STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD BARE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4037

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 22, 1993, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert G. Walker, Esquire

1432 Court Street

Clearwater, Florida 34616

For Respondent: Henry W. Lavandera, Esquire

Assistant General Counsel University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250 STATEMENT OF THE ISSUES

The issues are whether the Petitioner, Clifford Bare, has a right to proceedings under Section 120.57, Fla. Stat. (Supp. 1992), and, if so, whether his contract of employment as a member of the Administrative and Professional staff at the University of South Florida should be renewed.

PRELIMINARY STATEMENT

On or about July 2, 1993, the Petitioner, Clifford Bare, filed with the Respondent, the University of South Florida (USF), a request for proceedings under Section 120.57, Fla. Stat. (Supp. 1992), to contest USF's failure to renew the Petitioner's contract of employment as a member of USF's Administrative and Professional staff. USF referred the request to the Division of Administrative Hearings and requested the assignment of a hearing officer. On August 9, 1993, the parties filed a joint response to the initial order in the case requesting that one day be set aside for the hearing. The hearing was scheduled for Friday, October 22, 1993, at the St. Petersburg campus of the University of South Florida.

On October 20, 1993, Petitioner's Response to Motion to Dismiss was filed. For some reason, the Motion to Dismiss served by the Respondent on October 11, 1993, was not docketed or filed by the Clerk of the Division of Administrative Hearings, or received by the hearing officer. This was brought to the attention of counsel for USF, and counsel filed a copy of the motion on October 21, 1993.

On October 22, 1993, Petitioner's Election to Proceed Pro Se was filed. A copy also was presented to the hearing officer at the final hearing. The Petitioner and his counsel explained that counsel would represent the Petitioner on the Motion to Dismiss but thereafter would act only as a "consultant" to the Petitioner.

At the outset, the parties argued the Motion to Dismiss, and USF called one witness to facts pertinent to the Motion to Dismiss. No other evidence was presented on the Motion to Dismiss. Neither party ordered the preparation of a transcript of the hearing, and neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The non-teaching staff of the University of South Florida (USF) includes both the University Services Personnel System and the Administrative and Professional staff (A & P). The former is a career service personnel system that includes the prohibition against terminating an employee except for cause. A & P employees do not acquire tenure, and A & P employees can be "non- reappointed" at will, subject to applicable personnel procedures and, in the case of some A & P employees, subject to the provisions of a union contract covering those employees.

   
   

2. The Petitioner's position is not covered by any union contract. Besides, the union contracts that cover some of the other A & P employees do not affect the "non-reappointment" of A & P employees.

   
   

3. USF hired the Petitioner as a coordinator of student affairs on January 29, 1991. This position was and is part of USF's Administrative and Professional staff. It normally is a one-year contract of employment. The Petitioner's initial contract expired on August 6, 1991. The Petitioner's contract was renewed in August, 1991, and again in August, 1992. The last annual contract was to expire on August 8, 1993.

   
   

4. On November 23, 1992, USF's Provost, Gerry G. Meisels, wrote the Petitioner a letter advising the Petitioner that USF would not be re-appointing him upon expiration of his contract on August 8, 1993. The letter included reasons for the decision not to re-appoint the Petitioner. The Petitioner's compensation continued through the remainder of his contract.

   
   

5. The Petitioner filed a grievance pertaining to USF's notice of non- reappointment. After Step 2 of the grievance proceeding, the Petitioner requested administrative proceedings under Section 120.57, Fla. Stat. (Supp. 1992).

   CONCLUSIONS OF LAW

   
   

6. The personnel rules for the University of South Florida are contained in F.A.C. Rule Chapter 6C4-10. F.A.C. Rule 6C4-10.010 sets out a grievance procedure that applies to the Petitioner's "non-reappointment." F.A.C. Rule 6C4-10.010(9) provides that, after Step 2 of the grievance process, a grievant may initiate a proceeding under Section 120.57, Fla. Stat. (Supp. 1992), "[i]f the matter concerns a substantial interest."

   
   

7. F.A.C. Rule 6C4-10.011(3) provides that A & P employees of USF who are not represented by a bargaining unit may be "non-appointed upon written notice that they will not be offered further appointment." For employees in their second year of A & P service, the notice must be given "six months prior to the effective date of non-reappointment."

   
   

8. Because USF could "non-reappoint" the Petitioner at will, subject only to the notice requirements of F.A.C. Rule 6C4-10.011(3), no pertinent facts are in dispute, and the Petitioner has no "substantial interest" cognizable under Section 120.57, Fla. Stat. (Supp. 1992). See Hasper v. Dept. of Labor and Employment Security, 459 So. 2d 400 (Fla. 1st DCA 1984); Hasper v. Dept. of Admin., 459 So. 2d 398 (Fla. 1st DCA 1984); Nute v. Fla. Dept. of Law Enforcement, 397 So. 2d 1222 (Fla. 1st DCA 1981).

   
   

9. F.A.C. Rule 6C-5.405(5) also sets out a grievance process similar in many respects to the one set out in F.A.C. Rule 6C4-10.010. However, F.A.C. Rule 6C-5.405(5)(g) defines the term "substantial interest," as used in F.A.C. Rule 6C-5.405, to include "nonrenewal of employment contract." In addition,

F.A.C. Rule 6C-5.411, providing for the "non-reappointment" of the A & P employees to whom it applies, states: "The decision not to offer further appointment to a Board of Regents staff member shall not be based on constitutionally impermissible grounds." The Petitioner relied on those provisions in arguing that the Petitioner has a right to proceedings under Section 120.57, Fla. Stat. (Supp. 1992). But, although parts of F.A.C. Rule Chapter 6C-5 apply to all universities in the State University System, both

F.A.C. Rule 6C-5.405 and F.A.C. Rule 6C-5.411 apply only to office employees of the Board of Regents. They do not apply to the Petitioner. Instead, F.A.C. Rules 6C4-10.010 and 6C4-10.011 apply to the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the University of South Florida, enter a final order dismissing the petition for administrative proceedings in this case.

RECOMMENDED this 23rd day of November, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1993.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the University of South Florida written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the University of South Florida concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-004037

Orders for Case No: 93-004037