STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANDREW C. WALLACE, )
)
Petitioner, )
)
vs. ) CASE NO. 75-431
) UNIVERSITY OF SOUTH FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, from December 1, 1975 through December 5, 1975, at the Fine Arts Building and University Student Center at the University of South Florida, Tampa, Florida.
APPEARANCES
For Petitioner: William D. Holland, Jr., Esquire
Suite 304, First National Bank Building
215 Madison Street Tampa, Florida 33602
For Respondent: William E. Sizemore, Esquire
D. Frank Winkles, Esquire
Shackleford, Farrior, Stallings & Evans Post Office Box 3324
Tampa, Florida 33601
WITNESSES FOR PETITIONER
Thomas R. Dance Bill Otte
Former Student, Assistant Former Student, Industrial Manager of K-Mart Salesman
Harris H. Mullen Terry Baker President of Trend Publications Former Student
William J. Tuxhorn Douglas Gardner
Former Student, National Former Student Marketing Manager for
Iodynamics Corp. Terry Blake Former Student
Louis Hautzig
Hotel Executive Dale E. Futhey Professor, Department of
James P. Ryan, Jr. Marketing, USF Manager of Area Development -
Local Government Affairs, General Harry H. Root, Jr. Telephone Company Manufacturing Executive
Joseph A. Affronti Alton C. Bartlett
President of Mary Carter Professor, Management
Paint Company Department, USF
John D. Carmichael Sotirios A. Barber, Professor
Professor, Department of Political Science, USF Marketing, USF
Warren A. De Bord, Professor
Mary Louise Sellars Department of Marketing, USF, High School Distributive Sperry-Boone, Inc., Executive Education Coordinator
William R. Blount, Professor
James J. Sherman Criminal Justice, USF Professor, Management
Department, USF Robert J. West, Professor of Accounting, USF
David H. McClain
Senator; Attorney Harriett Deer, Professor of English, USF
Donald Jaspe
Professor, College of Carl D. Riggs, Professor of
Education, USF Zoology, Vice-President for Academic Affairs, USF
William D. Stevens, Professor,
Department of Marketing, USF Howard Dye, Dean of College
of Business Administration,
Vincent Budny, Jr. USF Former Student, Sales Representative
for Boyle Midway William D. Herbert, Senior Vice-President of Celotex
Stratton Smith, III
Former Student, Financial Counselor Andrew Wallace
Petitioner
Dianne Hutchings
Former Student, Assistant Buyer Richard Brightwell, Director for Maas Brothers of Continuing Education, USF
David C. Sleeper, Professor, Robert Cline, Professor of Department of Marketing, USF Finance at University of
North Florida, Jacksonville
Terrell Sessums, Attorney,
Former Legislator Gail Trapnell, State Department of Education,
James A. Parrish, Jr., Professor Division of Vocational English Department, USF Education [By deposition]
FOR RESPONDENT
Henry Towery, Professor Robert Lee Anderson, Professor, Department of Marketing, USF; Department of Marketing, USF Sperry-Boone Corp., Executive
Timothy W. Sweeney
Terry L. Edmonson, Director Dean, College of Business, of Development, USF St. Bonaventure, N.Y.
John Stafford, Professor, Kemper W. Marian, Professor, Geography Department, USF Accounting, USF
Thomas Ness, Professor Charles R. Klasson
and Chairman of Department of Associate Dean, Academic Marketing, USF Programs, University of
Iowa [By deposition]
Michael Kartt, David Kartt, Inc.,
Adjunct professor in Department of Marketing, USF
ISSUES
The issues presented for determination in this matter are as follows:
Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment?
Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations?
Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975?
Was petitioner wrongfully terminated before he received a due process hearing?
FINDINGS OF FACT
Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found:
Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity.
In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969.
In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of
the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts.
At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach.
The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged."
Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me."
There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills.
There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner.
As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two.
At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure.
In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of
significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration.
In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs.
In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman.
The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department.
A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student
evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language:
"Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help.
As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students.
I want to thank you in advance for doing this on such short notice. Good luck."
It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results.
The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that
"Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..."
The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members,
letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure.
Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality.
With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were:
"1) No terminal degree and lack of compen- sating experience or background.
An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident.
Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater.
Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration."
Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure.
The process of evaluation for tenure recommendation was thus completed, having travelled the following route:
preparation by petitioner of his tenure packet;
the favorable vote of the department's three tenured faculty members;
the receipt of comments from some of the nontenured faculty;
the favorable recommendation of the Department Chairman;
the negative recommendation of the College Dean; and
the negative decision of the Vice-President for Academic Affairs.
Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing.
The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case.
The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing.
With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business
courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida.
There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students
17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques.
Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research.
Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed."
Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration.
The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance.
Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
CONCLUSIONS OF LAW
The first issue for consideration is whether the status of tenure may be denied, as opposed to being granted or deferred, a faculty member during his fifth year of continuous employment. This issue has been previously considered by the undersigned Hearing Officer in the case of Jeffrey Rosner v. University of South Florida, Case No. 75-1176, order entered December 29, 1975, wherein it was determined that the decision to deny tenure during the fifth year of employment does not result in noncompliance with the written standards, criteria or procedures prescribed by the Board of Regents or University regulations. The rationale behind such determination is fully set forth on pages 7 through 9 of the Rosner order, supra.
The second issue is whether the status of tenure was wrongfully denied in this case. F.S. Section 242.731, also known as the Omnibus Education Act, provides that faculty members assigned full-time teaching duties shall be awarded with salary adjustments, promotions, reemployment or tenure for meritorious teaching and other scholarly activities related thereto. That section further provides that "the means of identifying and evaluating quality teachers shall be determined by each institution in the state university system in accordance with established guidelines of the board of regents." To implement this statute and F.S. Section 240.042, the board of regents promulgated Rule 6C-5.05, dealing with faculty evaluation and improvement. That Rule provides for evaluations to precede and be considered in recommendations and final decision on tenure, promotions, salary and on retention or nonrenewal for nontenured faculty members. The areas of performance to be evaluated are teaching, research and other creative activities, service and other university duties. Rule 6C-5.06, F.A.C., pertains to tenure. Tenure is defined as
"that condition attained by the faculty mem- ber through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society."
That Rule further states that "the faculty member considered for tenure will normally hold the terminal degree for his field," and prescribes the procedure to be followed when the faculty member becomes eligible for the status of tenure. The Rules also provide for methods of resolving grievances in the event that tenure or promotion is denied. Rule 6C-5.08(4)(a)(ii) states that a grievance may be initiated by:
"Any faculty member who deems himself aggrieved by reason of the failure or refusal
of the administration to grant him tenure or promotion because of constitutionally imper- missable reasons or as a result of non- pliance with written standards, criteria, or procedures prescribed by the Board of Regents or university regulations,..."
It thus appears that in making a determination of whether the status of tenure was wrongfully denied in the instant case, there are two prescribed inquiries to be made. First, was tenure denied for constitutionally impermissible reasons? Second, was the denial a result of noncompliance with written standards, criteria or procedures prescribed by the Board or university regulations? A third inquiry must also be made: Was the respondent's action motivated by arbitrariness, capriciousness or bad faith? The criteria for tenure, as briefly outlined above, are necessarily subjective. There is obviously some degree of discretion on the part of each person who plays a part in the tenure recommendation process. Unless that discretion is abused, a noneducational tribunal should not interfere. It is the burden of the faculty member to show that the refusal to recommend tenure in his case was motivated by bad faith or that such discretion was exercised arbitrarily.
Petitioner has failed to demonstrate that the denial of tenure in his case was based upon constitutionally impermissible reasons. While petitioner sought to prove that tenure was denied him because of the administration's disagreement with the contents of some of his writings, and thus he was denied freedom of speech, the evidence does not substantiate such a contention. Petitioner's writings were analyzed in terms of their scholarship because petitioner submitted them as such. Research and other creative activities is an appropriate and, indeed, mandated area of performance to be evaluated. The evidence clearly demonstrates that the judgment regarding petitioner's performance in the area of research was based upon a conclusion that his writings were not in the area of marketing and that they were not based upon competent research methodology. The decision in this case was not based upon philosophical difference of opinion regarding the subject matter of petitioner's writings, and thus there has been no violation of petitioner's freedom of speech.
Nor has the petitioner carried his burden of showing that respondent failed to comply with written standards, criteria or procedures prescribed by Board of Regents or University regulations. The criteria for making tenure recommendations have remained substantially the same since petitioner's appointment to the University of South Florida. The Board of Regents and the respondent have always required a high degree of competency in the areas of teaching, research and service. Petitioner was evaluated in these three areas, and it was determined that petitioner lacked "scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident." The Rules further provide that one being considered for tenure will normally hold the terminal degree in his field. Petitioner has not obtained his Ph.D. degree, and this was one of the stated reasons, along with lack of compensating experience or background, for Dean Dye's and Vice President Riggs' negative recommendation regarding tenure. There is no showing that the actual procedures followed in petitioner's tenure consideration did not comply with Board of Regents or University regulations.
While there is evidence that more emphasis was placed upon the area of research within the College of Business Administration with the arrival of Dean
Dye in 1973, this fact would be more relevant if we were confronted with the issue of quantity, rather than quality of the writings of petitioner. Here, there is no question that petitioner has published a significant number of articles. The criticism pertains to the contents of such writings - that they are not in the area of marketing and that they are not based upon competent research methodology. As one witness at, the hearing described the situation, the decision to deny tenure in this case was not based upon a policy of "publish or perish." Rather, it was more a case of "publish and perish." The publications and creative activity were there. There was just nothing in such works to indicate that petitioner had shown scholarship or a high degree of competency in the field of marketing. This finding, along with the fact that petitioner does not hold the terminal degree for his field, constitute sufficient justification under the existing standards and criteria for denying tenure to petitioner. The fact that consideration was also given to the probability of petitioner attaining highly competent performance in the future and to the available talent in the market place does not taint the tenure consideration in petitioner's case.
As the findings of fact illustrate, there is a divergence of opinion as to the petitioner's quality of performance in the three areas to be evaluated. There is evidence that some would rate petitioner as being highly competent and deserving of tenure and that some would not. However, it cannot be said that the discretion exercised by the University in this instance was arbitrary, capricious or motivated by bad faith. In the absence of such a showing, it must be concluded that petitioner has failed in his burden to prove that the status of tenure was wrongfully denied.
The third issue is whether respondent wrongfully determined that petitioner's employment contract would not be renewed beyond June of 1975. Considerations regarding the renewal of contracts involve evaluations of the same criteria as are considered in tenure recommendations. There is no contention that the proper notice of nonrenewal was not given. Petitioner having failed to demonstrate that the reasons for nonrenewal (which would be the same as the reasons for the unfavorable tenure recommendation) were constitutionally impermissible, a violation of property rights or not in compliance with standards, criteria or procedures, there is no merit to the contention that his contract of employment was wrongfully terminated.
Finally, it is contended by petitioner that he was wrongfully terminated before he received a due process hearing on the issues. This contention likewise is without merit. In March of 1974, petitioner was notified that his contract of employment would end on June 19, 1975, and would not be renewed. The purpose of the years' notice requirement (Rule 6C-5.07(1)(a)(i)) is to afford the faculty member the time and opportunity to file a grievance and/or to obtain other employment before his contract expires. The fifteen month notice afforded in the instant case was certainly adequate for those purposes. Here, petitioner pursued the internal grievance procedure delineated in F.A.C. Section 6C-5.08(4)(a)(iii) and, having failed to achieve a satisfactory result, sought a plenary proceeding by filing a complaint with the University on April 4, 1975. This complaint was forwarded to the Division of Administrative Hearings for the appointment of a hearing officer and was received on May 5, 1975. Due to a State court action filed by petitioner, discovery proceedings were delayed and a pre-hearing conference could not be scheduled to meet the convenience of the parties until October 28, 1975, at which time the hearing date of December 1, 1975, was set. Under the circumstances, petitioner has no grounds to complain that his hearing followed, rather than preceded, his termination.
Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein.
Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9676
COPIES FURNISHED:
William D. Holland, Jr., Esquire Suite 304, First National Bank Building
215 Madison Street Tampa, Florida 32602
D. Frank Winkles, Esquire
& William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans
P.O. Box 3324
Tampa, Florida 3324
Dr. Cecil Mackey, President University of South Florida ADM 241
Tampa, Florida
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1976 | Final Order filed. |
| Jan. 26, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 10, 1976 | Agency Final Order | |
| Jan. 26, 1976 | Recommended Order | Petitioner failed to show his denial of tenure was based on impermissible grounds. Recommended Order: deny petition. |
