STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM M. BLACKSHEAR, JR., M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 90-5992

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on June 24-26 and October 1-4, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Jeremy E. Gluckman, Esquire

Gluckman & Newman, P.A.

100 Twiggs Street, Suite 220 Tampa, Florida 33602

William M. Blackshear, Jr., Qualified Representative

Department of Surgery, MDC, Box 16 12901 North 30th Street

Tampa, Florida 33612

For Respondent: Thomas M. Gonzalez, Esquire

Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200 Tampa, Florida 33601

Joline Micelli-Mullen, Esquire University of South Florida 4202 East Fowler Avenue

Tampa, Florida 33620 STATEMENT OF THE ISSUE

Whether the University is legally obligated to provide reparation and replace the portion of Petitioner's wages originally provided by the Veteran's Administration with funds received from the Florida Legislature.

Whether an explanation was given to Petitioner by the Department Chairman about Petitioner's removal from the position of Director of the USF Division of Vascular Surgery.

Whether Petitioner has a contractual, tenurial or traditional academic right in the position he held as Director of the Division of Vascular Surgery.

Whether Petitioner's 1989/90 annual salary contract was violated when his budgeted salary was reduced.

Whether the University has an obligation to locate funds through the state budgeting process or other funding sources to provide Petitioner with a full time salary consisting of 8/8 FTEs.

PRELIMINARY STATEMENT

Petitioner, William M. Blackshear, M.D. (Blackshear) has three separate grievances involving the terms and conditions of his employment with Respondent, University of South Florida (the University). The first grievance filed on February 6, 1989, challenged the termination of 4/8ths of his full time equivalence salary funded through the V.A. Administration. The second grievance filed May 23, 1989, contested Petitioner's removal as Director of the Division of Vascular Surgery, Department of Surgery at the University.

While these two grievances were pending, the compensation Petitioner received through the College of Medicine Faculty Practice Plan was reduced. On October 20, 1989, Petitioner filed a third grievance challenging this compensation reduction.

All three cases were consolidated. The University referred the controversy to the Division of Administrative Hearings on September 27, 1990, for a full formal evidentiary hearing.

Final hearing was conducted on June 24-26, 1991, and October 1-4, 1991. During the hearing, Petitioner presented seven witnesses and testified in his own behalf. Petitioner's Exhibits Nos. 1-3, 6-11 and 13-39 were admitted into evidence. Petitioner proffered Exhibits No. 4, 5 and 12. Respondent called nine witnesses and submitted one deposition. Respondent's Exhibits Nos. 2-29, 31-64, 67 and 69-75 were admitted into evidence. Exhibits No. 1, 65, 66 and 68 were withdrawn after their admission.

A transcript of the proceedings were filed November 21, 1991. The parties waived the ten day deadline for filing proposed findings of fact. Proposed Recommended Orders were filed January 13, 1992. Rulings on the proposed findings are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Petitioner received his salary from two sources: the University of South Florida College of Medicine and the James A. Haley Veterans Administration Medical Center (Haley V.A.). As a special condition of his employment with the University, Petitioner also received a salary supplement which was derived through the College of Medicine Faculty Practice Plan. In consideration for the supplement, Petitioner agreed to assign all rights to fees or other compensation for medical services rendered by him during his employment term to the College of Medicine Faculty Practice Plan (Practice Plan).

2. In spite of the wording of the employment contract with the University, Petitioner has never been expected to assign his salary from his position at the Haley V.A. to the Practice Plan. V.A. salary is excluded from the assignment process because of the relationship between the Haley V.A. and the University.

   
   

3. The Haley V.A. is an institution that operates as a "Dean's Hospital". Essentially, this designation means that a V.A. Hospital and a College of Medicine in the same locale operate under a personnel and resource sharing policy. For example, if a surgeon is needed by both the Haley V.A. and the University, the two institutions will share in his or her appointment. The individual's salary is paid proportionately by each institution based upon their respective need for his or her services in a forty hour work week. The time is broken down into segments measured by eighths (8ths) known as full time equivalents (FTEs). A forty hour work week consists of 8/8 FTEs.

   
   

4. The dual appointments of a physician under the sharing agreement customarily occur in the following manner: An advisory board known as the "Dean's Committee" at the College of Medicine recommends the dual appointment to the V.A. Hospital. The Professional Standards Board at the hospital evaluates the applicant after he or she has completed a separate application for employment with the Veterans Administration. Once a recommendation for appointment and salary level from the Professional Standards Board is received by the Medical Center Director, the applicant is either granted or denied the

   V.A. appointment. If an appointment occurs, the University then enters into an employment contract for the remaining FTEs with the physician.

   
   

5. Although the two institutions work together and have parallel staffing in many of their Departments, each institution is responsible for hiring and managing its own employees. This autonomy is required because the institutions have different missions.

   
   

6. The Petitioner accepted dual appointments to the University's College of Medicine and the Haley V.A. in 1979. His original appointments were for 5/8 FTEs as Staff Surgeon in Peripheral Vascular Surgery at the Haley V.A. and 3/8 FTEs as an Associate Professor of Surgery at the University. Petitioner's employment at the Haley V.A. began on June 1, 1979. His employment at the University began on September 1, 1979.

   
   

7. Petitioner's clinical competence, research and development accomplishments, surgical skills and teaching abilities are unassailable in both institutions. The attempted attacks on these talents during hearing were ineffective.

   
   

8. When Petitioner assumed his responsibilities at both institutions, he eventually became head of the vascular surgery program at the Haley V.A. and Director of the Division of Vascular Surgery with the College of Medicine, a parallel position.

   
   

9. Although Petitioner's services were originally allocated as 5/8 FTEs to the Haley V.A., both institutions knew his career goals were always focused upon his teaching position at the University and his administrative responsibilities there as Director of the Division of Vascular Surgery.

10. During his early years at both institutions, Petitioner's responsibilities at each facility grew and became more demanding. Petitioner naturally focused on his primary career goals at the University and delegated many of his V.A. responsibilities to extremely competent physicians under his direction.

    
    

11. In 1986, the Chief of Surgery at the Haley V.A. took steps to enforce the required tours of duty for academic doctors with V.A. appointments. Audits at another Dean's Hospital had revealed that the academic staff there had been lax in fulfilling the time requirements demanded by their individual employment contracts. This administrator did not want a similar occurrence at his hospital. On November 16, 1986, the Chief of Surgery asked the V.A. doctors he supervised to sign an affirmation of intent to work the amount of hours required by their individual appointments.

    
    

12. Petitioner signed the affirmation and acknowledged that he would work

    50 hours at the Haley V.A. during every two week time period, in accordance with his 5/8 FTEs V.A. appointment.

    
    

13. Petitioner was unable to meet these hourly requirements during the biweekly time allocations. He voluntarily reduced his V.A. appointment from 5/8 to 4/8 FTEs, effective May 8, 1988.

    
    

14. After his V.A. appointment reduction, Petitioner was still unable to meet the biweekly time requirement of 40 hours at the Haley V.A. Administrators at the V.A. wanted him to be physically present in the hospital during the time he spent on V.A. matters. Petitioner believed he was unable to comply with this requirement because of his obligations at the University. As Director of Vascular Surgery, he was responsible for the vascular surgery portion of the Residency Program at the Bay Pines V.A. Hospital in St. Petersburg and the Tampa General Hospital in downtown Tampa.

    
    

15. On June 15, 1988, the Acting Director of the Haley V.A. corresponded with the Chairman of the Department of Surgery at the University. The Chairman at the University was notified by letter that a decision had been made to terminate Petitioner's V.A. appointment. The anticipated termination date was July 16, 1988. A discussion with the Chairman regarding this matter was requested by the Acting Director at the V.A.

    
    

16. The Chairman replied to this letter on June 28, 1988. He advised the Acting Director that he had placed the matter on the Surgery Mini-Dean's Committee meeting scheduled for July.

    
    

17. Petitioner did not receive copies of the correspondence between the Acting Director at Haley V.A. and the Chairman of the Department of Surgery at the University.

    
    

18. Petitioner was not aware of the discussions between the University and the V.A. regarding the further reduction of his FTEs at Haley V.A.

    
    

19. On August 23, 1988, Petitioner was advised in writing that his salary for the 1988/89 academic year had been budgeted at $145,000.00. This figure included his salary from the Haley V.A., the State of Florida and other funds within the USF Department of Surgery which were derived through the College of Medicine Faculty Practice Plan. He was also approved to receive a salary supplement of $30,000.00 should his productivity and funds in the Division of

    Vascular Surgery allow for this additional amount. These additional funds would have come from profits made within the Division and assigned to College of Medicine Faculty Practice Plan, according to the usual operating procedure.

    
    

20. On August 24, 1988, Petitioner was offered his tenured 3/8 FTEs at the University. The length of the appointment was from August 8, 1988 to August 7, 1989. His salary from the Florida Legislature funding lines was scheduled as

    $23,801.00. As a special condition of employment, he was advised that his salary may be supplemented with funds derived through the College of Medicine Faculty Practice Plan, in consideration of his agreement not to engage in patient case activities other than as a faculty member.

    
    

21. Petitioner accepted the contract on September 1, 1988. On September 27, 1988, Petitioner was advised by the Chairman of the Department of Surgery at the University that the Haley V.A. wanted to make changes in his appointment at that institution.

    
    

22. On November 21, 1988, the Chief of Staff at the Haley V.A., the Dean of the College of Medicine and the Chairman of the Department of Surgery had a meeting regarding Petitioner's 4/8 FTEs at Haley V.A. Petitioner was not aware of the meeting nor was he invited to attend. The chief of staff at the V.A. advised the University that he was going to ask Petitioner to resign 3/8 of his remaining FTEs at the V.A. effective December 4, 1988. If he had failed to agree, the action would be taken administratively. The Dean told the Chairman of the Department of Surgery that he would approve supplementing Petitioner's total salary from funds received through the College of Medicine Faculty Practice Plan. The Dean and the Chairman agreed to restore Petitioner to the salary level he would have received that academic year if he had not had 3/8 FTEs from the Haley V.A. removed from his compensation.

    
    

23. Although a letter was sent to Petitioner requesting resignation of a portion of his FTEs, he did not resign his 3/8 FTEs on December 4, 1988. On December 5, 1988, his V.A. appointment was converted to an intermittent appointment of 1/8 FTE by the Director of the Haley V.A.

    
    

24. The Dean of the College of Medicine authorized a salary adjustment for Petitioner at the University. Petitioner was to be paid a salary equaling the level of salary he had expected for the year prior to the V.A. action. This additional salary compensation was derived through the College of Medicine Faculty Practice Plan.

    
    

25. During the 1988/89 academic year, Petitioner was allocated the same total amount of compensation from all sources after his V.A. FTEs were reduced because of the approved increase in his compensation from the College of Medicine Faculty Practice Plan.

    
    

26. Petitioner filed a grievance against the University for the reduction of his V.A. FTEs on February 3, 1989.

    
    

27. The grievance filed with the University has no basis in law or fact because the Haley V.A. has the right to reduce the FTEs of its own employees. When one of the parties to the "Dean's Hospital" personnel sharing policy decides it does not want to continue to assign a certain number of FTEs to an employee, the other institution does not have a concomitant responsibility to provide that employee with a forty hour work week. The shared employee has two separate employment contracts.

28. Petitioner has been continuously aware that his employment at the Haley V.A. was separate from his employment at the University. In his Memorandum to the Chairman of the Department of Surgery dated October 3, 1988, he wrote: ". . . that any decision regarding changing (sic) in my appointment status with the V.A. is entirely their responsibility."

    
    

29. After the Haley V.A. reduced Petitioner's appointment to an intermittent 1/8 FTE, he was required by the Chairman of the Department of Surgery to cooperate with the Haley V.A. in the establishment of its vascular lab. He was also instructed to assist in the assignment of shared lab technicians under the "Dean's Hospital" sharing agreement. These two tasks were part of his duties as Director of the Division of Vascular Surgery.

    
    

30. A meeting between Petitioner, the Department Chairman and administrators from the Haley V.A. on February 1, 1989, did not bring about a resolution of the conflicts between Petitioner and the V.A. regarding the hospital's creation of its own vascular lab.

    
    

31. The Chief of Staff at the Haley V.A. wrote a letter to the Chairman of the Department of Surgery and made a proposal regarding the proposed sharing agreement on the vascular lab directly to him. This letter was received by the Department of Surgery on February 14, 1989.

    
    

32. On March 1, 1989, the Chairman of the Department of Surgery had a meeting with Petitioner. By way of memorandum dated March 1, 1989, Petitioner was directed by the Chairman to pursue activity that would lead to a resolution of the problems between his Division and the Haley V.A. In particular, Petitioner was directed to assist in the establishment of a vascular laboratory at that facility. He was given four weeks to demonstrate he was complying with these directives. He was also advised that if the Chairman did not have evidence that these directives were being followed, he would ask Petitioner to step down as the Director of the Division of Vascular Surgery.

    
    

33. On April 27, 1989, Petitioner was informed by the Chairman of the Department of Surgery that he was being removed as Director of the Division effective May 1, 1989. The reason given for his removal was that the Chairman had not detected any significant resolution of the problems cited in the memorandum.

    
    

34. On May 1, 1989, the Chairman took over the administrative duties of the Division.

    
    

35. The Chairman of the Department of Surgery had the authority and discretion to remove Petitioner as Division Director.

    
    

36. Petitioner filed his second grievance on May 18, 1989, to challenge his removal as Division Director.

    
    

37. This grievance urges that his removal as Director was an improper action based upon the following: 1) His removal was an act of retaliation in response to his filing the earlier grievance; 2) The Chairman of the Department of Surgery was incorrect in his determination that Petitioner had not attempted to resolve his differences with the Haley V.A.; and 3) The action was unconstitutional in that it interfered with his academic freedom and freedom of speech.

38. Petitioner's removal was not related to the filing of the first grievance.

    
    

39. There was no evidence presented at hearing to demonstrate that Petitioner took affirmative steps to resolve the conflict with the Haley V.A. about the V.A. vascular lab after he was directed to do so by the Department Chairman.

    
    

40. Petitioner's academic freedom and freedom of speech were not violated by the Chairman's directives issued to Petitioner in his role as an administrator. The directives were given because the Division of Vascular Surgery was not fulfilling its obligations under the sharing agreement between the two institutions.

    
    

41. When the directives were given, the Chairman advised Petitioner that his faculty position would not be affected by his response or lack of response to these administrative directives.

    
    

42. The controversy with the Haley V.A. about the creation of its own vascular lab was the only problem Petitioner was directed to cure to maintain his position as Director. Based upon that representation from the Chairman, the allegations about other misdeeds or misconduct are rejected as matters which are irrelevant and immaterial.

    
    

43. Petitioner did not have contract, tenure or traditional academic rights in the administrative appointment as Director of the Division of Vascular Surgery.

    
    

44. Division Directors within the Department of Surgery serve at the will of the Chairman.

    
    

45. A reasonable explanation was presented for Petitioner's removal from his administrative position. There was just cause for the Chairman's action.

    
    

46. Petitioner's perception that his removal from the directorship was a disciplinary action is without merit. It was an administrative decision predicated upon the University's need to comply with the sharing agreement.

    
    

47. One of the main reasons Petitioner objected to the establishment of a vascular lab at the Haley V.A. was that the lab would compete with the University lab and reduce its income. This, in turn, would affect the budget of the Division of Vascular Surgery and the contributions it would be able to make to the College of Medicine Faculty Practice Plan. All of the money previously received in Petitioner's Division from the vascular lab work done on behalf of the Haley V.A. would remain in house. As a result, the salary supplements received by Petitioner through the College of Medicine Faculty Practice Plan, would decrease in amount.

    
    

48. Petitioner actually received $145,000.00 in salary from the state funding line and the College of Medicine Faculty Practice Plan during the 1988/89 academic year.

    
    

49. In negotiations regarding Petitioner's annual salary for the 1989/90 academic year, the Chairman of the Department of Surgery agreed to pay him a salary of $145,000.00. These funds were to be provided through state funds at 3/8 FTEs and funds derived from the College of Medicine Faculty Practice Plan.

50. The Chairman had the discretion to disburse the Faculty Practice Plan funds in this manner.

    
    

51. Petitioner relied upon the representation that he would receive

    $145,000.00 as his salary when he began the 1989/90 academic year at the University on August 9, 1989.

    
    

52. A written employment contract for the 1989/90 academic year was not placed into evidence.

    
    

53. In order to receive a salary of $145,000.00, Petitioner's state salary had to be supplemented monthly with $9,326.33 in Faculty Practice Plan funds. This occurred during the first quarter of the academic year.

    
    

54. On September 22, 1989, the Chairman sent a written memorandum to Petitioner which advised him that an adjustment was being made to reduce the amount of money he received from the Faculty Practice Plan by $1,893.33 per month for the remaining three quarters of the 1989/90 academic year. This would amount to a salary reduction of $17,039.97.

    
    

55. As his reason for the reduction, the Chairman cited the financial condition of the Division of Vascular Surgery and Petitioner's removal as Director. A third grievance was filed by Petitioner after he received the memorandum about his salary reduction.

    
    

56. The Petitioner has continuously predicted that the Division's financial condition would suffer as a result of the loss of two vascular surgeons and the loss of the profits from V.A. vascular lab business that was formerly conducted at the University lab.

    
    

57. Ordinarily, the Chairman has the discretion to adjust monthly salary supplements derived through the College of Medicine Faculty Practice Plan based upon the financial condition of a Division and its contributions to the Plan. This occurs because salary supplements are given to the medical faculty if they have contributed to the Practice Plan and the money is available. In this case, however, the Chairman had earmarked salary funds for Petitioner through the Plan. These funds were not a supplement, they were part of Petitioner's total salary compensation from the University. The College of Medicine chose to compensate Petitioner in this manner instead of using 8/8 FTEs provided by the State Legislature. The University has the right to decide how Petitioner's employment at the institution is funded.

    
    

58. Petitioner is entitled to an additional $17,039.97 in salary compensation derived through the College of Medicine Faculty Practice Plan for the 1989/90 academic year.

    
    

    CONCLUSIONS OF LAW

    
    

59. The Division of Administrative Hearings has jurisdiction over the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

60. The first grievance involves the Petitioner's protest of the decision within the Haley V.A. to convert his 4/8 FTEs appointment to an intermittent appointment of 1/8 FTE on December 5, 1988. Although the University promoted the idea of Petitioner's dual appointments at the Haley V.A. and the College of Medicine, Petitioner's employment with the Haley V.A. is based upon a separate

    set of personnel rules and regulations administered by that institution. Accordingly, both the University and the Division of Administrative Hearings lack subject matter jurisdiction over this grievance.

    
    

61. The second grievance involves Petitioner's challenge of the Chairman's decision to remove him from his position as Director of the Division of Vascular Surgery. Petitioner maintains that he had a protected right in the position.

    It is also contended that the Chairman's failure to articulate a legitimate reason for his removal has placed a stigma upon him professionally. It has damaged his reputation which impairs his ability to obtain employment elsewhere.

    
    

62. Petitioner is entitled to a due process hearing on his second grievance. Speigel v. University of South Florida, 555 So.2d 428 (Fla. 2d DCA 1989). While it is legally concluded by the Hearing Officer that Petitioner did not have a protected property right in the administrative position, it is factually determined that his liberty interest could have been adversely affected if the reason for his removal was not clearly established. Any implications of his liberty interest protected by the Fourteenth Amendment should be cured by the Final Order issued by the University which includes this Recommended Order.

    
    

63. Petitioner would have the responsibility of sending a copy of the Final Order to other potential employers and interested persons.

    
    

64. Both the Chairman and Petitioner have valid reasons for their opposing positions in the controversy involving the V.A. Vascular Lab. Reasonable persons can differ on this issue. Therefore, Petitioner should not be stigmatized for his viewpoint. Conversely, the Chairman should not be required to have a Division Director in his Department who does not comply with directives once a decision is reached by the Chairman on a subject.

    
    

65. Petitioner does not have a contractual, tenurial or traditional academic right to the administrative position. He was removed for just cause as he did not assist in the establishment of the V.A. lab within the four week deadline, as directed by his supervisor. Consequently, the Chairman's decision to remove him as Director should be upheld because the position was an administrative appointment subject to Rule 6C-5.225, Florida Administrative Code, which provides:

    
    

    Tenure shall be held as a ranked General Faculty member in an academic department or other equivalent academic unit and shall not extend to administrative appointment in the General Faculty or Administrative and Professional Classification Plan.

    
    

66. The third grievance involves Petitioner's protest of the Chairman's decision to reduce the salary compensation provided by the University to Petitioner during the 1989/90 academic year. After the first academic quarter, the Chairman reduced Petitioner's annual salary by $17,039.97.

    
    

67. The reasons given by the Chairman for the reduction were factually invalid. The Chairman contracted with Petitioner in 1989/90 to work at the University in a faculty position for a salary of $145,000.00. The decision to reduce this amount three months later because Petitioner was no longer Director (the Chairman's decision) and the Division was losing money (as Petitioner predicted) lacks legitimacy.

68. Ordinarily, the funds faculty members receive through the College of Medicine Faculty Practice Plan are salary supplements conditionally allocated by a Department Chairman, subject to funds actually generated by a Division on behalf of the Practice Plan. If the money allocated to Petitioner through the Practice Plan had been a salary supplement, then the Chairman's decision to reduce these funds and the reasons given might have been appropriate. In this case, however, the Chairman earmarked funds generated by the Practice Plan for Petitioner's salary.

    
    

69. The Chairman could not reduce the monthly payment Petitioner received through the Practice Plan to an amount lower than $145,000.00 when combined with the state funded FTEs for Petitioner because the affected monthly checks were salary payments as opposed to discretionary supplements. This salary agreement was made by the Chairman and Petitioner prior to the start of the academic year, well after the directorship had been removed. As a result, the contract should be honored.

    
    

70. In spite of the factual determinations and legal conclusions as to the third grievance, retaliation should not be imputed to the Chairman's actions. The evidence presented overwhelmingly demonstrates that the Chairman was merely attempting to be fiscally responsible in the administration of Practice Plan funds. His reduction of Petitioner's salary as opposed to a reduction of a discretionary supplement was an analytical error.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. The first grievance should be dismissed as the University lacks jurisdiction over the subject matter.

   
   

2. The Chairman's decision to remove Petitioner as Director of the Division of Vascular Surgery in the second grievance should be upheld. Petitioner does not have a protected property interest in the position.

   
   

3. Petitioner should be awarded $17,039.97 in salary pursuant to his employment contract with the University during the 1989/90 academic year.

DONE and ENTERED this 19th day of November, 1992, at Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1992.

APPENDIX

Petitioner's proposed findings of fact in his suggested Recommended Order are addressed as follows:

1. Accepted. See HO #6.

2. Rejected. Contrary to fact. See HO #1-#2.

3. Rejected. Insufficient evidence. See HO #52.

4. Accepted. See HO #8.

5. Accepted.

6. Rejected. Contrary to fact. See HO #29-#33.

7. Accepted.

8. Rejected. Contrary to fact.

9. Accepted for the academic year 1989/90. See HO #49-#58.

10. Rejected. Contrary to the evidence. See Conclusions of Law.

11. Rejected. Contrary to fact. See HO #39 and #46.

12. Rejected. Contrary to fact. See HO #32-#33, #39 and #40.

13. Rejected. Contrary to fact and law. See HO #43-#44.

14. Rejected. Contrary to fact. See HO #40.

15. Accepted 1988/89 and 1989/90. See HO #48 and #58.

16. Rejected. Contrary to fact. See Conclusions of law.

Respondent's proposed findings of fact are addressed as follows:

1. Current employment status beyond the scope of this hearing. Otherwise, accepted. See HO #6.

2. Generally accepted. See HO #3-#5.

3. Accepted. See HO #3.

4. Accepted.

5. Accepted. See HO #3.

6. Accepted. See HO #6.

7. Accepted. See HO #1.

8. Accepted.

9. Accepted.

10. Rejected. Contrary to fact. See HO #49-#50.

11. Rejected. Contrary to fact. See HO #22, #25 and #45.

12. Accepted. See HO #20.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted as to Division Directors. The rest is irrelevant. See HO #35.

17. Accepted.

18. Accepted. See HO #40.

19. Accepted.

20. Accepted. See HO #11.

21. Accepted. See HO #13.

22. Accepted.

23. Rejected. Self serving and irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7.

24. Accepted.

25. Rejected. Irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7.

26. Accepted. See HO #13.

27. Accepted. See HO #14.

28. Rejected. Hearsay. Irrelevant. See HO #5.

29. Accepted.

30. Accepted. See HO #23.

31. Accepted. See HO #23.

32. Accepted.

33. Rejected. Immaterial. See HO #7 and #14.

34. Rejected. Improper conclusion. Petitioner was not required to defend against such allegations in these proceedings.

35. Accepted that Petitioner's V.A. FTE reduction was a V.A. decision.

36. Accepted. See HO #5.

37. Rejected. Irrelevant. See HO #22 and #24.

38. Rejected. Irrelevant. See HO #22 and #24.

39. Rejected. Contrary to fact. See HO #22 and #24.

40. Accepted. See HO #25.

41. Accepted. See HO #47.

42. Accepted. See HO #5.

43. Accepted. See HO #47.

44. Accepted. See HO #47.

45. Rejected as to causation. Not sufficiently established at hearing.

46. Accepted. See HO #30.

47. Accepted. See HO #32.

48. Accepted. See HO #35 and #40.

49. Rejected. Immaterial. See HO #7 and #42.

50. Accepted. See HO #33 and #39.

51. Rejected. Not established at hearing. See HO #7 and #42.

52. Accepted. See HO #25.

53. Rejected. Speculative.

54. Rejected. Irrelevant. See HO #42.

55. Rejected. Contrary to fact. See HO #49-#58.

56. Rejected. Contrary to fact. See HO #49-#58.

57. Rejected. Immaterial. See HO #42, #55-#56.

58. Rejected. Immaterial. See HO #7 and HO #42.

59. Accepted. See Conclusions of Law.

60. Accepted. See HO #26.

61. Accepted. See HO #36.

62. Accepted.

63. Accepted. See HO #55.

64. Accepted.

COPIES FURNISHED:

Jeremy E. Gluckman, Esquire Gluckman & Newman, P.A.

100 Twiggs Street, Suite 220 Tampa, FL 33602

William M. Blackshear, Jr., Department of Surgery, MDC, Box 16 12901 North 30th Street

Tampa, FL 33612

Thomas M. Gonzalez, Esquire Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200 Tampa, FL 33601

Joline Micelli-Mullen, Esquire University of South Florida 4202 E. Fowler Avenue

Tampa, FL 33620

Bryan Burgess, General Counsel University of South Florida ADM Building 250

4202 Fowler Avenue

Tampa, FL 33620-6250

Jeannette Abin Marcus, Clerk Univeristy of South Florida Administration, Room 250

Tampa, FL 33620-6250

Francis T. Borkowski, President University of South Florida Administration, Room 250

Tampa, FL 33620-6250

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM M. BLACKSHEAR, JR., M.D.,

Petitioner,

vs. CASE NO. 90-5992

UNIVERSITY OF SOUTH FLORIDA,

Respondent.

/

FINAL ORDER

On November 19, 1992, a Recommended Order addressing three (3) grievances filed by Petitioner and recommending the following action: that Petitioner's first grievance be dismissed for lack of jurisdiction; that Petitioner's second grievance be dismissed and Respondent's action upheld; and that Petitioner be awarded $17,039.97 pursuant to his third grievance, was entered by Hearing Officer Veronica E. Donnelly of the Division of Administration Hearings. That Recommended Order is attached. Both the Petitioner and the Respondent timely filed exceptions to the Recommended Order.

BACKGROUND

Three grievances filed by the Petitioner were consolidated and heard in one Administrative Hearing held in October 1991. The first grievance was filed by the Petitioner on February 6, 1989 and challenged the termination of his position at the James A. Haley Veteran's Administration Hospital. The second grievance was filed on May 23, 1989 and challenged Petitioner's removal as Director of the Division of Vascular Surgery, Department of Surgery, University of South Florida. The third grievance filed October 20, 1989, challenged a reduction in Petitioner's USF College of Medicine Faculty Practice Plan salary supplement. At all times relevant to the grievances, Petitioner was a faculty member at the University of South Florida College of Medicine.

RULINGS ON FILED EXCEPTIONS

1. In his exception number one, Petitioner seeks an award of attorney's fees under Section 448.01, Florida Statutes. The cited statute does not address attorney's fees. In any event, the applicable statute and the statute under which this Agency has jurisdiction is Section 120.59, Florida Statutes. Under that statute, the prevailing party is entitled to recover costs and reasonable attorney's fees only when a non-prevailing party is determined to have participated in the proceeding for an improper purpose. No such finding or determination was made by the Hearing Officer. Further, as will be discussed hereafter, Petitioner is not a prevailing party. Therefore, Petitioner's exception number one is denied.

2. In exception number two, Petitioner, in essence, takes exception to the entire Recommended Order, and sets forth reasons therefor in Attachment A. Attachment A is a reiteration of Petitioner's position which was adequately asserted before the Hearing Officer. There is competent substantial evidence in the record to support the findings objected to and Petitioner fails to provide support for a contrary conclusion. Therefore, Petitioner's exception number two, Sections A, B, and C is denied.

   
   

3. By memorandum, the Respondent takes exception to the recommended conclusion that the Petitioner had a contractual guarantee or entitlement to supplemental salary compensation from the USF College of Medicine Faculty Practice Plan for the 1989/90 academic year and the ultimate recommendation that the Petitioner should be awarded additional compensation of $17,039.97. For the reasons hereinafter stated, the Respondent's exception is granted.

   
   

   FINDINGS OF FACT

   
   

   Except as hereinafter stated, the Findings of Fact set forth in the Recommended Order are adopted by the Agency:

   
   

   1. Finding of Fact number 52 states: "A written employment contract for the 1989/90 academic year was not placed into evidence." The Agency modifies this finding to the extent that Exhibit No. 56 entered into evidence in the hearing includes a copy of the written employment contract between the University of South Florida and Petitioner for the 1989/90 academic year. This 1989/90 employment contract provides for a .33 FTE appointment as Associate Professor in the Department of Surgery, State appropriated salary rate of

      $25,121.00, and the following special condition: "Your salary may be supplemented with funds derived through the College of Medicine Faculty Practice Plan in accordance with College of Medicine Compensation Policies."

      
      

   2. The first sentence in Finding of Fact number 49 states: "In negotiations regarding Petitioners annual salary for the 1989/90 academic year, the Chairman of the Department of Surgery agreed to pay him a salary of

      $145,000." The Agency modifies this finding to the extent that there is no competent substantial evidence in the record of the existence of a binding written or oral contractual guarantee regarding Petitioner's total annual salary for the 1989/90 academic year. The 1989/90 employment contract included with Exhibit No. 56 provides for a State appropriated salary rate of $25,121.00, and that such salary "...may be supplemented with funds derived through the College of Medicine Faculty Practice Plan in accordance with College of Medicine Compensation Policies." (emphasis supplied). In addition, the only evidence relating to total annual salary was the Chairman's proposed budgeted salary, which included a Faculty Practice Plan supplement, for the academic year 1989/90. Competent substantial evidence in the record indicates that Petitioner understood this proposed budgeted amount to represent nothing different from the proposed budgeted salary amounts for all prior years of his faculty employment at the University. (R II 165, 210, 218, 219, 351, 816, 817). The College of Medicine Faculty Practice Plan policy and the parties' understanding was always, as specifically found by the Hearing Officer, that the Chairman of the Department has the discretion to adjust Faculty Practice Plan supplements based upon availability of funds. (RI 109, 112; R II 40-47, 49, 50, 548, 549, 946).

      In Finding of Fact number 57, the Hearing Officer recognized that the Chairman of the USF Department of Surgery "has the discretion to adjust monthly salary supplements derived through the College of Medicine Faculty Practice Plan based upon the financial condition of the Division and its contributions to the Plan."

      In Finding of Fact number 55, the Hearing Officer found that the Chairman had cited the financial condition of the Division as a reason for the reduction of Petitioner's salary supplement under the Faculty Practice Plan.

      
      

   3. Finding of Fact number 57 states that: "In this case, however, the Chairman had earmarked salary funds for Petitioner through the Plan. These funds were not a supplement, they were part of Petitioner's total salary compensation from the University." The Agency modifies this finding to the extent that there is no competent substantial evidence in the record that any additional salary funds, beyond the State appropriated salary rate of $25,121 specified in the 1989/90 employment contract, are not discretionary salary supplements as provided by the special condition of the 1989/90 employment contract. (R I 109, 112; R II 40-47, 49, 50, 165, 210, 218, 219, 351, 548, 549, 816, 817, 946, Exhibit No. 56).

      
      

   4. Finding of Fact number 58 states that: "Petitioner is entitled to an additional $17,039.97 in salary compensation derived through the College of Medicine Faculty Practice Plan for the 1989/90 academic year." The Agency rejects this finding, which is a conclusion of law, because there is no competent substantial evidence in the record that Petitioner had any binding written or oral contractual guarantee or entitlement to salary compensation beyond the State appropriated salary rate of $25,121 specified in the 1989/90 employment contract. (R I 109, 112; R II 40-47, 49, 50, 165, 210, 218, 219, 351, 548, 549, 816, 817, 946, Exhibit No. 56).

      
      

      In all other respects, the Findings of Facts of the Hearing Officer are hereby adopted.

      
      

      CONCLUSIONS OF LAW

      
      

      The Conclusions of Law of the Hearing Officer are adopted in all respects, except as follows:

      
      

      1. Conclusion of Law number 67, the second two sentences of Conclusion of Law number 68, and Conclusion of Law number 69 are rejected as legal error. There is no competent substantial evidence in the record to establish that the Chairman made a binding written or oral contractual guarantee with Petitioner in 1989/90 to work at the University in a faculty position for a total salary of

$145,000; or that any additional salary funds, beyond the State appropriated salary rate of $25,121 specified in the 1989/90 employment contract, are not discretionary salary supplements as provided by the special condition of the 1989/90 employment contract; or that Petitioner had any contractual guarantee or entitlement to salary compensation beyond the State appropriated salary rate of

$25,121 specified in the 1989/90 employment contract.

The Agency concludes, as a matter of law, that: (1) the 1989/90 employment contract governs the Petitioner's rights with respect to his University salary for the 1989/90 academic year; (2) the 1989/90 employment contract provides that the State appropriated salary rate of $25,121 may be supplemented with funds through the College of Medicine Faculty Practice Plan; (3) the proposed total salary level of $145,000 for the 1989/90 academic year was a proposed budgeted salary, which consisted of the state salary rate of $25,121, VA salary funds, and a salary supplement through the Faculty Practice Plan, (4) Petitioner, having been employed at the University of South Florida College of Medicine since 1979, was fully aware of the terms and conditions of Faculty Practice Plan salary supplements, proposed annual budgeted salary levels, and the authority of the Chairman to adjust the supplements based upon the financial condition of the

Division; and (5) the Chairman's decision to reduce Petitioner's salary supplement through the Faculty Practice Plan was based on a legitimate reason and was within the discretionary authority of the Chairman.

CONCLUSION AND ORDER

Except as previously stated, the Findings of Fact and Conclusions of Law of the Hearing Officer are adopted in all respects. The first grievance is dismissed since this Agency lacks jurisdiction over the subject matter. With respect to the second grievance, the Petitioner does not have a protected property interest in the Division Director position, and the Chairman's decision to remove Petitioner as Director of the Division of Vascular Surgery is upheld. The second grievance is denied and dismissed. For the aforestated reasons, the third grievance is denied and dismissed and the Petitioner is not entitled to an award of additional salary in the amount of $17,039.97. Further, under Section 120.59, Florida Statutes, neither party is entitled to an award of costs or attorney's fees.

NOTICE OF RIGHTS

This FINAL ORDER constitutes final agency action and an Order under Chapter 120, Florida Statutes. Petitioner may obtain judicial review of this Final Order in the Second District Court of Appeal, in accordance with Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure. Commencement of appeal may be made by filing a Notice of Appeal with the Agency Clerk, Ms.

Jeanette A. Marcus, Office of the General Counsel, ADM 250, University of South Florida, 4202 E. Fowler Avenue, Tampa, Florida 33620, and a copy of that notice, together with the filing fee prescribed by law, with the Clerk of the Court within 30 days after this Order is dated as being filed with the Agency Clerk.

This FINAL ORDER is entered this 16th day of February, 1993.

By: Dr. Francis Borkowski, President, University of South Florida Agency Head

Filed with the Agency Clerk, this 16th day of February, 1993. By:

Office of the Agency Clerk

=================================================================

AGENCY FINAL ORDER

=================================================================

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

WILLIAM M. BLACKSHEAR, JR., NOT FINAL UNTIL TIME EXPIRES M.D., TO FILE REHEARING MOTION AND,

IF FILED, DETERMINED.

Appellant,

CASE NO. 93-00927

v. DOAH CASE NO. 90-5992

THE UNIVERSITY OF SOUTH FLORIDA,

Appellee.

/ Opinion filed March 11, 1994.

Appeal from the University of South Florida. Jeremy E. Gluckman of Gluckman, Newman & LeVine, P.A., Tampa, for Appellant. Thomas M. Gonzalez and Gregory A. Hearing of Thompson, Sizemore & Gonzalez, P.A., Tampa, and Joline Miceli-Mullen, University of South Florida, Tampa, for Appellee.

PER CURIAM.

Affirmed.

SCHOONOVER, A.C.J., and ALTENBERND and BLUE, JJ., Concur.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STYLE: William M. Blackshear, Jr., M.D. v. The University of South Florida

COUNTY: Hillsborough APPELLATE CASE NO: 93-00927 TRIAL COURT CASE NO: 90-5992

This cause having been brought to this Court by appeal and after due consideration, the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that further proceedings be had ill said cause in accordance with the opinion of this Court and with tile rules of procedure and laws of the State of Florida.

WITNESS, The Honorable Richard F. Frank, Chief Judge of District Court of Appeal of the State of Florida, Second District, and the Seal of the said Court at Lakeland, Florida on this day.

May 17, 1994

William A. Haddad

Clerk, District Court of Appeal of Florida, Second District

Docket for Case No: 90-005992

Orders for Case No: 90-005992