STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. HAMDI MOHAMMED, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3215

)

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 State Board of Education

Knott Building

Tallahassee, Florida 32301

This proceeding commenced by the filing of a Petition for Hearing by Petitioner Dr. Hamdi Mohammed against 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. This case was consolidated with a prior case which had been filed by Petitioner concerning his failure of reappointment as chairman of the Department of Dental Biomaterials in the College of Dentistry. (DOAH Case No. 81-2363)

Respondent filed a Motion to Dismiss the petition for untimeliness and on other grounds, and the motion was dismissed by Order dated January 27, 1982.

It was thereafter agreed by the parties that the hearing scheduled for June 9-10, 1982 would be for the purpose of receiving evidence for the determination of certain stipulated legal issues which would possibly resolve the controversy without a full fact-finding hearing. The stipulated issues were presented at the commencement of the hearing and accepted by the Hearing Officer with a

reservation as to the later determination of whether the stipulated issues properly fell within the jurisdiction granted under the Administrative Procedure Act. In its post-hearing Proposed Recommended Order Respondent seeks dismissal of the petition for lack of subject matter jurisdiction on the grounds that Petitioner is seeking an award of money damages arising out of an alleged breach of contract and that an award of damages arising out of contract matters is not one cognizable by administrative determination in this forum. Petitioner, on the other hand, seeks a determination in the nature of a declaratory statement as to whether salaries paid to Petitioner for the fiscal years in question were appropriate, including the question of whether additional supplemental funds generated from private sources were properly disbursed to Petitioner by the college administration. Once those questions are determined, Petitioner would then seek to have the parties informally determine the proper amounts involved, and failing to arrive at an agreement in that respect, make such a determination at a future evidentiary hearing.

It is considered unnecessary to arrive at specific findings of fact in order to resolve the jurisdictional issue. It is sufficient to quote in part the intent of the parties as expressed in the stipulation (Exhibit 1) as follows:

Case No. 81-3215 Under petition 81-3215, the Hearing Officer should determine if salaries paid to Dr. Mohammed for the fiscal years 1975 through 1981 were appropriate. The issue is whether the parties knowingly can contract to a salary amount different from the sum of money appearing as a line item in the budget prepared and submitted for appropriation to the Board of Regents. A part of this issue involves the use of AEF funds as a source of compensation. It is reasonably believed that if the following issues are determined, the parties can stipulate to the additional compensation, if any, without the need of an evidentiary hearing on the amounts involved.

It thus can be seen that the matter intended to be resolved is the rendition of an advisory opinion pertaining to contractual salary matters involving a university employee. There is no contention that this proceeding would be for the purpose of formulating final agency action, but to look back and make after- the-fact determinations as to past financial transactions arising out of contracts between the parties or the resolution of legal questions concerning the disposition of funds generated from other than State sources. Not only had final agency action been taken with regard to the money complaints for the fiscal years 1975 through 1981 prior to the filing of the Administrative Complaint, but Petitioner had previously elected to pursue his complaint through University grievance procedures which under Rule 6Cl-7.41, Florida Administrative Code, precludes the institution of a Section 120.57, Florida Statutes proceeding. Although Respondent's Motion to Dismiss on that ground was provisionally denied, it is now concluded that such election in itself precludes consideration of Petitioner's complaints in a Section 120.57, F.S. proceeding.

Rule 6Cl-7.42(2), F.A.C., provides that the election to proceed under the rule's grievance procedures "shall preclude recourse to the remaining alternatives."

Based on the foregoing considerations, it is therefore RECOMMENDED that the 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 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

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. Quincey, 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. 81-3215

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 81-3215, and being otherwise well advised in the premises, hereby adopts the findings of fact and conclusions of law contained in the Recommended Order.

EXCEPTIONS TO RECOMMENDED ORDER: Petitioner, Dr. Hamdi Mohammed, filed Exceptions to the Recommended Order on October 8, 1982. The Exceptions are rejected for the reasons set forth below:

1. Petitioner erroneously asserts in Exception Number One that the Hearing Officer states that Petitioner is seeking an award of money damages. The statement of the Hearing Officer at page 2 of the Recommended Order is merely a restatement of what Respondent stated it sought in its post-hearing Proposed Recommended Order. Petitioner's Exception Number One is without merit.

   
   

2. Petitioner's Exception Number Two is also without merit. Petitioner claims that the Hearing Officer, on page 2, mistakenly interprets the stipulated issue. The Hearing Officer in fact states that the actual stipulated issues were accepted by him with reservation as to whether the issues were properly within the jurisdiction granted him by the Administrative Procedures Act. The Hearing Officer then determined the issues were not within his proper jurisdiction. This conclusion is supported by substantial, competent evidence in the record.

   
   

3. Petitioner's Exception Number Three is without merit. There is substantial, competent evidence to support the Hearing Officer's findings that Petitioner's previous election of the university Grievance Procedures precluded the institution of a Section 120.57 Florida Statutes proceeding in this case.

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 based on the foregoing considerations, Petitioner's Petition 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: 81-003215

Orders for Case No: 81-003215