STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DENNIS H. PARR, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1138
) 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, on April 12, 1976, and continuing on April 13 and April 14 and May 11, 1976, in Room 105 of the Engineering Building, University of South Florida, Tampa, Florida.
APPEARANCES
For Petitioner: David A. Maney, Esquire
Gordon and Maney, P.A.
Suite 2919, First Financial Tower Tampa, Florida 33602
For Respondent: D. Frank Winkles, Esquire
Shackleford, Farrior, Stallings Evans, P.A. Post Office Box 3324
Tampa, Florida 33601 FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner received his bachelor of science degree in civil engineering from Marquette University in 1963. In January of 1966 and in June of 1968 respectively, Petitioner received his master of science and doctor of science degrees from New Mexico State University.
From July of 1968 to August of 1970, Petitioner was employed as an Assistant Professor at West Virginia University in Morgantown, West Virginia.
Petitioner began his duties with the University of South Florida in September of 1970 as an Assistant Professor in the Structures, Materials and Fluids (SMF) Department, College of Engineering. At the time he was hired, the SMF department policy provided that the following criteria would be taken into consideration in recommendations for salary increases and promotions:
teaching effectiveness;
research initiation and support;
service to the University, the community and the engineering profession;
attainment of highest educational degree in the field;
effort to work harmoniously with others; and
publications in definitive journals.
In March of 1971, the Chairman of the SMF Department, Dr., John E. Griffith, highly recommended Petitioner for promotion to Associate Professor and Petitioner was so promoted.
Annual evaluations of Petitioner were performed by the Department Chairman for the following four years for purposes of salary increase proposals. Petitioner received salary increases for each year. In the 1971/72 salary increase proposal form, the Chairman described Petitioner's teaching as thorough, meticulous and with clear presentations. Thereafter, Petitioner's teaching and research were evaluated as average to below average by his Department Chairman.
In the middle of the 1973/74 academic year, Petitioner submitted his first application for tenure. Although he had not yet been at USF for five years--the normal time for tenure considerations--he was given credit for his two prior years at the University of West Virginia and thus had served six years in a tenure earning position. The tenure packet for this first tenure consideration reveals that Petitioner listed ten publications, six or seven of which were completed before he came to USF. For the five quarters preceding this tenure consideration, student evaluations of Petitioner's teaching effectiveness averaged 3.15 versus a department average of 3.31. The vote of the tenured faculty members of the SMF Department concerning Petitioner's tenure was three for the granting of tenure, one against the granting of tenure and three for deferral for consideration again in one year. Chairman Griffith recommended that a decision on tenure be deferred for one year, as did the Dean of the College of Engineering and the Vice President for Academic Affairs.
Chairman Griffith's deferral recommendation was based upon the vote of the tenured faculty members, Petitioner's low attendance at faculty meetings and his opinion that the quality of Petitioner's teaching, research and service had declined. The Chairman was also concerned with Petitioner's conflicts and difficulties with other faculty members in the department.
Dean Kopp had several reasons for recommending deferral of tenure and communicated these reasons to Petitioner at a conference after receiving notice from Vice President Riggs that his tenure consideration would be deferred for a year. Dean Kopp was concerned that Petitioner's attempt to attain tenure before his fifth year at USF was premature and felt that the University administration would not approve tenure before five years absent an excellent recommendation from his departmental and college level peers. Dean Kopp also expressed his concern to Petitioner that Petitioner was having problems with other members of the faculty and that students had complained of Petitioner's unavailability on campus during regular working hours.
During Petitioner's deferral year, he filed a statement of concern with the College of Engineering Faculty Governance Committee, composed of two members from each department within the college. The two members from the SMF Department were Drs. Anderson and Kranc. This statement included twelve grievances, the majority of which contained allegations of wrongful actions by various SMF Department faculty members, including Dr. Anderson and the Chairman,
which allegedly adversely affected his first tenure consideration. A member of the Committee, Glenn Burdick, was appointed to investigate the charges and to attempt to reach some solution to resolve the differences. Burdick reached the conclusion that Petitioner had serious problems from outside sources and that such problems were making it difficult for him to act rationally within the SMF Department and causing personality problems within the department. Burdick proposed several alternatives to both Chairman Griffith and Petitioner, but Petitioner refused to accept Burdick's proposals, feeling that they amounted to a capitulation rather than a compromise. No final action or solution was ever reached by the Committee due to the promulgation of rules of procedure governing faculty grievances, commonly referred to as the "Wigginton Rules". At some point during the deliberations, two or three members of the Faculty Governance Committee expressed their opinion to Dean Kopp that Petitioner had outside personal difficulties which were upsetting him and that such difficulties resulted in his personality or emotional problems with others in the department.
During his fifth year of continuous employment at USF, Petitioner again submitted his application for tenure. The tenure packet lists the same ten published articles under the heading of "research and creative activities" as did the 1973/74 tenure packet. A summary of consolidated student evaluations of Petitioner's teaching for eight quarters through years 1971 through 1974 is contained in this second tenure packet. Other than Quarter I of the 1971/72 academic year where Petitioner's average score equals the department average, the summary shows Petitioner to be below the SMF Department average for the remaining seven quarters.
After Petitioner submitted his second tenure application, the Department Tenure Committee, consisting of the nine tenured faculty members of the SMF Department, met and discussed the procedure to be followed in voting. Apparently, the Chairman, although a tenured member of the faculty, was not present at this meeting. Within the following several days, the eight remaining faculty members submitted to the Chairman of the Faculty Committee, Dr. Anderson, two opinions or votes in addition to their vote on the tenure issue. One was a rating of Petitioner on a five-point scale in five different areas and the other was a yes or no answer to three questions. The average rating given to Petitioner by the eight faculty members was as follows: 3.4 in teaching effectiveness; 3.6 in research and creative activity; 2.9 in academic advisement; 2.9 in service; and 3.4 in overall quality. The first yes/no question was whether Petitioner's talents and resources fit the needs, plans and goals of the department and college. All eight tenured faculty members answered this question affirmatively. As to whether Petitioner's health, habits and character were such as to indicate maintenance of the level and quality of his performance, three members answered yes and five members answered no. One member answered yes and seven answered no to the question of whether Petitioner works in reasonable harmony with his colleagues and students. Although the peer evaluation form utilized by the Committee requested an explanation if negative answers were given on the three questions, the Committee provided no such explanations before sending the results to Chairman Anderson. The ultimate vote of the Committee, including the vote of the Chairman, was three to grant tenure, four to defer tenure and two to deny tenure. Having received and tabulated the above responses, Dr. Anderson filled out the forms and forwarded the tenure packet to Chairman Griffith.
Chairman Griffith completed Part IV of the form, which called for an approximate assignment of duties, a rating on a five-point scale and a yes or no answer to the same three questions discussed above. Petitioner's assignment of duties was listed as 75 percent undergraduate teaching and 25 percent graduate
teaching, for which Griffith rated him a three in teaching effectiveness. Griffith gave a yes answer to the question concerning Petitioner's talents and resources fitting the department and college needs, plans and goals. To the questions regarding Petitioner's ability to maintain the level and quality of his performance and harmonious working with colleagues and students, the Chairman answered no. In explanation, the Chairman stated:
"The candidate possesses superior technical ability as viewed by both the tenured departmental faculty and shared by the Department Chairperson. Unfortunately, the interpersonal relationships between the candidate and other faculty and with the Chairman have deteriorated. Attempts to bring reconciliation have not been successful."
Having considered the responses of the tenured faculty, Chairman Griffith forwarded the tenure documents to the Dean with a recommendation that Petitioner be denied the status of tenure.
When the documents were received by Dean Kopp, he noted the lack of explanations for the faculty members' negative answers to the two questions discussed above. The office of the Vice President for Academic Affairs, upon Dean Kopps' inquiry, verified that explanations were required for negative responses. The documents were thus returned by the Dean to the department for completion.
Having heard that his tenure papers had been returned for additional information, Petitioner made an appointment with Dean Kopp to discuss the matter. The Dean informed Petitioner of the votes of the tenured faculty and the answers regarding the three yes/no questions. Dean Kopp offered to bring Chairman Griffith into the meeting, but Petitioner stated that he did not wish to discuss the matter with the Chairman. Petitioner expressed his opinion to the Dean that the faculty was against him because he "had so much on them", referring to extra-marital affairs on the part of two or three of the faculty members.
Meanwhile, the tenure documents having been returned to Dr. Anderson for completion, he and one or two other members of the tenured faculty prepared draft summary explanations for the negative answers given to the two questions discussed above. These summaries were then submitted to the other faculty members with instructions to write an individual explanation if they disagreed with the summary explanation. One individual explanation was written on the question regarding Petitioner's health, habits and character and two individual explanations were written regarding Petitioner's working harmoniously with colleagues and students. The explanations provided contain statements that Petitioner expresses an unduly negative and bitter attitude toward some of his colleagues and superiors, and that he is unavailable to and uncooperative with students.
Chairman Griffith also added to his explanation a listing of specific instances. These include Petitioner's low attendance at department and college faculty meetings, his decline in publications and research and his low teaching evaluations by students, noting that for Quarter I of 1974, Petitioner rated eighth out of eleven in the department, the three lower ratings going to two nontenured faculty members and one adjunct teacher. The completed tenure documents were then returned to Dean Kopp.
After his review of the completed tenure documents, Dean Kopp recommended that Petitioner be denied the status of tenure. This recommendation was based upon a consideration of the explanations furnished by the department; Petitioner's decline in teaching and research performance; Petitioner's inability to work harmoniously with other faculty members and his Chairman, thus creating disunity within the department which could affect accreditation; complaints from students and shop personnel regarding Petitioner's unavailability; and the fact that Petitioner's area, structures, was the area lowest in priority in the budget. Petitioner was informed of Dean Kopp's decision at a short meeting with him and Dr. Griffith on March 4, 1975, where upon he was provided a copy of the tenure document.
On March 5, 1975, Dean Kopp transferred the tenure documents, along with his recommendation of denial, to Dr. Carl Riggs, Vice President for Academic Affairs. Dr. Riggs recommended that tenure be denied and timely notified Petitioner that his employment contract would not be renewed after June 17, 1976. The reasons for this decision included that Petitioner had not made demonstrable progress in improving the deficiencies resulting in his first tenure deferral; that Petitioner was not recommended for tenure by his peers, his Chairman or his Dean; and the reasons contained in the summary and individual explanations in his tenure file.
Informal grievance proceedings within the University were thereafter instituted by Petitioner. The matter not having been resolved by such informal means, President Mackey ordered that the Petitioner's complaint be considered in a plenary proceeding as provided by Section 6C-5.08 of the Florida Administrative Code. The complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was assigned to conduct the plenary proceedings.
The evidence adduced at the hearing illustrates that when Petitioner first began his duties at USF, he was an enthusiastic and dedicated teacher. However, after his first year, his student evaluations declined below the departmental average. Almost all faculty members heard complaints from either students or shop personnel regarding Petitioner's unavailability. During the year of Petitioner's deferral, Dean Kopp checked Petitioner's office over 150 times and only found Petitioner in four or five times. Chairman Griffith also rarely found Petitioner in his office. Two graduate students, Frank Gallant and Harry Long, had difficulties getting Petitioner to read their thesis or set a date for their oral examination. The majority of faculty members who testified at the hearing opined that Petitioner had the technical competency to be a highly effective teacher, but rated his teaching performance from good to below average.
In the area of research and other creative activity, the evidence shows that Petitioner was extremely active between the time of obtaining his doctoral degree and coming to USF. As noted above, he has published ten articles six or seven before coming to USF and three or four while at USF, two of which were based upon his earlier works. During his first year at USF he devoted some time to building up a research structures laboratory. Petitioner also did a considerable amount of work as a paid consultant on low cost dome structures. Petitioner did some creative work on a concrete dome project at USF which was never completed because of a lack of funding. While the project was underway, shop personnel complained to the Dean, the Chairman and almost all faculty members of the SMF Department of Petitioner's unavailability for consultation and advice.
Other than that contained in his tenure packet, Petitioner failed to produce any evidence regarding his competencies in the area of service.
The overwhelming weight of the evidence illustrates that Petitioner has not worked harmoniously with other members of the faculty or his Chairman. His personal confrontation and clashes with various faculty members were general knowledge among the faculty and caused some disruption in the functioning of the SMF Department. He refused to discuss his differences with the Department Chairman and there is no evidence of any effort on Petitioner's behalf to resolve those differences with the Chairman. Perceiving the difficulties he was having with his Chairman, Petitioner requested the Dean to transfer him to another department. The Dean informed him that he had no other open positions. He declined to attend at least half the departmental and college faculty meetings and to consult with his Chairman regarding his annual evaluations.
Petitioner has performed a considerable amount of consulting work for outside firms during his employment at USF. He has done consulting work for at least thirteen firms and has been on a $1,000.00 per month retainer as a consultant for Seaman Building Systems in Bradenton for the past several years. Contrary to University policy, Petitioner has never sought or received permission to accept outside employment. Petitioner testified that he has only missed two classes as a result of his outside consulting work, and that he ultimately made up these two classes.
Domestic problems have been experienced by Petitioner since 1971. He and his wife were separated in 1971 and were subsequently divorced. He later obtained custody of one of his daughters and has had the responsibility of picking up one or both daughters from school. He was at one time given permission by Dean Kopp to leave the University at 2:00 p.m. each day in order to transport his daughters from school. Petitioner testified that he arrives at USF at 7:30 a.m. each day and leaves at 2:00 p.m. He further testified that he posts his office hours during the first class period of each quarter.
CONCLUSIONS OF LAW
The prime issue in this case is whether or not the decision to deny Petitioner tenure was based upon constitutionally impermissible reasons or was a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations.
Contending that the tenure decision in his case was wrongful, Petitioner alleges procedural irregularities in the tenure recommendation process and contends that the decision to deny tenure was not in compliance with written standards and criteria and/or was based upon constitutionally impermissible reasons.
Tenure is defined in Rule 6C-5.06(1)(a), F.A.C., as "that condition attained by the faculty member through highly competent teaching and research or other scholarly activities, service, and contributions to the university and to society." In addition, Rule 6C-5.06(5) provides that
"Nomination of a faculty member for tenure shall signify the president is satisfied the candidate will continue to make significant professional contributions to the institution and the academic community generally."
Thus, in order to successfully challenge an adverse decision regarding tenure, the faculty member has the burden of proving that he is "highly competent" in the areas evaluated, that he will "continue to make significant professional contributions" and that his tenure was denied because of either constitutionally impermissible reasons or noncompliance with written standards, criteria or procedures.
The undersigned Hearing Officer concludes that Petitioner has failed in his burden of proof in this case. There was absolutely no evidence that Petitioner's performance is "highly competent" in the areas of teaching, research or service. Although the evidence indicates that Petitioner possesses the technical competency to be effective in these areas, there is no evidence that he has performed highly competently at USF for the past three years. While his peers rated him as 3.4 on a five-point scale in overall quality, which would indicate performance of a slightly better than average quality; such rating must be tempered by the actual tenure vote of his peers, their negative response to pertinent questions and explanations therefore, the Chairman's vote and explanations and the Dean's recommendation. As to teaching, the preponderance of the evidence adduced at the hearing shows Petitioner to be a below average teacher, taking into account his student evaluations and his unavailability to students and others with whom he is assigned to work, advise, and counsel.
While the Hearing Officer certainly understands and appreciates the responsibilities and duties of a working parent, Petitioner's unavailability cannot be so readily explained away, especially in light of the fact that Petitioner has found time in his schedule to do a large amount of outside consulting work. Nor has Petitioner shown that his research and other creative activities have been of a highly competent quality since coming to USF. The same is true in the area of service.
The definition of "highly competent" is necessarily a subjective one, as is the application of standards and criteria for tenure. Each person who plays a part in the tenure recommendation process must exercise some degree of discretion. It is only when that discretion is abused or exercised arbitrarily that a noneducational tribunal should interfere with the process of tenure recommendation. In this case, there has been no showing that such an abuse of discretion occurred on behalf of anyone who played a part in the tenure recommendation process.
Petitioner's allegations concerning the adverse effect upon the tenure decision of his having filed a grievance are simply not borne out by the record. Many SMF Department tenured faculty members knew little or nothing about the grievance process. Those who did know about it testified it played no part in their decision. Petitioner never requested Dr. Anderson or Dr. Kranc to recuse themselves from the Faculty Governance Committee. If the grievance procedure had any effect at all upon the tenure process, it was only to substantiate the feeling of some faculty members and administrators that Petitioner was having difficulties with some members of the department, a fact with which they had independent knowledge notwithstanding the statement of concern filed by Petitioner.
Whether or not a faculty member works harmoniously within the department is a proper consideration along, with performance in the areas of teaching, research and service, in tenure recommendations. Such a consideration has been a part of the SMF Department policy since Petitioner first came to USF. The greater weight of the evidence in this cause supports the conclusions of seven of the eight tenured faculty members, the Department Chairman and the
College Dean that Petitioner has not worked in reasonable harmony with his colleagues and students.
Finally, as to the alleged procedural irregularities concerning the tenure process, the Petitioner has again failed in his burden of proof.
Although the written explanations in support of negative answers to questions on the tenure document should have been completed at the time the answers and votes were originally given, Petitioner has shown no prejudice in the fact that they were written subsequently. No vote was changed and each faculty member was given the opportunity to write an individual explanation. Petitioner complains that the "explanations" in his tenure documents were nothing more than accusations based upon hearsay and opinion, and that he was never given the opportunity to rebut then. However, the evidence shows that he was given the opportunity to review the explanations and entire tenure packet the day before Dean Kopp forwarded his recommendation and the tenure documents to the Office of the Vice President for Academic Affairs. He thus had an opportunity to submit his rebuttal to the Dean and to Dr. Riggs before a decision on tenure was reached. And, of course, the hearing resulting in this Recommended Order afforded Petitioner ample opportunity to rebut the explanations which are a part of his tenure file.
Nor was Petitioner prejudiced by the fact that the Chairman cast two votes--one as a tenured faculty member and one as Chairman of the Department. The rules provide that the opinions of the tenured faculty shall be obtained in a secret poll and that the results of the balloting shall be forwarded with the recommendation of the department or division administrator to the head of the college and finally to the president or his designated representative. F.A.C. 6C-5.06(4)(a). Chairman Griffith is a tenured faculty member and is entitled to vote as such. He did not participate in the committee ratings or discussions regarding Petitioner. Additionally, he testified that he applied two different standards when voting as a faculty member and as the Chairman. In his former capacity, he made a personal assessment of the candidate without regard to the votes of other faculty members. As Chairman, he considered the votes and opinions of other tenured members of the SMF Department faculty.
In conclusion, it is found that Petitioner failed in his burden to affirmatively show that he has performed highly competently in the areas of teaching, research or other creative activities and service. Nor has Petitioner shown that his denial of tenure was based upon constitutionally impermissible reasons or was a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations.
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 that the tenure decision reviewed herein was unlawfully reached.
Respectfully submitted and entered this 28th day of May, 1976, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
President Cecil Mackey Office of the President University of South Florida Tampa, Florida 33620
David A. Maney, Esquire Gordon and Maney, P.A.
Suite 2919, First Financial Tower Tampa, Florida 33602
D. Frank Winkles, Esquire Shackleford, Farrior, Stallings Evans First Financial Tower
Post Office Box 3324 Tampa, Florida 33601
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1976 | Final Order filed. |
| May 28, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 22, 1976 | Agency Final Order | |
| May 28, 1976 | Recommended Order | Petitioner failed to prove denial of tenure based on constitutionally impermissible grounds or failure to comply with written standards. Dismiss. |
