STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ERB FONTENOT, )
)
Petitioner, )
)
vs. ) Case No. 85-3843
)
FLORIDA STATE UNIVERSITY, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above-captioned matter, after due notice, in Tallahassee, Florida, on August 25-26, 1986, before Thomas C. Oldham, Hearing Officer.
APPEARANCES
For Petitioner: N. Stephen Turner, Esquire
Post Office Drawer 11300 Tallahassee, Florida 32301
For Respondent: Gerald B. Jaski, Esquire
Linda C. Schmidt, Esquire Associate University Attorney Florida State University
311 Hecht House Tallahassee, Florida 32306
PRELIMINARY MATTERS
This proceeding was initiated by a petition in which Petitioner generally alleged that he was relieved of certain of his administrative duties and responsibilities on September 25, 1985, and required to assume a regular teaching faculty role for approximately 50 percent of his time, which constituted a de facto demotion without just cause or due process. He further alleged that his career as an administrator had been jeopardized and discredited and that his ability to advance professionally and obtain salary increases would be irreparably impaired. He further claimed that he had been singled out for disparate treatment, and that the action against him was retaliatory on the part of the Interim Dean of the College of Education. The
petition seeks restoration as a full-time professional staff member at Florida State University.
The petition was referred to the Division of Administrative Hearings by the President of Respondent Florida State University for the appointment of a Hearing Officer. Pursuant to that request, a formal hearing was conducted on the above-mentioned dates. At the hearing, petitioner testified in his own behalf and submitted 19 exhibits in evidence. Petitioner's Exhibit 16, a deposition of a James C. Tinsley was rejected. Respondent presented the testimony of seven witnesses and submitted seven exhibits in evidence. A prehearing stipulation of the parties was received in evidence as Joint Exhibit 1. Ruling was reserved on Petitioner's Motion for Judicial Notice of a portion of Respondent's answer brief in First District Court of Appeal Case No. BI-489, Tucker v. Florida State University. The motion is hereby denied.
In the prehearing stipulation, Petitioner states his position that he was relieved of his duties and responsibilities as Director of Administration, Academic Affairs and Personnel Relations in the College of Education at Florida State University arbitrarily and without just cause to his career detriment and breach of his employment contract with the university and his expectancy of re appointment to that position or a similar position. He further contends that such action was tantamount to a demotion or elimination of his position and that it denied him equal opportunity for advancement, and set up a mechanism for a decrease in salary benefits and improper transfer to the teaching faculty in violation of university rules, policies and conferred rights. He also claims that such action was punitive and retaliatory for his prior role in monitoring and criticizing the present Interim Dean of the College of Education. He seeks to have his position restored or be given comparable duties or transferred to a comparable position in another college of the university or in central administration.
Respondent's position is that Petitioner's appointment has always been to the academic faculty, that he has never been a member of the Professional Staff class, and that his assignment of duties is within the discretionary authority of the Dean of the College of Education. Accordingly, Respondent contends that Petitioner does not have a substantial interest appropriate for adjudication.
The parties were given until October 20, 1986 in which to submit proposed recommended orders. The time was extended to October 24, 1986 upon motion of Petitioner. Petitioner's submission was filed within the required time period.
Respondent's Proposed Findings of Fact and Conclusions of Law was
untimely filed and therefore has not been considered. A ruling on each of Petitioner's proposed findings is made in the appendix hereto.
FINDINGS OF FACT
Petitioner, Dr. Erb Fontenot, has been associated with Florida State University (FSU) for over 14 years, after having taught for 14 years in public schools in Louisiana, and two years at the University of West Florida in Pensacola. He originally enrolled at FSU to complete his PhD and simultaneously was hired as an instructor on the faculty of the College of Education. His written appointment to the faculty for the academic year 1975- 1976 was as a non-tenured faculty member at the rank of instructor in the College of Education, Department of College- Wide Instructional Services. The document reflected the special terms or conditions of employment as follows:
To teach such courses as are assigned.
To conduct research of a publishable quality. To render such other services as the Department, College, or University might assign.
The Dean of the College of Education in 1975 was Dr. James L. Gant, who served in such capacity from 1974 to 1983. In 1975, Dean Gant had two associate deans who served with half-time teaching duties and half-time administrative work in his office. Petitioner was also assigned administrative duties half-time as Special Assistant for Academic Affairs and Personnel Relations and the remaining half of his time for instructional duties as assigned. There was also a Director of Planning in the Dean's office who similarly performed administrative duties half-time and teaching duties half-time. During succeeding years, Dean Gant periodically reassigned his staff as the need arose or upon the request of staff members. As a result, re-assignments occurred from time to time which were within the discretion of the Dean. At the time Dean Gant assumed his duties as Dean, the position of Special Assistant for Academic Affairs and Personnel Relations was not a full-time administrative position even though it was so designated in the college's 1972 organizational guide. However, Petitioner testified that during the period preceding Gant becoming Dean of the college, he (Petitioner) was a full- time administrator who taught perhaps one or two courses each semester. His testimony was uncontroverted in this regard and is accepted. Petitioner's contracts after 1976 show appointment Modifier B which is for courtesy faculty status. "Courtesy" faculty is defined in Rule 6C-5.105(1)(i), F.A.C., as "those appointments to a departmental faculty which do not include compensation, may include special faculty privileges such as
voting in departmental affairs, and are made in accordance with regular faculty qualifications. . . ." Testimony at the hearing shows that such a status normally involves teaching in a department of a college other than that to which the faculty member is assigned. (Testimony of Petitioner, Gant, Kropp, Edwards, Petitioner's Exhibits 17, 19, Respondent's Exhibits 4-5)
At a time undisclosed by the evidence, Petitioner received his doctorate degree and was awarded the academic rank of assistant professor. His employment contract for the 1978- 1979 academic year reflects that he was in a tenure-earning appointment and classified as Director and Assistant Professor under Class Code 9082. The contract reflected special conditions of employment were for him to serve as Special Assistant for Academic Affairs and Personnel Relations. The Instructional and Research Class Code 9082 under the title Director and Assistant professor is described as follows:
An academic employee who shall hold the qualifications of the rank of 'assistant professor' and whose major responsibility is the administration of an academic/county research center, institute, or inter- disciplinary function or budgeted entity.
This position, being an academic function of the university, is funded by the instructional and research budget and is a faculty class. Under Article VI of the Florida State University Constitution (Rule 6C2-1.04(6), F.A.C.), an assistant professor is considered ineligible for tenure or for re-appointment beyond a seven year maximum. A prerequisite for consideration for tenure is that the faculty member hold the rank of associate professor. (Petitioner's Exhibits la, 15a)
Petitioner's contracts for the 1980-1981 and 1981-1982 academic years were basically the same as that for the 1978-1979 academic year. (Petitioner's Composite Exhibit 18)
Several years before Petitioner had reached the time when he would be subject to dismissal if tenure had not been obtained, Dean Gant had several discussions with him concerning his status at the university. Petitioner had not been promoted to associate professor and therefore was then ineligible for tenure consideration. Dean Gant pointed out to Petitioner the fact that he needed to conduct the necessary research and teach more in order to be able to meet tenure requirements which could result in recommendations by the faculty and the University for tenure. Petitioner raised questions as to whether or not he could obtain tenure through his performance of administrative duties and Dean Gant indicated that such a result would be
unlikely under the normal tenure process because of the necessity for approval by departmental faculty. Eventually, when it became apparent that Petitioner was not going to be promoted, Dean Gant talked with him and decided that a way of keeping him on the faculty was to take him off the tenure-earning track so that he would not be under the "up-or out" rule. (Testimony of Gant)
In furtherance of his discussions with Petitioner, Dean Gant thereafter conferred with Dr. Daisy Flory, the University's Dean of Faculties concerning the possibility of retaining Petitioner by placing him in a non-tenured administrative position in order that he could have time to work on his teaching and do research prior to returning to a tenure-earning position. She agreed with this plan and, therefore, by letter of March 24, 1982, Petitioner made a formal request to Dean Gant that his employment status be changed to reflect an administrative and service role with a courtesy rank in the Department of Childhood, Reading, and Special Education in conformity with Article VI of the University constitution. The pertinent provision which is reflected in Rule 6C2-1.04(6)(a)7a, FAC, provides in part as follows:
Persons holding an administrative or service role normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive upon request a tenure-earning appointment in an academic unit.
The "rule" referred to in the above-cited provision is the "up-or out" rule relating to non-tenured employees. Dean Gant forwarded Petitioner's letter to Dr. Flory asking that she take appropriate steps to effectuate the change and by memorandum dated April 1, 1982 she indicated that the request had been received and filed in Petitioner's file to indicate his "changed situation." Nevertheless, Petitioner's employment contracts for the 1982-1983 and 1984-1985 academic years reflected that he was still in a tenure-earning appointment. During these years, regardless of the "changed situation", Dean Gant still considered that Petitioner was at the disposal of his academic department head for 50 percent of his time. As a practical matter, Petitioner performed most of his duties in his administrative role and taught only once or twice each term, usually in the late afternoon or evening. (Testimony of Gant, Petitioner, Flory Deposition (Respondent's Exhibit 2), Petitioner's Exhibit 5, 18)
Dean Gant retired in December, 1982 and was- succeeded by Dean Bruce W. Tuckman. Dean Tuckman apparently took a different view of Petitioner's situation and considered him to be engaged in a full-time administrative position. This was evidenced by the Dean's memorandum to Dr. Gus Turnbull, University Provost, dated November 2, 1984, whereby the Dean requested that Petitioner receive a direct promotion to the rank of associate professor and tenure in the College of Education. Dean Tuckman pointed out that Petitioner's role was considered unique in comparison to other professors seeking promotion and tenure through the normal process since his heavy administrative assignment had limited his participation in departmental academic activities. Favorable action apparently was not taken on the request since Petitioner remained in the rank of assistant professor. Dean Tuckman's evaluation of Petitioner on May 7, 1985, was "outstanding" and reflected that his primary duties were in administration. In the summer of 1985, Dean Tuckman sought and obtained the approval of Vice-President Turnbull of a salary increase of $6,056 for Petitioner with the stated basis of expansion of his duties to include the office of administration, the business office, coordination of personnel matters, and part of the duties resulting from the loss of an associate dean. (Petitioner's Exhibits 4, 4a, Respondent's Exhibit 1)
Dean Tuckman was thereafter assigned to other duties. Petitioner's employment contract for the 1985-1986 academic year was signed on August 7, 1985 by Dean Steve Edwards, Deputy Provost and Dean of Faculties. The contract was similar to those of past years except that it showed that Petitioner was in a non- tenure-earning status and the special conditions of employment were to serve as Director of Administration, Academic Affairs and Personnel Relations. The classification code was 9082 with title of Director and Assistant Professor. (Testimony of Edwards, Petitioner's Exhibit 1)
Dr. Robert L. Lathrop was named Interim Dean of the College of Education and assumed those duties on or about September 1, 1985. His previous position had been as Director. for the Center for Studies in Vocational Education, a research organization attached to the College of Education. At the time Dean Lathrop was appointed, the Vice-President of the University, Dr. Turnbull, was engaged in a major strategic planning activity whereby he assigned to all of the college deans the requirement to develop a strategic plan setting major goals for the next five years and securing faculty consensus on those goals. The College of Education was perceived by the administration as being disorganized with the faculty having a lack of confidence in its administration. Accordingly, one of the major roles that Dean Lathrop was charged with by the Vice-President was to restore faculty confidence in the governing structure of the college.
After looking into the situation and talking with the individuals who had leadership roles, including the staff and department heads of the college, Dean Lathrop determined that he needed to bring more active faculty representation into the administration of the Dean's office. To this end, he appointed two half-time associate deans from the senior faculty of the college. He examined the functions that Petitioner had been assigned under the prior Dean and his manner of performance. He found that department heads had not received their budget statements for a considerable length of time, that personnel actions had often been delayed and that it was difficult to get decisions in this respect. Dean Lathrop concluded that Petitioner had been assigned too many responsibilities. He also determined that he needed to take over personal control of the distribution of the budget and distribution of faculty assignments in order to exert real leadership in the college. It is important that the Dean be able to move the faculty around where they are most needed and, since there are a limited number of positions, the more utilization he makes of personnel for administration, the less there are for teaching. He therefore determined that all members of the Dean's staff, with the exception of one person who had a commitment from the former Dean, should carry half-time assignments in the Dean's office and half-time assignments in an academic department. (Testimony of Lathrop)
Dean Lathrop met with Petitioner in September concerning the latter's long-range career plans, and Petitioner indicated that he desired to continue in academic administration. Dean Lathrop pointed out to him that there is no tenure in an administrative position and that he should give some thought to working toward tenure during the period that the tenure "clock" had stopped running for him and he should utilize this period of time to pursue activities related to obtaining tenure. At this time, Petitioner offered to perform whatever function in the new administration that Dean Lathrop regarded as being appropriate to the needs of the college. Later, Dean Lathrop met with the members of his staff individually, including Petitioner and announced his plans for their assignments. Although Dean Lathrop did not recall that Petitioner voiced any serious objections at that time, he later became aware of a memorandum from Petitioner to the President of the University dated September 24, 1985, in which he protested the reduction and reassignment of some of his former duties and transfer of staff and clerical personnel. Petitioner characterized the reorganization as being retaliatory, punitive, unethical, subversive, and racially motivated. He further requested that an immediate investigation be conducted of the activities and actions taken against him. (Testimony of Lathrop, Petitioner's Exhibit 7)
By memorandum of September 25, 1985, Dean Lathrop advised Petitioner of his assignment change as follows:
This is in confirmation of my verbal change of your assignment about which I informed you in our conversation of September 18, 1985.
Effective that date, I relieved you of responsibilities associated with the Director of Administration portion of your assignment. For the remainder of the academic year I ask that you continue your responsibilities with respect to Affirmative Action, grievances and as ombudsman. This should free up approximately 50% of your time this Fall which may be useful in preparing to assume that proportion of time in your academic department next Spring. Thus, your Spring assignment would be 50% Dean's Office and 50%. Childhood Education.
A further memorandum, dated September 27, 1985, made reference to Petitioner's memorandum of September 24 and expanded more specifically on the reassignment of duties with reference to a listing of responsibilities for the Director of Administration and Director of Academic Affairs and Personnel Relations, as contained in the college Guide to Organization, Internal Policies, and Some Procedures. This was a compilation of various policies and duties of positions that had been issued during the time when Dr. Gant was the Dean. However, the description of duties for a particular position was designed to assist personnel of the college in ascertaining the division of assigned responsibilities in the dean's office. They are not position descriptions as contemplated in the career service system because faculty members are not career service employees.
Dean Lathrop's memorandum explained that he had distributed the former responsibilities of the Director of Administration portion of Petitioner's former responsibilities for the conduct of the college's business office and word processing centers to himself, department heads, and other staff personnel. These responsibilities had included fiscal management of college funds, personnel actions, and space utilization. The staff position of Director of Academic Affairs and Personnel Relations carried an "ombudsman" role and recommendations to the dean on faculty promotion and tenure, faculty student relations, liaison with university staff offices, affirmative action matters, and various other college administrative functions. These responsibilities were considerably scaled down, as indicated in Dean Lathrop's memorandum. Generally,
Petitioner's remaining duties consisted of student matters, affirmative action and minority programs, assisting in the election process for college committees, and monitoring compliance with the Family Educational Rights and Privacy Act and the Administrative Procedure Act. By memorandum dated October 1, 1985, to Dean Lathrop, Petitioner requested that they meet with Dr. Edwards and Dr. Groomes concerning his situation, but there is no evidence that such a meeting took place. (Testimony of Lathrop, Petitioner, Petitioner's Exhibit lb, 8-9, Respondent's Exhibit 6)
Petitioner contends that he has always been a member of the Professional Staff of the university and as such has the assurance of annual recommendation for re-appointment in his administrative position. Article VII of the Florida State University constitution, which appears in Rule 6C2-1.04(7), FAC, states pertinently as follows:
. . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty.
Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies
recommended by the Heads of their respective units and approved by the President of the University and Board of Regents.
There are three categories of employees at Florida State University under three pay plans. These are Career Service employees, Administrative and Professional (A&P) employees, and faculty employees. All faculty employees, including those performing substantial administrative duties such as Petitioner, are in the faculty pay plan. Members of the Professional Staff are not in the faculty pay plan, although they hold academic appointments and are assigned faculty rank under Article VII of the university constitution. All members of the Professional Staff are under the A&P pay plan, but all A&P employees are not members of the Professional Staff. A&P employees are traditionally administrative personnel, such as those assigned to the offices of student affairs, business operations, comptroller's officer, admissions, registrars and the like. "Professional Staff" under Article VII of the constitution was a category initiated to cover librarians. These individuals were not members of the faculty and therefore the constitutional provision provided a way to hire professionally trained individuals under conditions that they would find acceptable by the assignment of academic rank. These individuals are not under the faculty pay plan and are not members of the faculty in that sense. Petitioner's status is determined by the Class Code 9082, and he is not a member of the Professional Staff. If he returned to full-time teaching duties, as is usually the case with faculty administrators, he would be under a different class code. (Testimony of Edwards, Parry, Flory Deposition, Respondent's Exhibit 2, Petitioner's Exhibit 2)
As a faculty member whose responsibilities included administrative responsibilities involving supervision over other employees by virtue of his designation as a "Director," Petitioner's Class Code 9082 was not covered under the collective bargaining agreement between the state university system of Florida and the United Faculty of Florida. However, University officials and Petitioner acknowledge that the principles embodied in the agreement are ordinarily applied to other faculty personnel, such as Petitioner, unless modified by the Dean of the College. Article 9 of the Collective Bargaining Agreement provides that annual assignments of employees shall not be imposed arbitrarily or unreasonably, and provides for a procedure to resolve assignment disputes. However, these provisions deal with disputes filed prior to the effective date of the assignment. In this case, Petitioner does not dispute the original assignment which was reflected in his 1985 employment contract, but with changes in the assignment that took place
after its effective date. (Testimony of Petitioner, Parry, Edwards, Petitioner's Exhibit 3)
The past and present University officials who testified at the hearing uniformly agree that a college Dean has the authority to reorganize and re-allocate staff functions in order to accommodate the changes that he feels necessary to efficiently supervise the administration of the college. Each Dean has a different style and, as a former Interim Dean of the College of Education put it: "The Dean can name his team." James Parry, Director of Human Resources, Personne1 Policies and Labor Relations for the Board of Regents, supported the view that a Dean can assign his personnel freely, and that the need for such flexibility is the reason why no formal position descriptions are required for faculty members. Dr. Edwards, Dean of Faculties, testified that a Dean is authorized to assign duties and to change them during the contract period. According to Dr. Edwards, the "special conditions" which are sometimes included in annual employment contracts such as that of Petitioner, are meant to place special emphasis on some part of the functions of the position. They indicate that the administrative part of the faculty members duties will be concentrated in certain areas. However, Deans can assign specific duties from the functions or titles shown in the special conditions. If there was an intent to restrict an employee solely to administrative duties, the special conditions would state "to only serve" in a particular capacity, otherwise, the duties mentioned under the special conditions portion of the contract are subject to reassignment. Also, a faculty member with academic rank must have an assignment that would permit him to perform the duties of that rank. (Testimony of Gant, Kropp, Parry, Edwards, Flory Deposition (Respondent's Exhibit 2))
During the time that Dean Lathrop was serving as Director of the Vocational Education Center in the College of Education, several situations arose that generated employee complaints. These included such matters as the reclassification of the librarian position, and the assignment of duties to a library technical assistant. The latter complaint was later withdrawn, and the reclassification action was also withdrawn after a recommendation to that effect by a university grievance committee. Although a University Equal Opportunity Committee, chaired by Petitioner, had a subcommittee look into the practices of the Education Center to determine if there was any practice of discrimination, the subcommittee found that the main problems in the center were with job classifications and funding of programs and made no findings of any discrimination. Routine personnel action requests of Dean Lathrop concerning the Education Center were reviewed by Petitioner prior to decisions by the Dean.
These included matters such as recommendations for salary
increases, promotions, establishment and reclassification of positions, and layoff actions. As can be expected, some of Lathrop's requests were approved and some disapproved.
Petitioner is of the view that because he recommended disapproval of some of the requests, Lathrop was biased against him and that this resulted in his reassignment of responsibilities in 1985.
Dean Lathrop denied any such personal feelings and there is no evidence to establish Petitioner's claims in this regard. In fact, Dean Gant testified that, during his tenure, Lathrop had managed the Center in a very competent manner, protected employee's rights, and never evidenced any discriminatory intent or retaliation against anyone. (Testimony of Petitioner, Lathrop, Gant, Respondent's Exhibits 1la-c, 12-13)
Petitioner performed his administrative duties prior to the 1985-1986 school year in a creditable manner. Dean Gant characterized his performance as "excellent" and Dean Tuckman gave him an "outstanding" evaluation during the 1984-1985 school year. (Testimony of Gant, Petitioner's Exhibit 4a, 6)
It is agreed by the parties that Petitioner's salary, leave, health and medical or retirement benefits under the 1985- 1986 contract have not been reduced. (Prehearing stipulation)
CONCLUSIONS OF LAW
This case raises the rather unusual question of the extent to which a University faculty member's assignment of duties for a specified academic year which are broadly designated in the employment contract, can be reduced or otherwise changed by the college dean during the contract period. There is no question but that Petitioner's administrative functions were substantially reduced as a part of Dean Lathrop's reorganization plan for his administrative staff. He reassigned to himself, to Petitioner's former staff assistant, and to the department heads the functions Petitioner had formerly performed under the title of Director of Administration as part of his reorganization plan. Also, a number of Petitioner's former duties as Director of Academic Affairs and Personnel Relations were reassigned to others or reserved for handling by Dean Lathrop.
Section 240.202, Florida Statutes, provides that "the powers, duties and authority vested with the university shall be vested with the president of the university or his designee." Section 240.227 provides that the president is the chief administrative officer of the university and is responsible for its operation and administration, including the development and adoption of rules governing the university. The rules of Florida State University are contained in Chapter 6C2, Florida Administrative Code. The university constitution is set forth in Rule 6C2-1.04. Pertinent portions of the constitution as set forth in Rule 6C2-1.04 are as follows:
6C2-1.04 University Constitution
* * *
Article III The General Faculty
Section A--Membership
The General Faculty shall consist of those persons holding the academic rank of. . . Assistant Professor. . . in one of the colleges. . ., and of those members of the Professional Staff to whom the president assigns an academic rank. (Emphasis added)
* * *
(6) Article VI The Faculty Members of Colleges, Schools and Divisions
Section A--Appointment
* * *
Each original appointment shall be confirmed by the President of the University in a letter contract in which the salary and the term of appointment shall be clearly stated. Thereafter, a letter contract specifying salary, rank, and any special terms or conditions of employment shall be sent to each faculty member by his Department Chairman, Dean or Provost as soon as possible after the budget for the succeeding year has finally been approved.
* * *
Section B--Tenure
* * *
Upon the advice of a department chairman; a departmental, college, and divisional advisory committee, the Dean of the respective school or college and the appropriate Provost, the President of the University may 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: at
least 12 months before the expiration of an appointment after 2 or more years in the institution.
* * *
7.a No person employed after 1965 may remain in the service of the University as a non- permanent member of the faculty of any college. . . in any rank or combination of ranks for a total of more than seven years. .
. Persons holding an administrative or service role will normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive, upon request, a tenure-earning appointment in an academic unit.
b. Not later than the end of the sixth year of service. . .the Departmental Chairman in consultation with the Dean of his college or school and the Divisional Provost, shall either nominate the faculty member for tenure or arrange to terminate his service at the end of the seventh year. . .
8. Assistant Professors. . .shall be considered ineligible for tenure or for reappointment beyond a seven-year maximum.
* * *
(7) Article VII The Professional Staff
. . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty.
Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies recommended by the Heads of their respective units and approved by the President of the University and board of regents.
Rule 6C2-4.33 concerning faculty evaluations reads in part as follows:
6C2-4.33 Faculty Evaluations.
(1) Purpose, Scope and Sources of Evaluation
Each faculty member, tenured and non- tenured, 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. . ..
When first employed, each faculty member shall be apprised, through his or her contract, 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 duties involved. If and when these expectations change during the period of service of the faculty member, that faculty member shall be apprised of the change in written form. (Emphasis added)
Rule 6C2-4.34 concerning faculty tenure and promotion includes administrative duties for a college as one of the means by which the "service" requirement for faculty members is recognized.
In determining the employment status of Petitioner for the 1985-1986 academic year, it is necessary to consider the pertinent University rules, the employment contract, and the evidence presented at the hearing concerning the policies and practices of the college and University concerning faculty members. At the outset, it is clear that Petitioner's main contention that he, in effect, has acquired tenure as an administrator in the College of Education because he is a member of the Professional Staff referred to in Article VII of the university constitution is without merit. The evidence shows
that there is a clear distinction between Petitioner's status and that of the limited number of university employees who hold academic appointments within a college without teaching responsibilities, but who are "assigned" a faculty rank by the university President. This distinction is shown in Article III of the constitution describing membership in the General Faculty. Further, even if Petitioner were deemed to be a member of the Professional Staff and to "enjoy the assurance of annual recommendation for reappointment," these A&P employees are subject to annual reappointment in the same manner as a non- tenured faculty member. (Rule 6C2-4.54(1)(c), F.A.C.) Finally, the question of tenure ordinarily arises only when an attempt is being made to terminate an individual's employment, and such is not the case here.
The primary issue in this proceeding is whether Petitioner's reassignment of duties in September, 1985, was within the discretionary authority of the Dean of the College of Education. Based upon the totality of the evidence presented at the hearing, the foregoing question must be answered in the affirmative. Although Petitioner's contract stated that he was to serve as Director of Administration, Academic Affairs and Personnel Relations, Dean Lathrop's reorganization of staff functions resulted in the elimination of those titles and a major reallocation of the administrative duties formerly performed by Petitioner. The result was that Petitioner retained some of the duties that he formerly performed in his role as Director of Academic Affairs and Personnel Relations, but none of those as Director of Administration. The reduction in Petitioner's administrative duties and his assignment to half-time teaching duties was in keeping with University officials' perceived need to restore faculty confidence in the college administration.
It is true that Petitioner's Class Code 9082 as "Director and Assistant Professor" specifies that the employee's major responsibility is in the area of administration. However, the evidence shows that such a classification means that an employee will spend a substantial portion of his time on administrative matters, but is also expected to teach during the contract period. In fact, the past practice of allocating 50 percent of the employee's time for administration and 50 percent for teaching was deemed to be appropriate not only by one of Petitioner's former Deans, but also by the representative of the Board of Regents who testified at the hearing, and by the past and present Dean of Faculties. As pointed out by the present Dean of Faculties, every faculty member has administrative duties, some of which are major and some minor, but no faculty member has tenure in an administrative capacity. See, Mohammed v. Dept. of Education, University of Florida, 444 So.2d 1007 (Fla. 1st DCA 1984). The fact that Petitioner performed
administrative duties on an almost full-time basis in the past was no guarantee that he could continue to do so in the future and he was well aware of this fact.
Petitioner's desire to be a career administrator was encouraged by the fact that he was permitted to perform almost full-time administrative duties in the past. Nevertheless, during the years that he was in a tenure-earning position, he was or should have been aware that administrative positions within a college faculty are traditionally on a relatively short-term basis. This was emphasized to him by Dean Gant when he was permitted to change to a non-tenure earning track in an effort to give him additional time to qualify for tenure. However, Petitioner did not perform the substantial teaching or research functions that would have enabled him to achieve that goal. Assignment of half-time administrative and half-time teaching duties for the 1985-1986 school year did put him in the position where he could perform the requisite instructional functions that he needs to overcome past deficiencies in this regard. It cannot be viewed as a demotion, nor is there any evidence to show that his reassignment reflected bias or prejudice on the part of Dean Lathrop. Accordingly, it is concluded that Petitioner's contentions as to the reasons behind his reassignment are without merit.
It is further concluded that Petitioner's reallocation of duties cannot be deemed a material breach of his employment contract. The contract in question provides that it is subject to the constitution and laws of this state, the United States and the rules of the Board of Regents. Evidence at the hearing established that the employment contract speaks only in broad terms concerning the specific duties and responsibilities of faculty members, as does the class specification. Section 240.245(1), Florida Statutes, provides in part as follows:
240.245 Evaluations of faculty members; report.--(l) For the purpose of evaluating faculty members, each university shall adopt 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.
The above statutory provision, and Rule 6C2-4.33, F.A.C., contemplate that changes in specific duties may occur during the course of the academic year, with the proviso that the faculty
member be apprised of the change in written form. Here, Dean Lathrop advised Petitioner in writing of his specific duties and responsibilities at the beginning of the 1985-1986 contract year. In addition, Petitioner has conceded that his monetary benefits were not reduced by his reassignment. The only identifiable possible detriment received by the Petitioner is perhaps his feeling that he has lost a certain measure of prestige in the University community. If, indeed, Petitioner had been entitled to continue in his former role in all respects, he might have a legitimate cause for complaint. However, this is not the case and it cannot be said that assignment to teaching duties involves less responsibility in the University community than the performance of administrative duties. The cases cited by Petitioner in his proposed conclusions of law have been considered, but are not considered applicable to the present situation.
It is accordingly RECOMMENDED that the petition herein be DISMISSED.
DONE and ENTERED this 19th day of November, 1986, in Tallahassee, Florida.
THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1986.
COPIES FURNISHED:
President Bernard F. Sliger Florida State University Tallahassee, Florida 32306
Gerald B. Jaski, Esquire General Counsel
Florida State University
311 Hecht House Tallahassee, Florida 32306
Linda C. Schmidt, Esg. Associate University Attorney Florida State University
311 Hecht House Tallahassee, Florida 32306
M. Stephen Turner, Esquire Post Office Drawer 11300 Tallahassee, Florida 32301
APPENDIX
The following rulings are made on Petitioner's Proposed Findings of Fact below:
FINDING OF FACT / RULING
1-2. Substantially adopted in Findings of Fact 1-2.
Substantially adopted in Findings of Fact 1-2, 9, except that Proposed Finding that Petitioner was appointed to a 100% administrative assignment is unsupported by the evidence.
Adopted in Findings of Fact 2, 11.
Rejected as subordinate and unnecessary.
Rejected as subordinate and unnecessary.
Rejected as irrelevant.
First sentence rejected as unsupported by the evidence. Second sentence adopted in part in Findings of Fact 1. Third sentence adopted in Findings of Fact 1. Fourth sentence, to the effect that Petitioner was not required to teach and that he taught to accommodate department heads, unsupported by the evidence.
First sentence irrelevant. Second sentence to the effect that Petitioner was a 100% administrator unsupported by the evidence. Third sentence substantially adopted in Findings of Fact 14.
Substantially adopted in Findings of Fact 4, except for second and third sentences which are unsupported by the evidence as to the statements that he was not a limited term administrator or that he had no time for necessary research and teaching.
Rejected as unsupported by the evidence.
Substantially adopted in Findings of Fact 5.
Rejected as unnecessary.
Substantially adopted in Findings of Fact 10.
First sentence irrelevant. Second sentence unsupported by the evidence.
Rejected as too speculative for a basis of a finding of fact.
Rejected as irrelevant.
Rejected as irrelevant. Petitioner was not removed from an administrative position.
Substantially adopted in Findings of Fact 7, 9.
Substantially adopted in Findings of Fact 6.
Substantially adopted in Findings of Fact 6.
Adopted in Findings of Fact 7.
Substantially adopted in Findings of Fact 2, 7.
Adopted in generally in Findings of Fact except for ultimate sentence which is unsupported by the evidence.
Adopted generally in Findings of Fact 9.
Adopted generally in Findings of Fact 9.
Rejected as irrelevant and unsupported by the evidence.
First sentence adopted in Findings of Fact 9, remainder unsupported by the evidence.
Substantially adopted in Findings of Fact 9.
Substantially adopted in Findings of Fact 9.
Substantially adopted in Findings of Fact 9.
Covered in Findings of Fact 13. First sentence adopted, remainder of Proposed Findings rejected as unsupported by the evidence.
Rejected as unsupported by the evidence.
Rejected as irrelevant or unsupported by the evidence.
First sentence covered in Findings of Fact 13, ultimate sentence irrelevant because Petitioner was not reassigned to full-time teaching duties for the 1985-86 year.
| Issue Date | Proceedings |
|---|---|
| Nov. 19, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 24, 1986 | Agency Final Order | |
| Nov. 19, 1986 | Recommended Order | Dean of college has discretionary authority to re-assign duties. No tenure in administrative capacity. Recommend reducing administrative duties not demotion. |
