Boyle's behavior.

Paloumpis received a call from the Dale Mabry campus that complaints had been

received which had been put in writing and referred to the vice president in

charge of that campus. When he asked what was going on, the complaints were

referred to him.

24. As a result of these complaints, Professor Boyle's supervisors

recommended to Dr. Paloumpis that Boyle be placed on administrative leave

because the pattern and manner of his relationship with his students indicated

it would be better were he out of the classroom. Dr. Paloumpis' primary concern

was for the students, many of whom wanted to drop the course they were taking

from Professor Boyle. To do so, however, would be, for many of them, a

financial and academic harship. Paloumpis wanted to avoid this, and as a

result, Professor Boyle was relieved of his teaching duties and an adjunct

professor brought in to teach the remainder of the course. This solved the

students' problems and the complaints stopped.

25. As a result of this reported aberrant classroom behavior by Professor

Boyle, Dr. Paloumpis prepared the additional charges which were incorporated in

the Amended Petition to Dismiss which he also submitted to the Board of

Trustees. By memo dated September 23, 1991, Dr. Paloumpis notified Professor

Boyle he was being placed on administrative leave with pay and that the new

charges were being added to the Petition. At the same time, he notified

Professor Boyle of his right to attend the Board meeting at which the additional

charges were to be discussed. The charges were made an agenda item which was

published and distributed.

26. Professor Boyle did not appear at the Board meeting but was

represented by counsel, Mr. Merkle. The Board heard the evidence relating to

the additional charge and the presentation by Mr. Merkle on behalf of the

professor. It nonetheless voted unanimously to add the new charge to the

Petition for Dismissal.

27. At no time has Professor Boyle ever given Dr. Paloumpis or any

representative of the College any explanation of his allegedly aberrant

classroom behavior which prompted the additional charge, save the presentation

by Mr. Merkle at the Board meeting.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

29. In both its original and amended Petition for Dismissal, the

Petitioner seeks the dismissal of a tenured professor, Respondent, from

employment with the College for cause. In the original Petition, the cause is

alleged gross insubordination, and it the amendment, the cause is the alleged

failure by the Respondent to live up to the instructional performance

requirements of the agreement between the College and the Union.

30. Hillsborough Community College is a public entity and a public

employer. Under the provision of Section 440.209, Florida Statutes, a public

employer has the right to direct its employees, to take disciplinary action for

proper cause, and to relieve its employees from duty because of lack of work or

other legitimate reasons. This is reiterated in paragraph 6.16 J of the

Union/College agreement.

31. The state Department of Education, consistent with that authority,

promulgated rules for the governance of faculty members teaching at the

community colleges throughout this state. At Rule 6A-14.0411(6), F.A.C., the

Department provided that an employee of a community college may be suspended or

dismissed by the Board upon the recommendation of the President at any time

during the school year, after opportunity to be heard at public hearing,

provided the charges supporting the discipline are based on immorality,

misconduct in office, incompetency, gross insubordination, willful neglect of

duty, drunkenness or conviction of a crime involving moral turpitude.

32. This hearing was not for the purpose of determining the truth of

Professor Boyle's accusations which initiated the procedure and no determination

is made here of that issue. The purpose of this action is to determine whether,

aliunde his allegations regarding Dr. Paloumpis and the appointment process,

having made such allegations and having been requested to provide proof in

support thereof, his continuing failure to do so, his abrasive and abusive

communications with the Chairman, the President and the Auditor, and his

adamant failure to appear at meeting to which his presence was directed by

appropriate authority constitutes the gross insubordination called for in the

Rule. Clearly it does.

33. Respondent made serious allegations against persons in authority in

the administration of the college. These allegations were made to the Chairman

of the Board of Trustees whose responsibility it was to investigate and take

appropriate corrective action if necessary. Allegations alone, however, are not

proof, and upon receipt of those allegations, the Chairman sought from the

professor evidence to support those allegations. When that evidence was not

forthcoming, he properly appointed the College's auditor to conduct his

independent investigation into the allegations and solicited from Respondent his

cooperation in the investigation of those allegations he had made. Again, the

support was not forthcoming and in fact was rejected in such a manner,

considering the source of the request, a fact which was communicated to

Respondent, as clearly constituted contemptuous insubordination. Even when

informed by the President that his continued failure to cooperate in the

investigation by failing to appear at several meetings to be set up at

Respondent's convenience would constitute insubordination, Respondent continued

to ignore all efforts at a rational resolution of his complaints. This can be

described as nothing other than gross insubordination. This gross

insubordination is of a nature which is clearly detrimental to the effective

accomplishment of the College's educational purpose and which cannot be

condoned.

34. The misconduct described in the Amended Petition, serving as

additional bases for dismissal, was established solely by hearsay evidence.

Hearsay evidence cannot, by itself, support a finding of fact. Consequently,

while there are numerous reports of misconduct, none of the reporters had first

hand knowledge of the alleged misconduct. As such, this evidence cannot form

the basis for discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore, recommended that Professor Joseph P. Boyle be discharged from

employment as a tenured faculty member at Hillsborough Community College for

gross insubordination.

RECOMMENDED this 19th day of March, 1993, in Tallahassee, Florida.

___________________________________

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 1993.

COPIES FURNISHED:

John M. Breckenridge, Jr., Esquire

2502 Rocky Point Road, Suite 225

Tampa, Florida 33607

Professor Joseph P. Boyle

P.O. Box 327

Champlain, New York 12919

Robert W. Merkle, Esquire (Courtesy Copy)

Merkle & Magri, P.A.

750 West Courtney Campbell Causeway, #1120

Tampa, Florida 33607

Martha K. Covington

College Attorney

Hillsborough Community College

P. O. Box 31127

Tampa, Florida 33631-3127

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency which will issue the Final Order in this case.