STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARIA I. VERA, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1595
)
UNIVERSITY OF FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing Officer, William E. Williams, held a public hearing in this cause on October 25 and 26, 1979, in Gainesville, Florida.
APPEARANCES
For Petitioner: Selig I. Golden, Esquire
Post Office Box 1251 Gainesville, Florida 32602
For Respondent: Ashmum Brown, Esquire
University Attorney's Office
207 Tigert Hall University of Florida
Gainesville, Florida 32611
On or about July 12, 1979, Maria I. Vera ("Petitioner"), through her counsel, filed a Petition for Review of Agency Action with the Division of Administrative Hearings alleging that the University of Florida ("Respondent") had improperly denied her application for tenure, and demanded that she be awarded tenure, together with attorney's fees and costs. Respondent did not object to the direct filing of the petition with the Division of Administrative Hearings, and instead, answered the petition, essentially denying the material allegations thereof.
Petitioner contends that Respondent's denial of her tenure application was improper because she was not assigned any time during her term of employment for research; she affirmatively demonstrated that she was a good teacher; and Respondent failed to advise Petitioner that she was deficient in any requirement for tenure, and, therefore, Respondent's denial of the tenure application was violative of due process and all rules applicable to tenure applications.
Respondent denies that any rules were violated, and contends that Petitioner was advised of her deficiencies and failed to take necessary action to remedy them.
Final hearing in this cause was scheduled for October 25 and 26, 1979, by Notice of Hearing dated August 21, 1979. At the final hearing, Petitioner testified in her own behalf, and called Dr. John E. Adams, Dorothy Collins, Patricia Griffin, Dr. Estrella Acosta, Dr. Robert George Lucking, Jr., Roxanne
Dalton, Nancy McDonald, Dr. Roger Blashfield, Dr. Max Plutzky and Arthur L. Fabrick as her witnesses. In addition, Petitioner offered the depositions of Dr. Raymond Rosenburg and Dr. George Barnard, both of which were received into the record without objection. Petitioner offered Petitioner's exhibits 1 through 25, inclusive, each of which was received into evidence. Respondent called Gene Hemp, Dr. George Caranasos and Dr. John E. Adams as its witnesses, and offered Respondent's exhibits A through F, inclusive, each of which was received into evidence.
At the conclusion of the final hearing, counsel for both Petitioner and Respondent waived the requirement of Chapter 120, Florida Statutes, that a Recommended Order be entered by the hearing Officer within 30 days from conclusion of the final hearing.
FINDINGS OF FACT
Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field.
Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital.
As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida.
From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work
in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure.
In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching.
Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation.
With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship.
With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching
ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate".
Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured.
Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89.
After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion.
Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that:
As you are aware, a candidate for promotion or tenure should be highly qualified in at
least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average.
As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees.
Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings as jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes; Rule 6C1-7.31(1)(a), Florida Administrative Code; and Rule 6C- 5.08(3)(g)(11), Florida Administrative Code.
Section 241.731, Florida Statutes, provides that:
For the purpose of evaluating faculty members, the Board of Regents shall promulgate procedures for the assignment of duties and responsibilities to faculty members. These assigned duties or responsibilities shall be conveyed to each faculty member at the beginning of each academic term, in writing, by his departmental chairman or other appropriate university administrator making the assignment. In evaluating the competencies of a faculty member, primary assessment shall be in terms of his performance of the assigned duties and responsibilities, and such evaluation shall be given adequate consideration for the purpose of salary adjustments, promotions, reemployment, and tenure. A faculty member who is assigned full-time teaching duties as provided by law shall be rewarded with salary adjustments, promotions, reemployment, or tenure for meritorious teaching and other scholarly activities related thereto.
The Board of Regents shall insure that the following policies are implemented in
each institution in the state university system;
Flexible criteria for rewarding faculty members, consistent with the institution's educational goals and objectives, shall be established, which criteria shall include quality teaching as a major factor in determining salary adjustments, promotions, reemployment, or tenure.
Measures shall be taken to increase the recognition, reinforcements, and rewards given quality teaching. Such measures might include grants for professional development, curriculum improvement, and instructional innovation, as well as awards of varying kinds for meritorious teaching.
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. [Emphasis Added.]
Rule 6C-5.05(1), Florida Administrative Code, provides, in part, that:
Each faculty member, tenured and nontenured, shall be evaluated at least once annually on the basis of his or her individual total performance in fulfilling responsibilities to the university. The basic purpose of the evaluation is faculty improvement in the functions of teaching, research, service, and any other duties that may be assigned, with the resulting enhancement of learning, cultural advancement, and the production of new knowledge. This evaluation shall precede and be considered in recommendations and final decisions on tenure, promotions, and salary for tenured and non-tenured faculty members and on retention or non-renewal for non- tenured faculty members.
When first employed, each faculty member shall be apprised of what is expected of him
or her, generally, in terms of teaching, research and other creative activities, and service, and specifically if there are specific requirements and/or other duties involved. If and when these expectations change during the period of service of a faculty member, that faculty member shall be apprised of the change. [Emphasis Added.]
Rule 6C-5.05(2), Florida Administrative Code, provides as follows: Areas of Performance To Be [sic] Evaluated --
The performance of each faculty member shall be evaluated in each of the following areas
appropriate to the terms of employment:
Teaching - - Teaching involves the presentation of knowledge, information, and ideas by means-methods including lecture, discussion, assignment and recitation, demonstration, laboratory exercise, practical experience, direct consultation with students, etc. The utilization and effectiveness of each of these methods, when appropriate, shall be considered. The evaluation of the total effectiveness of each of these methods, when appropriate, shall be considered. The evaluation of the total effectiveness of teaching shall be related to approved written objectives of each course which shall be given to each class at the beginning of the quarter. Evaluation shall include consideration of:
Effectiveness of teaching related to knowledge and skills imparted that correspond with the objectives of the course; and
Effectiveness of teaching related to stimulation of the students' critical thinking and/or creative ability in light of the objectives of the course; and
The faculty members' adherence to accepted standards of professional behavior in meeting his responsibilities to his students.
Research and Other Creative Activities -- Contribution to the discovery of new knowledge [sic], development of new educational techniques, and other forms of creative activity shall be considered and evaluated. Evidence of research and other creative activity shall include, but not be limited to: published books; articles and papers in professional journals; musical compositions, paintings, sculpture; works of performing art; papers presented at meetings of professional societies; and current research and creative activity that has not yet resulted in publication, display, or performance. The evaluation shall include consideration of:
Productivity, including quality and quantity of what has been done during the year, and of the faculty member's long-term research and other creative programs and contributions; and
Recognition by the academic or professional community of what is done. In making judgments pertaining to the decision to award tenure, evaluation by qualified scholars in pertinent disciplines both within and outside the university, should be sought.
Service - - Service shall include but
not be limited to, service on departmental, college, and university committees, councils, and senates; service in appropriate professional organizations; involvements in the organization and expedition of meetings, symposia, conferences, workshops; participation in radio and television on local, state, and national governmental boards, agencies and commissions. Only those activities which are related to a person's field of expertise or to the mission of the university shall be evaluated. Evaluation of service shall include consideration of contribution to:
The orderly and effective functioning of the academic administrative unit (program, department, school, college) and/or the total university;
The university community; and
The local, state, regional, and national communities, including scholarly and professional associations. [Emphasis Added.]
Rule 6C-5.05(3), Florida Administrative Code, provides that:
Sources of Data for Evaluation -- Evaluation of a faculty member's performance shall include data from the following five sources where appropriate:
The Chairman of the faculty member's department or other administrative unit;
Faculty;
Students;
The faculty member being evaluated; and
Other university officials. [Emphasis Added.]
Rule 6C-5.05(4), Florida Administrative Code, provides that:
Methods of Evaluation -- All appropriate data and evaluations, qualifications and quantitative [sic], shall be collected by the chairman of the department of [sic] other appropriate administrator.
Chairman's Evaluation -- The chairman of the department of [sic] the administrator of
a comparable academic unit shall review an evaluate the Teaching, Research and Other Creative Activities, Service and Other University Duties of each member of that department during each academic year.
Faculty Evaluation -- Each University shall develop processes of evaluation by appropriate faculty of Teaching, Research and Other Creative Activities, Service and Other University Duties when appropriate.
Student Evaluation [sic] -- Students shall evaluate Teaching and, when
appropriate. [sic] Other University Duties. [sic] The teaching effectiveness of each faculty member may be evaluated in writing by students currently or previously enrolled in his or her classes.
Self Evaluation -- Each faculty member may provide an evaluation of each new area of his or her own total performance and submit the evaluation, along with any appropriate substantiating evidence, to the chairman of the department or other administrative unit.
Other University Officials -- A faculty member may be evaluated for duties performed under the supervision of Deans, Directors,
the Academic Vice President, or any other university official who may supervise the faculty member's activities. [Emphasis Added.]
Rule 6C-5.05(5), Florida Administrative Code, provides that:
Utilization of Evaluation
The chairman of each department or other administrative unit shall collect the evaluation data for each faculty member in
the department, which data shall be placed in the faculty member's personnel file. The chairman shall provide each faculty member with a written summary of these data on the individual faculty member and shall discuss them privately with the faculty member.
Existing evaluations and the data in the faculty member's personnel file upon which these evaluations are based shall be
considered in recommendations and final decisions on tenure, promotions, and salary for tenured and non-tenured faculty members.
The contents of the faculty evaluation file shall be confidential and shall not be disclosed except to the affected faculty member and those whose duties require access to the file in accordance with each university's evaluation procedures.
[Emphasis Added.]
Rule 6C-5.06, Florida Administrative Code, provides that:
Definition of Tenure of the Faculty
Preamble - Institutions of higher education are conducted for the common good. The common good depends upon the unfettered search for truth and its free exposition. Academic freedom and tenure exist, in order that society may have the benefit of honest judgment and independent criticism. The meaning of tenure in the academic community in the United States is simply a guarantee of
annual reappointment for faculty members until voluntary resignations, retirement, or removal for adequate cause. Tenure is 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. It assures the faculty member security of employment and immunity from position or belief which may be unpopular.
Tenure in the State University System --
A faculty member who has been granted tenure by the Board of Regents shall have the status of permanent member of the faculty and be in the continuing employment of the institution.
. . .
Granting of Tenure -- Upon nomination by the President, review by the Chancellor, and approval by the Board, tenure shall be
granted. Each nomination for tenure shall be acted upon with careful consideration being given to the qualifications of the faculty member, including evaluations by colleagues and the immediate superior. When one of the duties of the faculty member being nominated is teaching, the quality of the faculty member's teaching shall be gauged by the procedures outlined in these rules which govern faculty evaluation and improvement.
. . .
Eligibility for Tenure.
(a) Only those employees of the University System who are classified as full-time teaching research and extension faculty with the rank of assistant professor or above under the provisions of these rules which govern classifications are eligible for tenure. . . .
* * *
The faculty member considered for tenure normally shall hold the terminal degree in
the appropriate academic field.
A decision whether to nominate a faculty member for tenure shall normally be made
during the fifth year or at the option of the faculty member with the concurrence of the department chairperson during the sixth year of full-time service in a tenure-earning position in accordance with 6C5.06(4) (Procedure for Tenure Decisions). . . .
By the end of six years of service in a tenure-earning position in a state
university system institution, a faculty member shall be recommended for tenure or notice of termination shall be given in accordance with 6C-5.07 (Termination and
Non-Renewal of Faculty Appointments).
Procedure for Tenure Decisions
Tenure recommendations shall be based on the institution's evaluation procedures and shall originate with the appropriate
department or division officer, who shall obtain the opinions of the tenured faculty in the department or unit in a secret pool, the results of the balloting shall be forwarded with the recommendation of the appropriate department or division administrator to the head of the appropriate college, school, or division, for action, and to the president, or designated representative for action.
Affirmative recommendations for awarding tenure shall be submitted by the President to the Board of Regents following review by the Chancellor.
The faculty member shall be notified immediately in writing by the president of the final action taken on his or her nomination for tenure. [Emphasis Added.]
Rule 6C1-7.22(d), Florida Administrative Code, provides, in part, as follows:
Instructions who hold full-time, continuous teaching positions must, no later than the close of the fifth year of continuous employment, be recommended for promotion and tenure or be given the required one year notice of non-reappointment.
Rule 6C1-7.26, Florida Administrative Code, provides that:
Criteria for promotion or for granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to his performance of complete function [sic] and responsibilities as a member of the university community. These criteria recognize three broad categories of academic service as follows:
instruction, including regular classroom teaching, direction of theses and dissertations, academic advisement, extension activities, and all preparation for this work including study for [sic] to keep abreast of one's field.
research or other creative activity
public, professional, or university service
The work for which a faculty member is responsible as well as the state and nation should be made clear to him at the time of his employment, and shall be reviewed at
intervals since his work assignment may vary with the passage of time. This assignment shall also be specified at the time of recommendation of promotion and tenure and on the form used for this purpose. In most cases, all types of service will be expected, though the ratios may vary widely. As illustration [sic], a full time teacher will in most cases be expected to do some research and/or service work. On the other hand, there will be some research personnel who will do no teaching, and some professors, notably chairpersons of large departments, whose work will be largely administrative.
In most cases, promotion and tenure should require distinction in at least two of the three categories, one of which should be that of his primary responsibility, though merit should certainly be regarded as more important than variety of activity. "Distinction" here means appreciably better than the usual college faculty member of the candidate's present rank and field, and recommendation of promotion and tenure shall contain evidence that such a comparative judgment has been made. [Emphasis Added.]
Rule 6C-5.08(4)(a)(2), Florida Administrative Code, provides that:
Any faculty member who deems himself aggrieved by reason of the failure or refusal of the administration to grant him tenure or a tenure-related promotion 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, may initiate such grievances by filing with the president a complaint conforming to the requirements of paragraph
(a) of subsection (3) of this rule. [Emphasis Added.]
In proceedings such as the instant case, Rule 6C-5.08(3)(g)(4), Florida Administrative Code, provides that "[t]he burden of proof and the duty of going forward initially with the evidence shall be of [sic] the complainant.
. . ."
The record in this proceeding establishes, and Respondent has, in effect, conceded that Petitioner's performance of her clinical duties, in light of the unique organization and functioning of the social work staff in the Department of Psychiatry, College of Medicine, has been with the requisite "distinction" necessary to satisfy the "service" component of the tenure granting process.
With regard to the area of "reresearch or other creative activity", however, Petitioner has failed to establish, either qualitatively or
quantitatively, a sufficiently high degree of competence or "distinction" to justify the granting of her application for tenured status.
The final area to be evaluated in considering Petitioner's tenure application is that of "teaching" or "instruction". The statute and rules quoted above evince a clear legislative intent to stress quality teaching as a major factor in considering tenure applications. To facilitate this policy, a system of annual evaluations has been established to identify a teacher's areas of strength or weakness. These annual evaluations are required to be derived from a broad spectrum of sources, including department chairmen, faculty, students, other university officials, and the teacher seeking tenure. These evaluations are required to be reduced to writing, to be placed in the teacher's personnel file, and to be the subject of a private conference between a department chairman and the evaluated teacher. The obvious purpose of the statute and the rules and regulations promulgated pursuant thereto is to establish a teaching performance history of sufficient length to enable an informed decision to be made when the appropriate time arrives to evaluate a teacher's tenure application.
As indicated above, Petitioner in this case bears the burden of affirmatively demonstrating "distinction" in the area of teaching, which, in turn, requires a further comparison of Petitioner's ability with that of " . . . the usual college faculty member of (Petitioner's) present rank and field. . .
." Rule 6C1-7.26(2), Florida Administrative Code. This requirement presents two unique problems to the tenure-seeking instructor. First, the type of data necessary to make such a comparative demonstration would not ordinarily be available to an individual instructor seeking tenure. Additionally, if the employing institution, such as Respondent in this case, has the necessary data available in its files, that data is made confidential by the statutes and rules hereinabove quoted, and would, therefore, be unavailable for use by an instructor, such as Petitioner in this case in support of her tenure application.
The instant case is complicated even further by the fact that Respondent neither performed nor obtained any written evaluations of Petitioner's teaching ability between her initial employment in 1974 and the time her tenure application was considered in late 1978. Furthermore, the record in this proceeding establishes the clear inference that not only was Petitioner not evaluated, but that none of the other instructional staff in the Department of Psychiatry were evaluated during this period. Consequently, no competent comparative evaluation of Petitioner and her teaching peers can be made based upon Respondent's records.
Respondent attempted to overcome this problem by performing a "faculty evaluation" of the teaching ability of Petitioner and of those other faculty members being contemporaneously considered for tenure. So far as can be gleaned from the record in this proceeding, this evaluation did not cover the entire period of Petitioner's employment with Respondent, and further, did not confine itself to a comparison of Petitioner's teaching ability with that of " . . .the usual college faculty member of the candidate's present rank and field . . ." Finally, while the aforementioned "faculty evaluation" might serve to fulfill the requirements of Rule 6C5.06(4)(a), Florida Administrative Code, concerning obtaining the opinions of tenured departmental faculty, it cannot substitute for the more thoroughgoing, long-germ evaluation requirements of the various other rules and regulations hereinabove cited.
In summary, the rules and regulations of the Board of Regents and the University of Florida concerning the evaluation and granting of tenure applications require the almost total dedication of faculty members to the goals and ideals of the university in order to obtain tenured status. To require a lesser standard of compliance by the university with these same rules and regulations would result in patient unfairness to the tenure-seeker. In short, Respondent in this case should not be allowed to fail in its duty to evaluate Petitioner on an annual basis, and then, in considering Petitioner's tenure application, at a time when she is required to either be granted tenure or discharged as a university employee, raise the question of her teaching ability for the first time. Accordingly, it is concluded as a matter of law, that Respondent's action in denying Petitioner's application for tenure, at least insofar as the "teaching" component is concerned, was the direct result of Respondent's non-compliance with written standards, criteria and procedures prescribed by the Board of Regents and in rules adopted by the University of Florida itself.
Notwithstanding the foregoing findings, there is insufficient evidence in the record in this proceeding to justify an outright award of tenure to Petitioner. Accordingly, in light of Respondent's failure to perform its evaluative respondibilities outlined in the rules and regulations hereinabove set forth, and also in light of the fact that the time period for Petitioner being granted tenure or being discharged as a university employee is fast approaching, Petitioner's contract as a non-tenured employee of the University of Florida should be extended for at least one year, or such longer time as may be necessary for Respondent to fully evaluate her teaching performance in accordance with the applicable statutes, rules and regulations set forth in this Recommended Order.
Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the
University of Florida requiring that Petitioner's appointment as a non-tenured
social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980.
COPIES FURNISHED:
Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602
Ashmun Brown, Esquire University Attorney's Office
207 Tigert Hall University of Florida
Gainesville, Florida 32611
| Issue Date | Proceedings |
|---|---|
| Sep. 26, 1980 | Final Order filed. |
| Feb. 20, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 24, 1980 | Agency Final Order | |
| Feb. 20, 1980 | Recommended Order | Respondent should not categorically deny tenure to Petitioner without giving her another year or more in which to be evaluated. |
