STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSANNE F. PENNYPACKER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1122

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on July 15, 1976, at Gainesville, Florida.

APPEARANCES

For Petitioner: Larry G. Turner, Esquire

GOLDIN, TURNER & CATES

Post Office Box 1251 Gainesville, Florida 32602

For Respondent: Thomas S. Biggs, Jr., Esquire

Associate University Attorney University of Florida

207 Tigert Hall Gainesville, Florida 32611

By complaint filed April 1, 1976, Petitioner contests her proposed termination as Director of the Personalized Learning Center at the University of Florida, Gainesville, Florida as of June 30, 1976. As grounds therefor Petitioner contends that her contract of employment was for the two years 1975-

76 and 1976-77. Respondent takes the position that Ms. Pennypacker was hired only for the fiscal year 1975-76 commencing July 1, 1975 and terminating June 30, 1976. The sole factual issue for determination is the contract period. During the course of the hearing rulings on the admissibility of certain exhibits were deferred. Those exhibits are herewith admitted into evidence.

FINDINGS OF FACT

1. Petitioner and her husband, Dr. Henry S. Pennypacker developed a precision teaching process designed to facilitate

   learning by the students exposed to this process. It was first used at the University of Florida in 1972 under contract between the corporation formed by the Pennypackers, viz, Precision Teaching, Inc. of Florida, and the University of Florida Athletic Association. This contract with the Athletic Association continued through fiscal year 1973-74.

2. By 1974 the system had acquired wider acclaim and the University of Florida decided to try this process on entering students who were below the academic average. Since the project was expected to grow it was decided that Susanne Pennypacker would be employed full time to manage the activities of Precision Teaching, Inc. of Florida. The University of Florida entered into a contract with Precision Teaching, Inc. to conduct the program in fiscal year 1974-75 and Petitioner served as Director on the staff of, and was paid by, Precision Teaching, Inc.

   
   

3. During this contract period the University determined that it would prefer to operate the program as a university project rather than under a contractual arrangement with Precision Teaching, Inc. Negotiations were conducted with the Pennypackers and it was agreed that Petitioner would be employed by the University to run the project which would be called the Personalized Learning Center.

   
   

4. Several letters passed between Dr. Webb and Petitioner and her husband as the negotiations respecting the budget for fiscal year 1975-76 progressed. On June 3, 1974 Dr. Webb submitted a proposed budget for the fiscal year commencing July 1, 1975 to the Pennypackers. A copy of this letter was not offered into evidence.

   
   

5. By letter of June 19, 1975 the Pennypackers reminded Dr. Webb that the contract with Precision Teaching would expire on June 30, 1975 and a management contract to continue the opera-tion of the Personalized Learning Center had not been executed. It was further stated that they had agreed to operate the center at the budget figure presented on June 3, 1975, but it appears that the University was unable to commit $7,000 of the proposed far amount. Dr. Webb was advised that the Pennypackers' continued participation in the project was dependent upon written assurance that the shorted funds become available by January 1, 1976, and that "we will regard failure to provide (at least written assurance) the full amount requested and agreed to as a signal that our services are not longer desired and, accordingly, will, with great reluctance, terminate completely our association with the center on July 1, 1975."

   
   

6. By letter dated June 30, 1975 (Exhibit 15) Dr. Webb submitted the budget for the operation of the Center for the FY 75-76 to Dr. Pennypacker. Therein the full amount for salaries contained in Petitioner's proposed budget of June 5, 1975 (Exhibit 13) was approved.

   
   

7. No formal contract was entered into between Ms. Penny-packer and the University, but the discussions were memorialized in a letter from the University representative, Dr. Jeanne Webb, to the Pennypackers dated June 30, 1975 (Exhibit 4). Petitioner became an employee of the University on July 1, 1975. The terms and conditions of this employment are contained in the University' s Notice of Appointment (Exhibit 18) dated November 25, 1975 which was executed by Petitioner on December 15, 1975.

   
   

8. In late November or early December, 1975 Petitioner was notified that her contract with the University would not be extended beyond June 30, 1976. Within ten days of receipt of that letter Petitioner requested reasons for not being reappointed for the forthcoming year. Neither of these letters was offered into evidence.

   
   

9. Response to Petitioner's request for reasons were contained in Dr. Webb's letter of December 17, 1975 (Exhibit 16). Although reasons indicating dissatisfaction with Petitioner's performance as Director of the Personalized

   Learning Center are contained in Exhibit 16, Respondent took the position that satisfactory performance of duty by Petitioner was not an issue in this case, and offered no evidence to support the bare allegations contained in Exhibit 16. Upon completion of Petitioner's case Respondent submitted a motion for directed verdict, and an argument on said motion. Petitioner replied thereto and thereafter Respondent rested without presenting evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The issues here involved are limited. No tenure is involved and no rule or statute was cited which would give Petitioner property rights in the position in which employed beyond the terms of the contract of employment. A faculty employee has no property rights in such position entitled to the due process protection of the 14th amendment of the U.S. Constitution beyond the term of the contract of employment. Board of Regents of State Colleges v. Roth, 92 S. Ct. 2701 (1972).

    
    

11. No charges were made against Petitioner that might seriously damage her standing and associations in the community or that would place her good name, honor, or integrity at stake.

    
    

12. Furthermore not a scintilla of evidence was presented, nor was any suggestion made, that Petitioner's employment was terminated by reason of her exercise of any right granted by the Constitutions of Florida or of the United States.

    
    

13. Therefore, the sole issue presented was whether or not Petitioner's employment was terminated prior to the expiration of the term of employment for which she was hired.

    
    

14. Petitioner takes the position that the negotiations leading to her employment, and the letter by which she was notified of her employment gave her an expectancy of employment for a two-year period and that she could not be deprived of this employment except for cause.

    
    

15. The facts do not support this position. The contracts entered into by Precision Teaching, Inc. were all one-year contracts. Petitioner was employed to perform the same services for the University as she had performed the previous year when the University contracted with Precision Teaching. The letter of June 30, 1975 (Exhibit 4), on which Petitioner places her claim of expectancy of employment for two years, opens with:

    
    

    "I am delighted that you agreed to assume the responsibility for the personalized learning center for another year.

    
    

16. The notice of appointment (Exhibit 18) which admittedly was submitted by the University and accepted by Petitioner concurrently, or nearly so, with notification that Petitioner's contract would not be renewed for the ensuing year was clearly a one-year contract. While this exhibit could be considered self-serving because of the tardiness of its preparation, it is nevertheless a document that is required by University rules and regulations to be prepared for such appointments. No evidence was submitted that this notice of appointment did not accurately reflect the conditions of employment.

17. From the foregoing it is concluded that Susanne F. Pennypacker was employed by the University of Florida on a one-year contract which expired June 30, 1976, and that she was notified on or before December 15, 1975 that this contract would not be renewed. Under the terms of the contract Petitioner had no property rights to continued employment beyond the expiration date of this contract. It is therefore,

RECOMMENDED that the petition be dismissed.

DONE and ENTERED this 26th day of October, 1976, in Tallahassee, Florida.

COPIES FURNISHED:

Larry G. Turner, Esquire Post Office. Box 1251 Gainesville, Florida 32602

Thomas S. Biggs, Jr., Esquire University of Florida

207 Tigert Hall Gainesville, Florida 32611

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1976.

Docket for Case No: 76-001122

Orders for Case No: 76-001122