STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILLIP G. ORTWEIN, )
)
Petitioner, )
)
vs. ) CASE NO. 76-2132
) UNIVERSITY OF SOUTH FLORIDA )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, Division of Administrative Hearings by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case on June 9, 1977 in Tampa, Florida.
APPEARANCES
For Petitioner: Donald Eugene Mason, Esquire
The First State Bank Building 7900 Northeast 2nd Avenue Miami, Florida 33138
For Respondent: William E. Sizemore, Esquire
Post Office Box 3324 Tampa, Florida 33601
By Grievance Complaint filed 11/18/76 Phillip G. Ortwein, Petitioner, by and through his attorney, seeks to have the termination of Petitioner from his position as Associate Professor, by non-renewal of his contract, set aside and Ortwein returned to his former position on the faculty. As grounds there for it is alleged that Petitioner's termination was in violation of the policies and procedures of the State of Florida Board of Regents and the University of South Florida (USF); that the reasons given for terminating Ortwein were false or improper; arid that the USF, its administrators and employees, engaged in a course of conduct constituting an intentional and malicious attempt to destroy Ortwein and deprive and interfere with his rights. Answer denying these allegations was duly filed by Respondent. Three witnesses, including Petitioner, were called by the Petitioner; 2 witnesses were called by Respondent; and 28 exhibits, including the deposition of Dean Edwin P. Martin, were admitted into evidence.
FINDINGS OF FACT
Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967.
On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to
complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis.
His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4).
His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5).
By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose.
On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure.
By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970.
Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided.
Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner.
By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971.
Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971.
The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975.
The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed.
By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions.
Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors.
Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
CONCLUSIONS OF LAW
The only notice of non-renewal relevant to these proceedings was the misdated letter of December 14, 1970 signed by Harris W. Dean, Acting President USF. Any issue respecting the requirement that Petitioner be given a hearing because the reasons given for his dismissal constitute the taking of a property right were resolved against Petitioner in Ortwein v. Mackey 511 F2d 696 (5th Cir. 1975) where the court held:
"Mr. Ortwein is not entitled upon federal constitutional grounds to a hearing at which he may contest the reasons made
the basis for his discharge."
Rules and regulations pertaining to the termination of non-tenured employees are contained in Florida Administrative Code and Rule 6C-5.08(4) provides in part:
"(c) Non-renewal of Contract
If the president determines in any individual case that he is not prepared to make a favorable decision with respect to the renewal of an employment contract of a non-tenured faculty member, or if
he receives a recommendation from the appropriate administrative officer or faculty member not to be renewed, the President or his designee shall give notice of such determination or recom-
mendation in writing to the faculty member within the time frames prescribed by substantive rules adopted by the Board of Regents.
The notice provided in subparagraph (1) shall recite the expiration date of the faculty member's current contract and advise that it will not be renewed for the ensuing year in the absence of a subsequent contrary determination. The reasons which contributed to the decision or to the recommendation of non-renewal shall be furnished to the faculty member in writing only upon his written request there for filed with the President within ten (10) days after receipt of the notice provided in subparagraph (1).
Upon giving the notice provided in sub- paragraph (1) the President or his designee shall promptly undertake to confer informally with the faculty member for the purpose of informing him fully of the reasons assigned as grounds for the recommendation of non- renewal.
When either the President or the faculty member concludes that further informal conference would serve no useful purpose he shall notify the other that the confer- ence proceeding has been concluded.
Any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges:
That the recommendation is based on constitutional impermissible reasons, or
That it violates his property rights, or
That it is not in compliance with written standards, criteria, or procedures established by the Board of Regents or University Regulations may within twenty days after receipt of the notice of non- renewal initiate his grievance by filing with the President a complaint conforming to the requirements of paragraph (a) of subsection (3) or this rule.
Upon receipt of the complaint the President, his designee, or at the option of grievant the appropriate committee elected directly
by the faculty or selected by elected faculty representatives shall make a thorough investigation of the allegations contained therein and see [sic] to resolve the matter by informal interview, conferences and dis- cussions with grievant and the administrative office or faculty committees involved. A report of such investigation shall be made
to the President within 30 days from receipt of the complaint unless the time is extended
by mutual consent of all parties concerned.
If an attempt to resolve the grievance by the informal means provided in subparagraph
(6) fails or the President is not prepared to render a decision favorable to grievant, the President shall order that the complaint be considered and disposed of in a plenary proceeding to be conducted in accordance with subsection (3) of this rule."
Although Petitioner alleged Respondent failed to comply with the written standards, criteria or procedures prescribed by the Board of Regents, no evidence to support this allegation was presented other than the ineffective notices of non-reappointment submitted by Bowers and Martin.
The effective notice of non-renewal was transmitted by the President USF in accordance with the above rule. Staff Hand-book 1970-1971 (Exhibit 25) contains the following provisions regarding termination of non-tenured faculty appointment:
"1. The President may, at his discretion, terminate the employment of a non-tenured faculty member.
Notice of non-reappointment or of intention not
to reappoint, shall be given in writing in accordance with the following standards: Not later than March 1, of the first academic year of service, if the appoint- ment expires at the end of that year, or, if a one-year appointment terminates during an academic year, at least three months in advance of its termination; not later than December 15 of the second academic year of service, if the appointment expires at the end of that year; or at least twelve months before the expiration of an appointment after two or more years in the institution. Interim appointees may not be guaranteed employment beyond the date of expiration of the con- tract."
Here Petitioner had been employed by USF for more than two years at the time the notice of non-renewal was forwarded to him on December 14, 1970. This letter gave Petitioner more than the twelve months notice of non-renewal required by the above quoted provisions of the Staff Handbook.
At the close of Petitioner's case Respondent moved for a directed verdict. The parties were advised that the Hearing Officer, although unable to grant such a motion because that would constitute final action which was the perogative of the agency head, could, at this point in the proceedings, advise them that a recommendation to dismiss the grievant's complaint would be made by the Hearing Officer, and if so made Respondent could elect to present or not present evidence. After hearing argument on the motion from both sides, ruling on the motion was reserved.
Petitioner argued that when his record was referred to the newly formed tenure committee for a recommendation he should thereafter be treated as a tenured rather than as a non-tenured employee. If this were so every member of the instructional staff would acquire tenure whenever their names were submitted to the academic panel entrusted with the duty to make recommendations regarding tenure. However, if Petitioner's argument was that by submitting his
name to the tenure committee, Respondent was thereafter required to treat Petitioner as one being denied tenure, this would not help Petitioner here. In order to be entitled to a hearing one denied tenure must allege the refusal to grant tenure was because of constitutionally impermissible reasons or as a result of non-compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations. Since Petitioner was not eligible for tenure when his name was submitted to the tenure committee he could not have been granted tenure had the committee so recommended. The Director, Physical Education Division, was not precluded from getting faculty input before making his recommendation regarding Petitioner's reappointment, and taking this step did not place Petitioner in a position of one denied tenure.
With respect to the allegation that Respondent, through its officers and employees, engaged in a course of conduct constituting an intentional and malicious attempt to destroy Petitioner, it is sufficient to say that no substantial and competent evidence was presented to support this allegation.
From the foregoing it is concluded that Respondent's motion for a directed verdict at the close of Petitioner's case should be granted as no allegation was made that the non-reappointment of Petitioner was by reason of constitutionally impermissible reasons, nor was any evidence presented that, in issuing the notice of non-reappointment on December 14, 1970, Respondent failed to follow the prescribed rules and regulations.
It is further concluded that the evidence presented, if considered in the light of an appeal from a denial of tenure, was that the reasons for denying tenure or reappointment were supported by competent and substantial evidence.
It is therefore,
RECOMMENDED that the grievance complaint filed on behalf of Phillip G. Ortwein be dismissed.
DONE and ENTERED this 8th day of July, 1977, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1977.
COPIES FURNISHED:
William E. Sizemore, Esquire Post Office Box 3324
Tampa, Florida 33601
Donald E. Mason, Esquire First State Bank Building 6th Floor
7900 Northeast 2nd Avenue Miami, Florida 33138
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILLIP G. ORTWEIN
Petitioner,
vs. CASE NO. 76-2132
UNIVERSITY OF SOUTH FLORIDA,
Respondent.
/
FINAL ORDER
This matter comes before me, as University President, for final decision and disposition under the Florida Administrative Procedure Act, F.S., Ch. 120.
I have before me the record in this case, which includes, in particular, the pleadings of the parties, the trial transcript, including Exhibits 1-29, the hearing officer's recommended order and the Petitioner's exceptions to that order. I have read and studied each of these documents.
With respect to the Petitioner's exceptions to the recommended order, which were served on August 1, 1977, oral argument, pursuant to Petitioner's request, was heard on September 13, 1977, and I will discuss each exception in the succeeding text of this order.
The hearing officer's recommended order sets forth findings of fact which are hereby adopted as findings of fact for the purpose of this final order.
FINDINGS OF FACT
Phillip Ortwein was employed by USF December 1, 1966, on a 7-month contract expiring June 30, 1967.
On his application for employment (Exhibit 16), he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis.
His contract was renewed on July 1, 1967, for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4).
His contract was again renewed July 1, 1968, for the 12-month period ending 6/30/69 (Exhibit 4)
By memo dated March 3, 1969, Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice, Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educational Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose.
On January 27, 1969, the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time, Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure.
By letter dated December 22, 1969, Dean Edwin P. Martin, following a discussion with 0rtwein, advised Petitioner that, due to an apparent misunderstanding by 0rtwein regarding Bowers' notice, he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970.
Following further discussion with Bowers, Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided.
Due to administrative error, Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7), renewing Petitioner's contract from September 18, 1970, to June 13, 1971, was forwarded to and accepted by Petitioner. [These dates are the actual dates on the face of Exhibit 7. The recommended order lists the beginning date as September 18, 1971, which appears to be a typographical error.]
By letter to Ortwein dated October 9, 1970 (Exhibit 11), Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated [sic] to June 13, 1971.
Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of Quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment-Reappointment dated December 14, 1970, extended 0rtwein's appointment to December 16, 1971.
The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975.
The letter of termination (or non-reappointment) dated December 14, 1970, was the first notice received by Respondent signed by the President of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed.
By letter of December 10, 1970 (Exhibit 13), Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were:
Lack of performance in the area of functional physical education;
Contribution limited to area of tennis;
No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education.
By memo dated March 3, 1969, Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice, Petitioner went to the Director of the Physical Education Division who had authored the notice to see there was any hope his contract would be renewed.
The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Education Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose.
On January 27,1969, the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time, Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure.
By letter dated December 22, 1969, Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bower's notice, he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970.
Following further discussion with Bower, Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided.
Due to administration error, Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7), renewing Petitioner's contract from September 18, 1970, to June 13, 1971, was forwarded to and accepted by Petitioner. [These dates are the actual dates on the beginning date as September 18, 1971, which appears to be a typographical error.]
By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 70) served to extend Petitioner's termination dated [sic] to June 13, 1971.
Exhibit 12, letter of December 14, 1970 incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of the Quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment- Reappointment dated December 16, 1971.
The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975.
The letter of termination (or non-reappointment) dated December 14, 1970, was the first notice received by Respondent signed by the President of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed.
By letter of December 10, 1970 (Exhibit 13), Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were:
(1) Lack of performance in the area of functional physical education; (2) Contributions limited to area of tennis;
(3) No contributions to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstention.
Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors.
Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioner; or of any conflict with any religious, political or social philosophies between them and Petitions? In fact all witnesses testified no such personal difficulties existed or were apparent.
The Petitioner's exceptions to the recommended order do not dispute the validity of any of these findings. Of the four numbered exceptions, two cite alleged error by the hearing officer when he failed to make findings of fact. The remaining two numbered exceptions cite alleged errors in the legal conclusions reached by the hearing officer.
The first exception to the factual findings in there commended order alleges error by the failure to find, as a fact, that Petitioner was misled when he was initially employed by the University. The second exception to the factual findings in the recommended order alleges error by the failure to find, as a fact, that the University misrepresented material facts to the Petitioner at the time of his employment.
After reading the record and considering the oral argument of the parties, I find that there is no basis in the record for these two exceptions. In fact, the record leads to the opposite conclusions.
Petitioner must bear some responsibility for making reasonable inquiry into the facts and circumstances of his employment by the University. His testimony establishes that he had sufficient knowledge of the academic community and personal competency to make such inquiry and either did not do so or chose to ignore that which a reasonable person would have taken into account.
His testimony further establishes that Mr. Ortwein knew that he had a three-year period during which he would work at the University without the job protection of tenure. He also knew that his first job was in a position for which he was offered a contract of seven months duration which contract was subject to renewal on an annual basis by the University. Other parts of the Petitioner's testimony also have bearing on whether he was misled or whether there was misrepresentation of material facts at the time of his employment by the University. He knew that attaining a doctoral degree was important to the University and that the lack of it could cause him not to be granted tenure.
Similarly, before he gave up his tenured position with the School Board of Hillsborough County, he did not either inquire whether he was progressing toward tenure or exhibit any signs of anxiety about giving up his tenured position.
In support of his theory of misrepresentation of material fact or of the University having misled him, the Petitioner points to the testimony of Dr.
Bowers' superior, Dean Martin, to the effect that he viewed Mr. Ortwein as a temporary faculty member. That may well have been Dean Martin's view but it is clear from the record that Dean Martin did not communicate this view to Dr.
Bowers who had the direct contact with the Petitioner. On this point, the testimony is that Dean Martin "assumed" that Dr. Bowers shared his view.
Dr. Bowers' actions in placing the Petitioner in a tenure-earning line suggest that he viewed him to be a faculty member who would receive consideration for permanent or tenured status at some point in time.
The only testimony in the record which supports the theory behind Petitioner's proposed exceptions is that of Dean Martin about the discussions relevant to the 1968-69 contract for Petitioner. Here Dean Martin suggests that he told Dr. Bowers that the Petitioner was not qualified to be a permanent member of the faculty. Dr. Bowers' testimony is that he does not remember Dean Martin having had this conversation with him. Dr. Bowers' actions toward Petitioner support his testimony that he did not know that Ortwein was other than a faculty member working toward permanent status. In any event, even if Dr. Bowers knew, at the time Petitioner's employment contract was renewed, that the Petitioner was not qualified to be considered for tenure, his failure to tell Petitioner of that fact was not a misrepresentation or a misleading act or omission which occurred at the time of the Petitioner's employment by the University. Further, there is evidence in the record to suggest that Dean Martin's view of the Petitioner's qualifications for tenure was not the prevailing one.
Thus, I decline to enter as a finding of fact that the Petitioner was misled at the time of his employment by the University. I also decline to enter as a finding of fact that the University misrepresented material facts to the Petitioner at the time of his employment by the University.
CONCLUSIONS OF LAW
Based on these findings of fact, 1 enter these conclusions of law:
Petitioner was a non-tenured faculty member employed on a year-to-year contract at the University of South Florida. He was employed in a position leading to his being eligible to be considered for tenure.
The misdated letter of December 14, 1970 [Exhibit 12], is a legally sufficient notice to the Petitioner that his employment contract would not be renewed by the University.
The applicable administrative rule pertaining to the non-renewal of non- tenured employees is contained in Florida Administrative Code, 6C-5.08(4) which provides in part:
"(c) Non-renewal of Contract
If the President determines in any individual case that he is not prepared to make a favorable decision with respect to the renewal of an employment contract of a non-tenured faculty member, or if he receives a recommendation
from the appropriate administrative officer or faculty member not to be renewed, the President or his designee shall give notice of such determination or recommendation in writing to the faculty member within the time frames prescribed by substantive rules adopted by the Board of Regents.
The notice provided in subparagraph (1) shall recite the expiration date of the faculty member's current contract and advise that it will not be renewed for the ensuing year in
the absence of a subsequent contrary determination.
The reasons which contributed to the decision or to the recommendation of non-renewal shall be furnished to the faculty member in writing only upon his written request therefor filed with the President within ten (10) days after receipt of the notice provided in subparagraph (1).
Upon giving the notice provided in subparagraph
the President or his designee shall promptly undertake to confer informally with the faculty member for the purpose of informing him fully of the reasons assigned as grounds for the recommendation of non-renewal.
When either the President or the faculty member concludes that further informal conference would serve no useful purpose he shall notify the other that the conference proceeding has been concluded.
Any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges:
That the recommendation is based on constitutional impermissible reasons, or
That it violates his property rights, or
That it is not in compliance with written standards, criteria, or procedures established by the Board of Regents or University Regulations may within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President a complaint conforming to the requirements of paragraph (a)
of subsection (3) of this rule.
Upon receipt of the complaint the President, his designee, or at the option of grievant the appropriate committee elected directly
by the faculty or selected by elected faculty representatives shall make a thorough investi- gation of the allegations contained therein
and see [sic] to resolve the matter by informal interview, conferences and discussions with grievant and the administrative office or faculty committees involved. A report of
such investigation shall be made to the President within 30 days from receipt of the complaint unless the time is extended by mutual consent of all parties concerned.
If an attempt to resolve the grievance by the informal means provided in subparagraph (6) fails or the President is not prepared to render a decision favorable to grievant, the President shall order that the complaint be considered and disposed of in a plenary proceeding to be conducted in accordance with subsection (3) of this rule."
The procedures described in this rule were followed in this case.
The University of South Florida Staff Handbook (1970-71)(Exhibit 25) contains the following provision regarding the non-renewal of the contracts of non-tenured faculty members:
"1. The President may, at his discretion, terminate the employment of a non-tenured faculty member. Notice of non-reappointment or of intention not to reappoint, shall be given in writing in accordance with the following standards: Not later than March 1, of the first academic year of service, if the appointment expires at the end of that year, or, if a one-year appointment terminates during an academic year, at least three months in advance of its termination; not later than December 15 of the second academic year of service, if the appointment expires at the end of that year; or at least twelve months before the expiration of an appointment after two or more years in the institution. Interim appointees
may not be guaranteed employment beyond the date of expiration of the contract.
When the notice of non-renewal was sent to Petitioner on December 14, 1970, he had been employed for two years or longer and was, therefore, entitled to one year's notice of non-renewal. He received the full measure of notice to which he was entitled under the applicable rule.
With respect to whether the Petitioner was entitled to a hearing to contest the taking of a property' right from him, the holding of the Fifth Circuit Court of Appeals is dispositive:
"Mr. Ortwein is not entitled upon federal constitutional grounds to a hearing at which he may contest the
reasons
made as the basis for his discharge." Ortwein v. Mackey, 511 F.2d 696 (1975).
No constitutionally impermissible reason caused or occasioned the decision not to renew the Petitioner's contract of employment with the University. There is no taint in the record of the existence of constitutionally impermissible reasons.
Although the Petitioner pled that the decision made about him was not in compliance with the written standard, criteria or procedures of the Board of Regents, there is no evidence in the record to support his claim. In other words, the University did not fail to follow Board of Regents written standards criteria and procedures.
Petitioner makes the argument that when Dr. Bowers submitted his name to the departmental tenure committee then the University was thereafter obliged to consider the Petitioner as a faculty member who had been denied tenure and, therefore, accord to him the procedural rights of such a faculty member. Petitioner's reliance on such an argument is misplaced. First, he did not plead that the University was estopped to deny to Petitioner the procedural rights of a faculty member who had been denied tenure. Second, neither Dr. Bowers nor Dean Martin could, as a matter of law, waive or abandon the rules of the Board of Regents which has the exclusive power to confer tenure on a faculty member. These rules do not confer upon a non-tenured faculty member whose contract is not being-renewed the right to a hearing to contest the factual basis for his discharge. The only right of a non-tenured faculty member to a hearing is that prescribed in Florida Administrative Code, 6C-5.08(4)(c). Beyond that, the
argument must fail for reasons of policy. The departmental tenure committee was the only committee of faculty members to which Dr. Bowers could turn for advice. That Dr. Bowers conferred with the committee is commendable. His having taken this step with respect to the Petitioner does not place Petitioner in the position of one denied tenure. To hold otherwise would be to confer tenure-like procedural protections on every faculty member whose name is submitted at the department or college level to a panel of peers for a recommendation as to whether the University should recommend to the Board of Regents that the faculty member be granted tenure. A full hearing is afforded to a faculty member about whom the University, through the Academic Vice President, does not recommend the conferring of tenure by the Board of Regents.
Petitioner excepts in his third numbered exception to the hearing officer's determination that Petitioner was unable to dispute the factual basis for his dismissal but was limited to question involving the procedures utilized.
Initially, I find no such ruling in the record. Nor do I find that the hearing officer excluded any evidence from the record. At oral argument, Petitioner's counsel agreed that he was able to adduce all of the evidence which he had available but says the hearing officer failed to accord it proper weight.
As a matter of law the Petitioner is not entitled to a bearing at which he can contest the factual basis of the reasons given for his discharge. Even if he is entitled to such a hearing, he was, by his own admissions, granted such a hearing. If Petitioner is considered as a faculty member denied tenure, there is competent, substantial evidence in the record to support the reasons for denying tenure.
There is competent substantial evidence in the record to support a decision that the Petitioner's contract should not be renewed. In reaching this conclusion, I expressly reject numbered exception flour in the Petitioner's exceptions to the hearing officer's recommended order.
There is not competent substantial evidence in the record to support the conclusion that the University, through its officers and employees, engaged in a course of conduct constituting an intentional and malicious attempt to destroy the Petitioner or his reputation.
There is not competent substantial evidence in the record to support the conclusion that the University, through its employees, misled the Petitioner or misrepresented material facts in its dealings with him.
CONCLUSIONS
It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency.
Done and ordered at Tampa, Florida, on September 14, 1977.
Wm. REECE SMITH JR.
President
| Issue Date | Proceedings |
|---|---|
| Sep. 23, 1977 | Final Order filed. |
| Jul. 08, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 14, 1977 | Agency Final Order | |
| Jul. 08, 1977 | Recommended Order | Petitioner was not discharged for unconstitutional reason or by misapplication of rules. Recommend dismissal. |
MIAMI-DADE COUNTY SCHOOL BOARD vs SUSAN L. DUERSON, 76-002132 (1976)
STEVE J. LONGARIELLO vs DADE COUNTY SCHOOL BOARD, 76-002132 (1976)
SCHOOL BOARD OF ST. JOHNS COUNTY vs ANA I. OQUENDO, 76-002132 (1976)
LEON COUNTY SCHOOL BOARD vs. DAVID B. CLARK, 76-002132 (1976)
DOUG JAMERSON, COMMISSIONER OF EDUCATION vs DEBORAH GREEN, 76-002132 (1976)
