STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. HAMDI MOHAMMED, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2363

)

DEPARTMENT OF EDUCATION, )

UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Gainesville, Florida, on June 9-10, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Richard T. Jones, Esquire

Post Office Box 1526 Gainesville, Florida 32602

For Respondent: James S. Quincey, Esquire

Post Office Box 1090 Gainesville, Florida 32602

and

Judith A. Brechner, General Counsel Skate Board of Education

Knott Building Tallahassee, Florida 32301

This proceeding commenced by Petitioner's filing of a request for hearing pursuant to Section 120.57, Florida Statutes with the President of the University of Florida on September 9, 1981. The petition questioned the authority of the Dean of the College of Dentistry to remove or fail to reappoint Petitioner as chairman of the Department of Dental Biomaterials. By letter of September 18, 1981, the President of the University referred the petition to this Division with a request that a Hearing Officer be appointed.

On December 11, 1981, Petitioner filed another petition for hearing with the Respondent University of Florida wherein he requested that a determination be made as to his entitlement to salary adjustments and certain supplemental funds during the period of fiscal years 1975-1976 through 1980-1981. The petition was referred to the Division for appointment of a Hearing Officer by the University of Florida, pursuant to letter dated December 16, 1981. Both petitions alleged that Petitioner had commenced grievance procedures against the University, but that they had been denied as either untimely or inappropriate under University procedures.

The two cases were consolidated pursuant to Rule 28-5.106, Florida Administrative Code, by Order dated January 27, 1982, and were scheduled for hearing on March 22-24, 1982, by Notice of Hearing, dated January 27, 1982. Subsequently, by Order dated March 3, 1982, Respondent's Motion for Continuance of the hearing was granted and the hearing was rescheduled for June 8-11, 1982.

The Order also directed Petitioner to file an Amended Petition in Case No.

81-2363 to set forth those matters required by Rule 28-5.201, Florida Administrative Code. Amended Petition was filed on March 17, 1982, to which Respondent filed a Motion to Dismiss.

As a result of a prehearing conference held on April 12, 1982, ruling was reserved on Respondent's Motion to Dismiss the Amended Petition pending completion of the final hearing in view of the fact that disputed matters had been raised by the pleadings which could not be resolved without the presentation of evidence. It was thereafter agreed by the parties that the hearing scheduled for June 9-10 would be for the purpose of receiving evidence for the determination of certain stipulated legal issues which could possibly resolve the controversy without a full fact-finding hearing. The stipulated issues were presented at the commencement of the hearing and conditionally accepted by the Hearing Officer. In addition, the parties stipulated that certain rules of the Board of Regents and the University were not deemed applicable to the proceedings. These were Rules 6C1-7.07, 7.11, 7.42, and 7.44, and Rules 6C-5.105 (6)(a), 6C-5.235, and 6C-5.411, Florida Administrative Code. The parties were unable to agree as to the applicability of Rule 6C1-7.l3 and

7.48. Official recognition was taken of certain rules and rule amendments as set forth in Exhibits 3, 33, and 40.

At the hearing, Petitioner called two witnesses and testified in his own behalf. Four witnesses testified for the Respondent. The depositions of eight witnesses and one of Petitioner were received in evidence as Exhibits 25 through

33. A total of 42 exhibits were submitted in evidence at the hearing. Exhibit

41 was rejected, as was a tape recording which erroneously was marked as Exhibit

1. That exhibit is hereby renumbered Exhibit 42. Those exhibits which were provisionally received are hereby admitted in evidence. In addition, the parties agreed that the exhibits attached to the various depositions would he admitted in evidence.

   
   

   The memoranda of law and proposed recommended orders submitted by the parties have been fully considered, and those portions note adopted herein, are considered to be either unnecessary or irrelevant, or unsupported in law or fact.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner))

   2. Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner))

      
      

   3. On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4)

      
      

   4. In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen))

   5. Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner))

      
      

   6. During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5)

   7. On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth))

      
      

   8. It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5)

      
      

   9. Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent

      interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi))

      
      

   10. Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein:

       
       

       The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down

       on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de-

       partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things.

       (T 38-39)

       
       

       . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman

       that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as

       a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed

       an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen))

       
       

   11. Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that

       foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))

       
       

       CONCLUSIONS OF LAW

       
       

   12. The stipulation of the parties as to the issues herein provide that certain of the issues would not require rulings dependent upon action on preceding issues. The stipulation was accepted by the Hearing Officer with the condition that he would make appropriate determinations as to administrative jurisdiction in the particular areas identified by the parties. At the commencement of the hearing, Petitioner's counsel announced that additional research had led him to the conclusion that only issue 1 and that portion of issue 2 relating to whether Petitioner's resignation was validly accepted were within the scope of the Administrative Procedure Act, with the remainder of the issues being matters involving constitutional principles or contract issues which properly could not be resolved in this forum. The stipulated issues are as follows:

       
       

       Issue I

       Does the Dean of the College of Dentistry, the knowledge and consent of the Vice President for Health Affairs, have authority to not reappoint a department chairperson at the beginning of an academic year, i.e., on July 1?

       
       

       Issue II

       Is the written resignation of Dr. Mohammed dated June 23, 1980 valid and binding on him?

       
       

       Issue III

       Does Dr. Mohammed have tenure as chairperson by contract?

       
       

       Issue IV

       Does Dr. Mohammed have "defacto" tenure as chairperson?

   13. During the course of this proceeding, the parties

       have submitted voluminous materials in support of their respective contentions concerning such concepts as appointments, tenure, resignation, and discharge or dismissal. At the outset, however, it is determined that none of those concepts relate directly to the matter under consideration here. Rather, the basic question for consideration is one relating to the assignment of additional administrative duties to a tenured faculty member of the University. It is unnecessary to consider the fine points regarding the law as to dismissal or resignation in lieu thereof since Petitioner has never been discharged from his employment, but simply relieved of the administrative duties that accompanied his designation as departmental chairman. In this context, it is unnecessary to consider Petitioner's contention that he was tenured not only in the status of professor, but also as chairman of the Department of Dental Biomaterials. Such a contention is totally unsupported by any evidence whatsoever, and flies in the face of traditional and accepted practices in the State University System. It is true that there is a separate classification code for the title "chairperson and professor" which appears on the annual notice of appointment of such individuals. The evidence, however, showed that this designation is part of an overall university classification system, which is intended to primarily provide a basis for appropriate collective bargaining unit determinations. It is also obvious that the one who is a chairman of a department enjoys a certain amount of prestige based on his supervisory role in the faculty. Finally, the evidence indicates that a chairman normally was paid more than other faculty members for his additional functions in that respect, although such remuneration was not separately stated until recently. These considerations establish that a decision by a dean that a chairman should be relieved of his administrative functions and return to a purely faculty status should not be taken lightly and, indeed, the evidence herein indicates that such involuntary relinquishment of the duties of chairman is rarely exercised. In most cases, it is brought about by a decision of the chairman to give up his administrative duties and return to a teaching or research status, or results from a "meeting of the minds" between the individual affected and his own supervisor.

       
       

   14. In this case, it is determined that the Dean of the College of Dentistry acted within appropriate authority with respect to his actions concerning the Petitioner. Although neither pertinent statutes or rules of the Department of Education specify the manner in which departmental chairmen are designated, Rule 6C-4.01(2), Florida Administrative Code, implements Section 240.227(5), Florida Statutes, which vests authority in university presidents to appoint, remove, and reassign vice presidents, academic deans, and policy level positions reporting directly to the President. The rule also provides that the President shall appoint and be responsible for all other personnel. Rules of the University of Florida provide in Rule 6C1-1.01(2) pertinently as follows:

       
       

       6C1-1.01 University of Florida; organization.

       * * *

       (2) The Vice President for Academic Affairs is the chief academic officer of the Univer- sity and advises the President on academic matters. Responsible to the President, through the Vice President for Academic Affairs, are the deans of the colleges. In the cases of the Institute of Food and Agri- cultural Sciences and the J. Hillis Miller Health Center, the deans are responsible to the Vice President for Academic Affairs through their respective vice presidents for

       academic procedures relative to resident in- struction and academic personnel matters . . . The Department is the fundamental unit of academic and administrative organization.

       The heads of departments are chairmen of the de- partments, responsible to their respective deans. The chairmen or heads of the departments general responsibility for all activities

       of their departments.

       * * *

       (b) The faculty of a College consists of

       all professors, associate professors, assistant professors, and instructors in the departments which are part of the college; . . . and the deans, associate deans, and assistant deans of the college and the President of the University as ex-officio members. (Emphasis added)

       
       

       Section 240.202, Florida Statutes, provides that the powers, duties, and authority vested with the University should be vested with the President of the University or his designee, and Rule 6C-4.01(8)(c) F.A.C., includes the approval of change of status of university personnel as a power of the President of each institution. It is apparent from the above-quoted rules of the University that the deans of the colleges have been delegated authority in academic personnel matters under the supervision of the Vice President for Health Affairs and the Vice President for Academic Affairs. The change of status of Petitioner which became effective in July, 1981, was an academic personnel matter taken by the Dean of the College of Dentistry after having received the concurrence of the appropriate vice presidents. Inasmuch as only a change in status or reassignment was involved, it is unnecessary to assess the merits of the stated justification for the action. In short, it is considered that a departmental chairmanship is an academic-administrative assignment, termination from which does not give rise to the same procedural due process requirements involved in the dismissal from employment of a tenured faculty member. This presupposes, of course, that termination of the status is not effected during an annual contractual period. Peacock v. Board of Regents of the Universities and State College of Arizona, 510 F2d 1324 (9th Cir. 1975). Here Petitioner served throughout the 1980-81 school year as chairman, and it was not until the following academic year that his appointment was limited to that of a professor without reduction in the salary that he had received in the dual capacity of chairman-professor during the preceding year.

       
       

   15. It is considered that the question of the efficacy of Petitioner's purported "resignation" and later attempt to withdraw the same is moot under the circumstances. Not only is it questionable as to whether such a resignation short of an intended termination of employment carries with it the same legal effects accorded in the latter situation, but the evidence shows that, notwithstanding Respondent's acceptance of the same and disavowal of the withdrawal, it nevertheless engaged in a "reconsideration" of Petitioner's status in the spring of 1981 and ultimately informed him of the reasons for the proposed non-reappointment effective July 1, 1981. No reference was made by the University in that notification as to its continuing reliance upon Petitioner's earlier resignation. Thus, it is deemed that such action vitiated any binding effect of the resignation, but also renders moot Petitioner's contentions concerning duress in its original submission.

   16. As previously noted, Petitioner's claims under various theories that he was entitled to tenure in the capacity of departmental chairman are without merit. The only Florida case cited by the parties on this subject involved a private university wherein the Court, in an abbreviated opinion, held simply that a tenured faculty member had no "right" to the position of chairman and was clearly subject to dismissal by the University at any time. Kirsner v. University of Miami, 362 So.2d 449 (3rd DCA 1978) Although Petitioner is correct in stating that the question of tenure is controlled by the particular law, custom and procedure applicable to the particular university in question, the contentions of Respondent that tenure did not accrue to Petitioner in his position as chairman are considered to be correct. Board of Regents Rule 6C- 5.225(3)(a), F.A.C., specifies that tenure earning appointments are those faculty appointments to the ranks of assistant professor, associate professor and professor. The predecessor rule which was repealed, effective November 11, 1980, was Rule 6C-5.06(3)(a) which read as follows:

(3) Eligibility for tenure.

(a) Only those employees of the University System are classified as full-time teaching research and extension faculty with a rank of assistant professor or above under the provisions of these rules which govern classification are eligible for tenure. Tenured faculty members in administrative positions shall retain tenure in the faculty classi- fication, but not in any administra- tive positions. (Emphasis added)

Although the last sentence of the above rule was not retained in Rule 6C- 5.225(3)(a), it is noteworthy that the University of Florida Constitution provides similarly in Article V, Section 5C(1) as follows:

(C) Eligibility for tenure.

1. Only those who are classified as teaching and research faculty of the University of Florida under

   the provisions of this Constitution or Senate By-Laws, as subject to the provisions of the Operating Manual

   of the Board of Regents, are eligible for tenure. Faculty members who are appointed to administrative positions shall retain tenure in the faculty classification, but not in the adminis- trative position.

   
   

   Additionally, University of Florida Rule 6C1-7.19(2), F.A.C., references the former Board of Regents Rule 6C-5.06(3) as determining eligibility for tenure. These regulations make it clear that tenure accrues only with regard to faculty rank, and not in administrative positions such as that of departmental chairman. Rule 6C1-7.04(2)(c) dealing with the instruction, research and extension faculty states pertinently:

   
   

2. Notice of Initial Appointments and Renewals of Appointments.

* * *

(c) No faculty appointment shall be for a term exceeding one year. The ap-

pointment of tenure to a permanent status faculty member shall be renewed annually subject to the limitations ,set forth in 6C1-7.19, F.A.C. The appointment of non- tenured, or non-permanent status faculty members is subject to non-renewal in ac- cordance with the notice provisions set forth in 6C1-7.13, F.A.C.

Petitioner claims that if he is tenured in his position as chairman, then the provisions of Rule 6C1-7.19 apply, and if he is non-tenured in his position, then the provisions of Rule 6C1-7.13 apply, and that neither was met by Respondent in his non-reappointment. Petitioner's claim is erroneous in both respects. At no time was he deprived of his tenured position as professor, and Rule 6C1-7.13 deals only with a decision not to renew the employment of a non- tenured or non-permanent status faculty member. Petitioner was a tenured faculty member whose employment in his tenured status was continued. The documentation relative to Petitioner's nomination for and subsequent granting of tenure establishes that such status was conferred solely in the faculty rank of professor. Further, it has been shown that the past and present policies of the State Board of Regents and the University of Florida have never extended the concept of tenure to the position of departmental chairman. It is concluded that Petitioner reasonably could not have expected to be continued permanently in his capacity as chairman, nor was there a basis for reliance that he was tenured in fact, due to the comprehensive rules and regulations employed by the University with regard to tenure.

It is therefore RECOMMENDED:

That Petitioner's request for reinstatement as chairman of the Department of Dental Biomaterials, College of Dentistry, University of Florida, be DENIED and that the Amended Petition herein be DISMISSED.

DONE and ENTERED this 20th day of September, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1982.

COPIES FURNISHED:

Richard T. Jones, Esquire Post Office Box 1526 Gainesville, Florida 32602

James S. Qunicy, Esquire Post Office Box 1090 Gainesville, Florida 32602

Judith A. Brechner General Counsel

State Board of Education Knott Building Tallahassee, Florida 32301

Robert Q. Marston President

University of Florida

226 Tigert Hall Gainesville, Florida 32611

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF EDUCATION

DIVISION OF UNIVERSITIES UNIVERSITY OF FLORIDA

DR. HAMDI MOHAMMED,

Petitioner,

vs. DOAH CASE NO. 81-2363

DEPARTMENT OF EDUCATION, UNIVERSITY OF FLORIDA,

Respondent.

/

FINAL ORDER

The University of Florida, having received the Recommended Order entered in this cause by Hearing Officer Thomas C. Oldham, dated September 20, 1982, Case Number 81-2363, and being otherwise well advised in the premises, hereby adopts the findings of fact and conclusions of law contained in the Recommended Order with the following change to the Conclusions of Law:

1. Paragraph Four of the Conclusions of Law is amended to state the following:

Consideration of the question of the efficacy of Petitioner's purported "resignation" and later attempt to withdraw the same results in the con-

clusion that the resignation was immediately effective and Petitioner's later attempt at withdrawal was ineffective. The facts which are supported by substantial, competent evidence indicate Petitioner tendered his resignation and it was immediately accepted, then formally confirmed, by Dean Allen. Petitioner's subsequent attempt at withdrawal was unilateral and therefore ineffective.

Thus, it is deemed that the resignation was valid and binding on both Petitioner and the University of Florida and its validity was not vitiated by any subsequent discussions between Petitioner and Dean Allen. Further, the record does not support Petitioner's contention that there was duress in his original submission of his resignation.

EXCEPTIONS TO RECOMMENDED ORDER: Petitioner, Dr. Hamdi Mohammed, filed Exceptions to the Recommended Order on October 8, 1982. These Exceptions are considered and are rejected as set forth below under "Exceptions." Petitioner also filed Supplemental Exceptions to the Recommended Order on November 18, 1982. These Exceptions were not timely filed pursuant to Rule 28-5.404, F.A.C., in that they were filed in excess of 20 days from the date of the Recommended Order, and, as such, the Exceptions are not considered. However, had Petitioner's Supplemental Exceptions been timely filed, the Supplemental Exceptions would have been rejected for the reasons set forth below under "Supplemental Exceptions".

EXCEPTIONS:

1. Petitioner's Exception Number One alleges that the Hearing Officer's findings of fact in Paragraph 3 are incomplete in that he fails to consider certain portions of Exhibit 4. The Hearing Officer's findings are complete in that he includes those facts which are relevant and material to the issues. His findings are supported by substantial, competent evidence. Petitioner's Exception Number One is without merit.

   
   

2. Petitioner's Exception Number Two alleges that the Hearing Officer's findings of fact in Paragraph Number 5 are incorrect because the Hearing Officer's finding that Dean Allen informed Petitioner that he had no option other than to try to rebuild the department with a new Chairperson is an unresolved conflict in the testimony. The Hearing Officer's finding in Paragraph 5 is supported by substantial, competent evidence indicating the Dean's intent not to reappoint Petitioner as Chairman and his notification to Petitioner of this decision. Petitioner's Exception Number Two is without merit.

   
   

3. Petitioner's Exception Number Three alleges that the Hearing Officer's finding in Paragraph 8 that the general practice at the University of Florida, which is for a dean to appoint a departmental chairman, ignores the issue of whether the general practice comports with the pertinent Rules. The Hearing Officer's finding that the practice comports with University Rules is supported by competent, substantial evidence and Petitioner's Exception Number Three is without merit.

4. Petitioner asserts in Exception Number Four that the Hearing Officer, in Paragraph 9, fails to consider the effect of Rules 6C1-7.04(2)(d) and 6C- 5.105(2)(a). The Hearing Officer's findings that the State university Classification System is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining are well- supported in the record by competent, substantial evidence. Petitioner's Exception Number Four is without merit.

   
   

5. Petitioner's Exception Number Five alleges that the Hearing Officer's findings of fact in Paragraph 9 are not supported by the record. The Hearing Officer's findings that a departmental chairman is primarily responsible for administrative duties and that the evidence did not indicate that an individual would have tenure in the position of chairperson, are supported by substantial, competent evidence in the record. The Hearing Officer's statement that the concept of tenure does not apply to the position of Departmental Chairman is correct and is supported by substantial and competent evidence. Petitioner's remaining arguments are mere speculation and are not supported by the record. Petitioner's Exception Number Five is without merit.

   
   

6. Petitioner's Exception Number Six alleges that the Hearing Officer's Conclusions of Law in Paragraph 6 of page 12 are unsupported by the facts. The Hearing Officer bases his conclusion that Petitioner had no tenure in his position as Chairman on the facts as found in the record and these findings are well-supported by substantial, competent evidence. Petitioner's Exception Number Six is therefore without merit.

   
   

7. Petitioner's Exception Number Seven is also without merit. That a Dean has authority to appoint a chairman, as the Hearing Officer concludes on page 14, paragraph 3 of the Conclusions of Law, is a correct statement and the Hearing Officer's findings were consistent with the substantial, competent evidence found in the record.

   
   

8. Petitioner's Exception Number Eight alleges that the Hearing Officer's Conclusions of Law in paragraph 3 are impermissible constitutional conclusions. The Hearing Officer found that the chairmanship is an academic-administrative assignment, termination from which gives rise to non-appointment procedures less than what would be required in the dismissal of a tenured professor from employment as a Professor. This conclusion is based on substantial, competent evidence in the record. Further the Hearing Officer did not reach a constitutional conclusion in such a finding, but, rather, concluded that the procedures followed in Petitioner's non- reappointment were properly followed. Petitioner's Exception Number Eight is without merit.

   
   

9. Petitioner asserts in Exception Number Nine that the Hearing Officer erroneously concluded in Paragraph 5 of the Conclusions of Law that the position of Department Chairman carried with it no entitlement of tenure. Petitioner's claim is unsupported by the record. The Hearing Officer's conclusions are based on substantial, competent evidence found in the record and are consistent with his earlier findings of fact. Petitioner's Exception Number Nine is without merit.

10. In Exception Number 10, Petitioner erroneously alleges that the Hearing Officer made a finding in Paragraph 5 that neither of the University tenure rules applied because Petitioner was not deprived of anything when he was not reappointed as Department Chairman. No such finding was made. The Hearing Officer did conclude that at no time was Petitioner deprived of his tenured position of Professor and this is supported by substantial, competent evidence in the record.

SUPPLEMENTAL EXCEPTIONS:

l. Petitioner's Supplemental Exception Number One is irrelevant and immaterial and therefore denied.

1. Petitioner's Supplemental Exception Number Two has been previously excepted to by Petitioner and is therefore unnecessary and cumulative. Supplemental Exception Number Two is denied.

   
   

2. Petitioner's Supplemental Exception Number Three alleges that the Hearing Officer, in Paragraph 3 of his Conclusions of Law, made constitutional conclusions. The record does not support such an assertion. This has previously been set forth in response to Petitioner's Exception Number 8 above. Supplemental Exception Number 3 is denied.

   
   

3. In Supplemental Exception Number Four, Petitioner alleges that the Hearing Officer analyzed Petitioner's cause in light of constitutional rights and remedies for which the Hearing Officer did not have jurisdiction. The Hearing Officer proceeded within the guidelines allowed by law in formulating his conclusions. His conclusions are supported by the substantial, competent evidence in the record. Petitioner's Supplemental Exception Number Four is without merit.

   
   

4. Petitioner alleges in Supplemental Exception Number Five that the Hearing Officer made "underlying constitutional determinations". The factual determinations made by the Hearing Officer are supported by substantial, competent evidence as found in the record. Supplemental Exception Number Five is without merit and is therefore denied.

The proposed findings of fact contained in Petitioner's proposed Order are rejected in that they are subordinate, cumulative, unnecessary and immaterial.

WHEREFORE, IT IS ORDERED AND ADJUDGED:

That Petitioner's request for reinstatement as Chairman of the Department of Dental Biomaterials, College of Dentistry, University of Florida, be DENIED and that the Amended Petition herein be DISMISSED.

DONE AND ORDERED this 14th day of December, 1982, in Gainesville, Florida.

Robert Q. Marston, President

226 Tigert Hall University of Florida

Gainesville, Florida 32611

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing document has been furnished by

U.S. Mail to Richard T. Jones, Esquire, Post Office Box 1526, Gainesville, Florida 32602; James S. Quincey, Esquire, Post Office Box 1090, Gainesville, Florida 32602; and Judith A. Brechner, General Counsel, State Board of Education, Knott Building, Tallahassee, Florida 32301, this 14th day of December, 1982.

Emma R. Hill

Docket for Case No: 81-002363

Orders for Case No: 81-002363