vs. ) CASE NO. 80-703
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on June 27, 1980, at Lake City, Florida.
For Petitioner: Frank M. Gafford, Esquire
For Respondent: Julian E. Collins, Esquire
Whether Respondent, Steve Adams, instructor at Lake City Community College, was guilty of insubordination toward the Dean of the College Parallel Division, and if so, whether a Memorandum to such effect should be placed in Adams' personnel file.
That Steve Adams' conduct on December 13, 1979, constituted insubordination toward Dean Parnell, and that the Memorandum of Dean Parnell, of even date, describing the offending incident be placed in Adams' official personnel file.
On March 28, 1980, Respondent Steve Adams filed a Petition for Formal Proceedings with the Petitioner, Lake City Community College (College) challenging the basis of a derogatory memorandum placed in Adams' personnel file. On April 9, 1980, the College forwarded Adams' petition for hearing to the Division of Administrative Hearings and asked for the assignment of a Hearing Officer.
Subsequently, the College moved to dismiss and strike the Petition on grounds that certain relief requested by Adams was not authorized by law. By
Order dated May 5, 1980, the College's Motion to Dismiss was denied, while the Motion to Strike was granted, insofar as the Petition sought the award of attorney's fees.
By Notice dated May 7, 1980, final hearing in this case was scheduled for June 27, 1980. At hearing, the College called the following witnesses: Steve Adams, a microbiology instructor at the College; Dean Walter A. Parnell, Dean of the College Parallel Division; Dennis M. Rigsby, instructor and Chairman of the College Science Department, and Karen S. Belcher, a College life sciences instructor, and former head of the Science Department. Respondent Steve Adams testified in his own behalf and called Joseph F. Sedmera, a College instructor. Petitioner's Exhibits 4 through 9, and Respondent's Exhibit 1 were offered and received into evidence. Petitioner's objection to Respondent's Exhibit 2 (a printed transcript of a "60 Minutes" television program) was sustained on grounds of competency. Within ten days after the close of hearing, each party filed proposed findings of fact.
Upon consideration of the documentary and testimonial evidence submitted, including the demeanor of the witnesses, the following facts are determined.
Steve Adams is a microbiology instructor in the Science Department of Lake City Community College. The introductory course which he teaches consists of laboratory work and lectures. During his lectures, his practice is to use cultures of live microorganisms for demonstration purposes. Adams believes that use of live cultures during his lectures is helpful in teaching various microbiological phenomenon, such as "contact inhibition" and the different surficial qualities of microorganism cultures. (Testimony of Adams)
Walter E. Parnell, Jr., is the Dean of the College Parallel Division, Lake City Community College. His responsibilities include supervision, through the various Department heads, of all College faculty members in that Division. The instructors and academic programs of the Science Department are subject to the Dean's supervisory authority. (Testimony of Parnell)
It has been an established practice of Dean Parnell to occasionally place memoranda commemorating a particular action or achievement in the personnel file of the appropriate instructor. These memoranda may be favorable and beneficial, or unfavorable and adverse to the particular instructor involved. However, the power to take disciplinary action against a college instructor falls within the exclusive province of the College Board of Trustees; Dean Parnell's function in such cases consists of recommending appropriate disciplinary action to the Board. (Testimony of Parnell)
There are no published policies or rules which establish standards of conduct and behavior or define the various grounds for disciplinary action against faculty members at Lake City Community College. Neither are there any written policies which authorize or set out grounds for placing memoranda in instructors' personnel files by a supervising Dean. For the most part, the College instructors learn of such practice, if at all, through individual experience. (Testimony of Parnell, Smith, Sedmera, Rigsby)
During the winter of 1979, the College microbiology course taught by Adams began experiencing a significant increase in student enrollment. In an effort to resolve the increased enrollment problem, on December 10, 1979, Dean Parnell and Steve Adams discussed the situation and agreed to add an additional
lecture course and laboratory section-- each class to accommodate a maximum of fourteen (14) people. By memorandum to Dean Parnell dated December 11, 1979, Adams confirmed his agreement to teaching the additional classes, conditioned upon the number of students attending his current lectures remaining at twenty- two (22) and twenty-three (23), respectively. He cautioned the Dean:
". . . When I see 23 or more people in the first lecture section and 24 or more people in the second, those people will be sent to your [Dean Parnell's] office to be reassigned to the newly opened lecture section or wherever you can put them so
that the original class size limita- tions are met. I want it perfectly understood that the original limita- tions must be maintained and if
they aren't its going to be your
job not mine to get them straightened out. . . . If you wish to have additional openings in the spring
of 1981 from the original plans of this school year the provisions for them should be started now and not be a last minute thing as this has been. The labs can contain only 15 people each and 4 labs x 15 people
means 60 people total in microbiology.
The 60 people will have to be divided up into 3 lecture sections of 20 each, since neither the room nor I will tolerate 30 in a lecture section." (Testimony of Parnell, Petitioner, Exhibit No. 5)
Dean Parnell was somewhat taken back by the tone of Adams' December 11, 1979, memorandum, and felt it was unwarranted and unduly strident. On December 13, 1979, the Dean drafted what he considered a mild response to Adams' memorandum. Addressing the question of lecture section size, the memorandum states:
". . . I understand the problem created by space limitation on lecture section size, but should a situation arise whereby the space limitation factor is removed, we need to discuss what further factors can legitimately limit sec-
tion size. In the future we can con- sider more efficient use of your energies by considering the possibility of perhaps a single large lecture sec- tion with multiple labs. This does not preclude fair remuneration for this additional load. We need to consider all alternatives at an early date since we know, as the situation now looks, that we will have increased loads in
lab courses for next year." (Testimony of Parnell, Petitioner's Exhibit 6)
On December 13, 1979, Dean Parnell, accompanied by Dennis Rigsby, the head of the Science Department, met with Adams in the latter's office for the purpose of delivering the December 13, 1979, memorandum and discussing the size of Adams' lecture section for the 1980 spring semester. After handing Adams the December 13, 1979, memorandum, Dean Parnell told Adams that they would have to sit down and find a way to expand Adams' microbiology lecture section, and suggested the possibility of holding the lectures in the larger Galloway Auditorium. Adams replied loudly, and emphatically:
"Hell no, I won't do it, and
I'll fight you all the way if you try to make me "
or words to that effect. Adams warned that if he was required to run a large demonstration lecture in Galloway Auditorium, he would ask for an investigation by the National Institute of Health, Department of Public Safety, and the Department of Health and Rehabilitative Services. (Testimony of Parnell, Adams, Rigsby, Petitioner's Exhibit 6)
There was conflicting testimony as to whether, during this conversation, Adams cited "safety" as the reason why he would "fight" relocating the microbiology lecture to Galloway Auditorium. It is clear, however, that no specific safety hazards were identified at that time. While Adams recalls that he mentioned that Galloway Auditorium would be, generally, unsafe, both Parnell and Rigsby testified otherwise, and their testimony on this point is considered more creditable. (Testimony of Adams, Parnell, Rigsby, Petitioner's Exhibits 6, 9)
The people present during this conversation differ as to whether or not Dean Parnell's request to Adams was considered a direct "order." While Rigsby construed it as an "order," Adams and Parnell did not. (Testimony of Parnell, Adams and Rigsby)
Subsequent to that conversation, Adams expressed his belief that the use of live cultures of microorganisms are necessary to effectively conduct microbiology lectures, and that, for various reasons, such live cultures cannot safely be used in Galloway Auditorium. However, based on the opinion of Karen
F. Belcher, former head of the Science Department and a College instructor in life sciences for approximately fifteen (15) years, it is determined that basic microbiology lectures can be adequately taught without using live cultures of microorganisms. Although disputed by Adams, she also opined that non-pathogenic live organisms could safely be used during microbiology lectures in Galloway Auditorium. Based on Ms. Belcher's experience as an instructor and former Science Department head, and her professional and detached demeanor, her opinion is persuasive. (Testimony of Adams, Belcher)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979).
Here, the College seeks to place in Adams' official personnel file a written memorandum which: (1) describes, in detail, certain conduct by Adams
on December 13, 1979; and, (2) concludes that such conduct "constitutes an act of insubordination."
The College has not contended that this action against Adams does not affect his substantial interests; indeed, its granting of the requested hearing under Section 120.57(1) is implicit recognition that Adams' interests are adversely affected by placing the contested memorandum in his personnel file.
No Section 120.57 hearing was afforded Adams prior to placing the offending memorandum in his official personnel file. The College action, then, is "free-form," and, due to a timely request for a Section 120.57 hearing, is not yet final agency action. Capeletti Bros. v. State of Florida Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). The purpose of this Section 120.57(1) proceeding is to formulate final agency action, not to review action taken earlier and preliminarily. See, McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).
The College contends that its action against Adams is not a disciplinary action, but simply the placing of an admittedly adverse memorandum in his official personnel file.
In the absence of College rules or policies which contain standards and procedures for taking disciplinary action against faculty members, we must look to the purpose and effect of the College's action.
It is concluded that the placing of an adverse and derogatory memorandum, such as the one at issue here, in the official file of an instructor by a supervisory authority, both disciplines and admonishes such instructor, and is equivalent to the issuance of a written reprimand. See: Merriam-Webster New International Dictionary (3rd ed. 1966) definition of "discipline," "reprimand," and "reproof." The College's argument to the contrary is without merit.
Thus characterized, the placing of this adverse memorandum in Adams' personnel file can only be authorized by the Board of Trustees of Lake City Community College.
The central question is whether Adams' conduct, as described above, constitutes "insubordination," and warrants the placing of an adverse memorandum (equivalent to a written reprimand) in Adams' personnel file.
"Insubordination" has been defined:
". . . as a disobedience of orders, infraction of rules, or a generally disaffected attitude toward authority.
It is generally synonymous with contumacious, which indicates persistent, willful or
overt defiance of authority and obedience, sometimes contemptuous of authority."
Muldrow v. Board of Public Instruction of Duval County, 189 So.2d 415 (Fla. 1st DCA 1966); Accord, McAllister v. Florida Career Service Commission, 383 So.2d 941 (Fla. 1st DCA 1980). Although the evidence is conflicting on whether Dean Parnell's request to Adams was a direct "order," Adams' response to Parnell's request can be fairly described as willful or overt defiance of authority-- indeed, a display contemptuous of the authority of Dean Parnell. Adams refused to obey the Dean's request, viz., to meet and discuss the possibility of relocating the microbiology lecture to Galloway Auditorium.
Discourse between College administrators and faculty does not, ordinarily, involve the giving of unequivocal direct "orders." However, the absence of such unequivocal "orders" does not obviate the requirement that a faculty member recognize and defer to lawful authority. In City of Bartow v. Public Employees Relations Commission, 382 So.2d 311, 314 (Fla. 2nd DCA 1979), the Court noted that there was conflicting testimony in that case as to whether the individual fireman (who was terminated on grounds of insubordination) disobeyed a direct order. The Court concluded that "[t]he clear implication of Ott's [the discharged employee] statement was that, even if Morgan [superior authority] ordered him to report to the fire, he would not obey the order." Id. Similarly, in the instant case, if Dean Parnell had more explicitly conveyed or reiterated his request to Adams to meet and discuss the possibility of relocating the microbiology lecture to Galloway Auditorium, the clear implication of Adams' words and demeanor supports a conclusion that such a request would not have been obeyed.
It is concluded, therefore, that Adams' actions described above constitute "insubordination" toward the lawful authority of Dean Parnell. Furthermore, it is concluded that the memorandum of Dean Parnell, dated December 13, 1979, fairly and accurately describes the actions of Steve Adams at the December 13, 1979, meeting.
Certain proposed findings of fact submitted by the parties have been incorporated into this Recommended Order. To the extent the proposed findings of fact are not so incorporated, they are hereby rejected as being irrelevant to the issues determined, or unsupported by the evidence.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Steve Adams' actions toward Dean Parnell on December 13, 1979, be considered by the Board of Trustees of Lake City Community College as constituting insubordination, and that the memorandum of Dean Parnell dated December 13, 1979, describing Adams' insubordinate conduct be placed in Adams' official personnel file.
DONE and ORDERED this 25th day of July, 1980, in Tallahassee, Florida.
R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building
Frank M. Gafford, Esquire
Julian E. Collins, Esquire Post Office Box 2149
