STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP G. SPIEGEL, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6586

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration of the responses to the Order to Show Cause dated February 13, 1991; that order; the Order Cancelling Hearing and Staying Proceedings entered February 27, 1991; and the Order Removing Stay entered May 20, 1991. From these documents, the following operative facts are determined.

FINDINGS OF FACT

1. Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990.

   
   

2. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing.

   
   

3. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF.

   
   

4. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department.

   
   

5. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of

   speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. In conducting an administrative proceeding, the Hearing Officer acts as alter ego for the agency head and exercises only those powers given to the agency. Agencies are creatures of the Legislature, have only those powers conferred by statute and have no authority independent of that conferred by the Legislature. As a corollary, a Hearing Officer does not have plenary powers. State of Florida, Department of Environmental Regulation v. Puckett Oil Company, Inc., 90-1426, decided April 3, 1991 (Fla. 1st DCA 1991); Department of Professional Reg., Bd. of Medicine v. Marrero, 536 So.2d 1094 (Fla. 1st DCA 1988), review denied, 545 So.2d 1360 (Fla. 1989); Florida Dept. of Corrections

   v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987); Hall v. Career Service Commission,

   478 So.2d 1111 (Fla. 1st DCA 1985); 1 Am. Jur. 2d Administrative Law, section 73 (1962).

   
   

8. Petitioner contends that he had a legitimate and reasonable expectation to continue as Department Chairman beyond the effective date of his contract; that the annual contract as Chairman was modified by prior custom and usage and that the Hearing Officer should consider parole evidence that the so-called one year contract was intended to be a multi-year contract. Not only is this position legally wrong in violation of the parole evidence rule, but it conflicts with Rule 6C-5.225, Florida Administrative Code, which provides in pertinent part:

   
   

   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.

   
   

9. Mohammed v. Department of Education, University of Florida, 444 So.2d 1007 (Fla. 1st DCA 1984) involved the precise issue here contended by Petitioner, i.e., that Petitioner is entitled to reappointment as Department Chairman at close of his contract year. In holding the rules for university appointments clearly authorized the Dean of the College of Dentistry not to reappointment Mohammed as Chairman at close of his contract year, the court went onto state at p. 1008:

   
   

   We also agree with the conclusion that one does not acquire tenure in the administra- tive position of department chairman, thus the procedural rules applicable to eligibility for tenure and the procedural rules for nonrenewal of tenure appointments do not apply in this case, and that the position chairman is an administrative rather than a faculty position under the

   rule, thus the procedural rules for nonrenewal of nontenured faculty posi- tions do not apply.

   
   

10. Although not discussed by the court in ordering the USF to restore Dr. Spiegel to the position of department chairman, it appears that the court ordered specific performance because of the denial of due process in his removal.

    
    

11. Specific performance is an equitable remedy available only when the remedy at law is inadequate. Although courts have held that administrative agencies do not have jurisdiction to enter an order providing for the equitable remedy of specific performance of a contract, Biltmore Construction Co. v. Florida Department of General Services, 363 So.2d 851 (Fla. 1st DCA 1978), it is perhaps more accurate to repeat the maxim that administrative agencies (and hearing officers) have only (and all) those powers conferred by the Legislature.

    
    

12. Where a statute provides that, e.g., a professional contract or continuing contract teacher in the school system may be dismissed only for good cause (Section 231.36, Florida Statutes) and an annual contract teacher may be dismissed during the contract year only for good cause which the statute defines; or that a person may not be discriminated against in employment on the basis of sex, race, religion, etc. (Chapter 760.10, Florida Statutes), the hearing officer is authorized to recommend reinstatement (specific performance) of the contract of employment. However, this is a remedy provided by the statute.

    
    

13. The contract here involved is a personal services contract (as is a teacher contract). It is a familiar and well established doctrine that courts of equity will not exercise jurisdiction to grant a decree for specific performance of a contract for personal services, except in very exceptional cases or under very exceptional circumstances. 48 Fla. Jur. 2d, Specific Performance, Section 110. This rule stems principally from the fact that a decree of specific performance in such a case is likely to be futile, since it is impossible for the court to coerce from the defendant the services contracted for. As there is no effective remedy to require the employee to carry out the services contracted for, the mutuality of remedies doctrine would also preclude ordering specific performance of this contract against the University. 11 Fla. Jur., Contracts, Section 16.

    
    

14. However, that is not the issue here remaining as there is no existing contract for which specific performance may be ordered. What Petitioner here claims is that his contract was not renewed because he exercised his First Amendment right to freedom of speech. Thus, he alleges his constitutional rights were infringed upon or impaired. While the USF denies that Dr. Spiegel's contract as Department Chairman was not renewed because of Dr. Spiegel's exercise of his First Amendment rights, and therefore in derogation of those rights, for the purpose of this recommended order it is assumed that Dr. Spiegel's contract as Department Chairman was not renewed because he exercised his First Amendment rights, and this act of nonrenewal constituted a deprivation of those rights.

    
    

    42 U.S.C.A., Section 1893, provides in pertinent part:

    
    

    Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia,

    subjects, or causes to be subjected, any citizen or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action

    at law, suit in equity, or other proper proceeding for redress.

    
    

15. This statute authorizes an aggrieved party to bring an action in the Federal court system. No authority has been cited to me, and I have found no comparable state remedy available in state administrative proceedings. Accordingly, this tribunal is without jurisdiction to consider Petitioner's allegation that in failing to renew his contract as Department Chairman at the USC, the university deprived him of his First Amendment rights or that the failure to renew his contract resulted from his exercise of First Amendment rights.

    
    

16. Legal maxims that have weathered the ravages of time proclaim that the law does not require the performance of a useless act; and there are some injuries for which there is no legal remedy. If neither specific performance of a personal services contract nor an award of monetary damages can be awarded in an administrative proceeding pursuant to Chapter 120, Florida Statutes, there appears no reason to go through the formal hearing process of a Chapter 120 proceeding. If no remedy for the alleged wrong can be obtained in such an administrative proceeding, the administrative tribunal is without jurisdiction to entertain the cause of action, and the injured party must seek redress in the Federal courts where his sole remedy appears to be monetary damages.

    
    

17. From the foregoing, it is concluded that the action of the USF to remove Dr. Spiegel from his position as Chairman of the Department of Orthopaedics became moot when Dr. Spiegel's contract expired on October 19, 1990; the occupant of an administrative position in the Florida University System cannot acquire or be given tenure in that administrative position; and this tribunal is without jurisdiction to determine whether or not the failure of the USF to renew Dr. Spiegel's contract as Department Chairman was a deprivation of his rights under the First Amendment of the U. S. Constitution or the Florida Constitution.

It is, therefore,

RECOMMENDED

That these proceedings be dismissed.

ENTERED this 20th day of May, 1991, in Tallahassee, Florida.

COPIES FURNISHED:

Steven D. Merryday, Esquire David P. Rhodes, Esquire Post Office Box 3333

Tampa, FL 33601

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

Tampa, FL 33620-6250

Allan Sundberg, Esquire Post Office Box 190 Tallahassee, FL 32302

Sylvia H. Walbolt, Esquire Post Office Box 3239 Tampa, FL 33601

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Francis T. Borkowski President

University of South Florida Administration, Room 250

Tampa, FL 33620-6250

Bryan Burgess General Counsel

Univeristy of South Florida Administration, Room 250

Tampa, FL 33620-6250

K. N. AYERS 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 20th day of May, 1991.

Docket for Case No: 90-006586

Orders for Case No: 90-006586