STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY ROSNER, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1176

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held beginning at 10:00 A.M., November 25, 1975, and continuing on December 1, 1975, in Room 135 and in the Dean's Conference Room of the Fine Arts Building, University of South Florida, Tampa, Florida, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. William M. Holland, Jr.

Suite 304, First National Bank Building

215 Madison Street Tampa, Florida 33602

For Respondent: Mr. D. Frank Winkles &

Mr. William E. Sizemore of Shackleford, Farrior, Stalling & Evans Post Office Box 3324

Tampa, Florida 33601

WITNESSES

For Petitioner: Dr. Maurice O'Donnell

Associate professor, Department of Political Science, University of South Florida

Dr. John M. Sidor, Jr.

Associate Professor, Department of Political Science, University

of South Florida

Dr. Robert Lewis Bowman, Chairman, Department of Political Science, University of South Florida

Dr. Irving Dear, Professor, English Department, University of South Florida

Mrs. Harriett Deer, Associate Professor English Department, University of

South Florida

Dr. Jeffrey Rosner, Petitioner

Dr. Travis J. Northcutt, Jr., Dean Corllege of Social and Behavioral

Sciences, University of South Florida

Dr. Carl D. Riggs, Vice-President for Academic Affairs, University of South Florida

For Respondent: None

ISSUES

The issues presented for decision in the above-styled matter are as follows:

1. Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment?

   
   

2. If so, was petitioner wrongfully denied tenure?

   
   

3. Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975?

4 Was petitioner wrongfully terminated before he received a due process hearing?

FINDINGS OF FACT

Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found:

1. Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75.

   
   

2. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching.

   
   

3. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service.

   Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement.

   
   

4. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure.

   
   

5. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University.

   
   

6. The above procedure was followed in Dr. Rosner's case and the following transpired:

   
   

   1. The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure.

      
      

   2. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured

      - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality.

      
      

   3. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department.

   4. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period."

      
      

   5. The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman.

      
      

   6. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied.

      
      

7. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons.

   
   

8. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974.

   
   

9. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975.

   
   

10. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee.

    
    

11. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3).

    
    

12. On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference.

13. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating:

    
    

    "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided."

    Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired

    according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."

    
    

    CONCLUSIONS OF LAW

    
    

14. The first issue presented for decision is whether or not the status of tenure may be denied, as opposed to being granted or deferred, a faculty member in his fifth year of continuous employment.

    
    

15. It is the petitioner's contention that a faculty member in his fifth year of employment may be either granted tenure or that the tenure decision may be postponed or deferred. If postponed, the faculty member is to be reconsidered the following year and, if he is not then granted tenure, his employment shall terminate at the end of the following year - the conclusion of the seventh year of continuous employment. In support of this position, petitioner relies upon the language contained in the rules and regulations of the Department of Education, Board of Regents, Chapter 6C-5 of the Florida Administrative Code, entitled "systemwide personnel matters." Specifically, petitioner points to Rules 6C-5.06(3)(d); 6C-5.06(4)(a) & (b) and 6C- 5.07(1)(a)(vi).

    
    

16. Rule 6C-5.06(3)(d) provides that eligibility for tenure shall normally begin after five years of service, after which time an individual may be nominated for tenure in accordance with established procedures. Such procedures are set forth in Rule 6C-5.06(4). Subsection (a) of that rule provides that at the time one becomes eligible for tenure, "the appropriate department or division officer. . .shall nominate him for that status or postpone such nomination and, in either case, shall inform him in writing." Subsection (b) addresses itself to the channels of authority through which the nomination travels. Rule 6C-5.07(1)(a)(vi) reads as follows:

    
    

    "The employment of a faculty member in a tenure-earning position who has not been granted tenure at the close of the sixth year of continuous employment shall not be renewed. The faculty member shall be given notice of the additional terminal employment provided for above."

17. A reading of only the rules cited above would tend to support the petitioner's contention that the only alternatives available at the time a faculty member becomes eligible for tenure are to grant or to postpone. However, such an interpretation ignores both reality and the status of a non- tenured faculty member. If the position taken by petitioner were upheld, it would mean that a faculty member who remains on campus for five years is

    automatically assured employment for two more years, regardless of his abilities or level of competence, unless he were terminated for cause by the preferment of charges. The undersigned does not feel that this is the intention or meaning of the rules in question.

    
    

18. The difference between a tenured and a non-tenured faculty appointment is that the president or his designee may choose not to renew the employment of a non-tenured faculty member. While notice of nonreappointment within specified time periods must be afforded, there are no specified reasons listed for such nonreappointment. The only restriction upon the decision not to renew is that it not be based upon constitutionally impermissible grounds. F.A.C. Rule 6C- 5.07(1)(a)(i). The process of evaluating a faculty member and the areas of performance to be evaluated are much the same for purposes of reaching a decision on tenure, promotion, salary and retention or non-renewal for non- tenured faculty members. Thus, if an evaluation is performed and that evaluation leads the decision-makers to the conclusion that the faculty member in question is not worthy of reappointment or tenure status, or both, it would be fruitless to render a decision that the tenure decision be postponed or deferred. An annual contract is just that - a contract which expires by its own terms absent renewal. The word "postpone" means to defer or to hold back to a later time. It would be senseless to use such terminology regarding tenure when the decision has been made not to renew one's employment contract. It should also be pointed out that every person involved in the present controversy had the option of voting to grant, deny or defer tenure. The undersigned concludes that the option to deny tenure does not result in noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or University regulations. Nor does the undersigned feel that the word "denial" constitutes any more of a blemish upon the record of the involved faculty member than the word "deferral" accompanied by a notice of non-renewal. The results are the same.

    
    

19. As to the six-year rule set forth in 6C-5.07(1)(a)(vi), the undersigned feels that it is further evidence against petitioner's position. It does not mean that every non-tenured faculty member is guaranteed employment for a period of seven years. That rule merely states that the employment of one who has not been granted tenure at the close of the sixth year shall not be renewed. It would be ludicrous to postpone or defer the tenure decision in the sixth year in the face of such a rule. If one cannot be re-employed, the tenure decision has been made; to wit: denial. The fact that this decision in petitioner's case was made during the fifth year of employment, rather than the sixth, does not violate Rule 6C-5.07(1)(a)(vi), and is consistent both with the rule that a faculty member becomes eligible for tenure after five years of employment and with the whole concept of annual contracts for non-tenured faculty members.

    
    

20. Finally, the very rules and regulations in question speak of the procedures afforded a grievant upon the "denial of tenure" (Rule 6C-5.08(4)(a)) or the "failure or refusal of the administration to grant him tenure" (Rule 6C- 5.08(4)(a)(ii)). Thus, petitioner's contention that there cannot be a "denial" of tenure is without merit.

21. This then brings us to the questions of whether petitioner was wrongfully denied tenure and/or the renewal of his employment contract. In this case, the burden of proof is upon the petitioner to show that his employment contract was not renewed because of constitutionally impermissible grounds and/or that tenure was denied based on such grounds or as a result of noncompliance with Board or University standards, criteria or procedures. It is the conclusion of the Hearing Officer that the petitioner has failed in his burden of proving either wrongful denial of tenure and/or wrongful decision not to renew his employment contract.

    
    

22. Tenure is defined as "that condition attained by the faculty member through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society." Rule 6C-5.06 (1)(a). Although the definition of "highly competent" is necessarily a subjective one, it certainly does not mean below average. The evidence as a whole indicates that petitioner's overall performance in the areas evaluated was below average. This was the consensus of his students as to teaching effectiveness, and of his colleagues and superiors as to his overall performance in all three areas. In fact, this was the stated reason for both the decisions to deny tenure and to not renew petitioner' employment contract. There was absolutely no evidence that petitioner is or was "highly competent" in the areas of teaching, research or service. This is sufficient justification for denying tenure. Petitioner has failed to demonstrate that the decision to terminate his employment was based upon constitutionally impermissible grounds. And, there is no contention that the proper notice of non-renewal was not given. Hence, there is no merit to the contentions of wrongdoing in either the tenure decision or the non- renewal decision.

    
    

23. Finally, petitioner contends that he was wrongfully terminated before his due process hearing was held. This contention likewise has no merit. Here, petitioner was notified in March of 1974 that his contract of employment would end on June 19, 1975 and would not be renewed. The very purpose of the years' notice requirement (Rule 6C-5.07(1)(a)(i) is to afford a grievant the time and opportunity to either seek review or to obtain other employment before his contract expires. The fifteen month notice given in this case was certainly adequate for those purposes. Petitioner's complaint was not filed with the University until late in May of 1975, some fourteen months after he received notice of both non-renewal and denial of tenure. He thus has no grounds to complain that his hearing followed, rather than preceded, his termination.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful.

Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Building

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.

ENDNOTE

1/ In the area of research, petitioner ranked eleventh; in service he ranked fifteenth and in overall performance he ranked fourteenth.

COPIES FURNISHED:

Mr. William Holland, Jr., Esquire

Suite 304, First National Bank Building

215 Madison Street Tampa, Florida 3602

Mr. Frank Winkles, Esquire &

Mr. William E. Sizemore, Esquire of Shackleford, Farrior, Stallings, & Evans

Post Office Box 3324 Tampa, Florida 33601

Dr. Cecil Mackey University President ADM 241

University of South Florida Tampa, Florida 33620

Docket for Case No: 75-001176

Orders for Case No: 75-001176