STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS R. HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4408

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on September 21, 1993 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Christopher P. Jason, Esq.

Barry A. Cohen, P.A.

201 E. Kennedy, Suite 1700 Post Office Box 173077 Tampa, Florida 33672

For the Respondent: Joline Miceli-Mullen, Esquire

University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

William W. Wertz, Esquire Office of the Attorney General The Capitol, PA 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue for consideration in this hearing was whether Petitioner is entitled to a secure source of salary support and $25,000.00 in annual support for his research program from the Respondent.

PRELIMINARY MATTERS

By letter dated April 20, 1992, Petitioner herein, Nicholas R. Hall, filed a grievance against the Dean of the University of South Florida's College of Medicine, Dr. Marvin R. Dunn, M.D., complaining of the failure of the University to continue a secure source of salary support for him, and its failure to provide ongoing $25,000 per year support for his research program. On May 18, 1993, Dr. Dunn responded to the Petitioner's grievance by letter in which he denied the relief requested, suggesting instead that Petitioner had received everything he could legitimately expect to receive from the College. As a

result of that action, on June 14, 1993 Petitioner, through counsel requested review of the denial and thereafter, by letter dated June 24, 1993, Dr. Ronald

1. Kaufman, the University's Vice President for Health Sciences, confirmed Dr. Dunn's determination. As a result of that action, on July 21, 1993, Petitioner filed a Petition for Administrative Hearing to contest the University decision. This hearing followed.

   
   

   At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1 - 16. Respondent presented the testimony of Dr. Herman Friedman, Professor and Chairman of the Medical College's Department of Medical Microbiology and Immunology; Dr. Marvin R. Dunn, Dean of the College of Medicine; and Dr. Anthony J. Reading, Chairman of the College's Department of Psychiatry and Behavioral Medicine. Respondent did not introduce any exhibits.

   
   

   Subsequent to the hearing a transcript was provided and both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner received his Ph.D. from the University of Florida sometime after 1970, specializing in the role of the brain in fighting disease. In December, 1979 Respondent began employment with George Washington University, (GWU), in Washington, D.C. as an assistant professor in the Department of Biochemistry. Approximately 85 to 90 percent of his time was spent in research with some teaching additional. His research was sponsored by pharmaceutical companies both in the United States and Japan and by the National Institutes of Health, (NIH), and the Office of Naval Research, (ONR). He became an associate professor at GWU in 1985, and prior to that time had had no research ties to the University of South Florida, (USF).

      
      

   2. The initial contact regarding the potential for Petitioner to bring his research program to the USF was with Dr. Herman Friedman, Chairman of the USF College of Medicine's Department of Microbiology and Immunology who was serving with Petitioner on a national commission. According to Petitioner, Dr. Friedman invited Petitioner to come to the USF to present a seminar. During this period, Petitioner claims, Dr. Friedman asked him if he would relocate to USF. At that time, Petitioner declined and expressed no interest in leaving GWU. However, he claims, Dr. Friedman invited him back again in late 1986.

      
      

   3. Petitioner came to Tampa in either January or February, 1987, and was seduced by the warm climate. On one of these visits, Dr. Friedman, whose department was without resources to support any additional programs, introduced Petitioner to Dr. Reading, the Chairman of the Department of Psychiatry and Behavioral Sciences at USF and to several other members of the faculty of the College of Medicine. After the initial contact with Dr. Reading, the majority of subsequent contacts were with him and Petitioner ultimately made a presentation to the Department of Psychiatry.

      
      

   4. Dr. Friedman, on the other hand, claims he first met Petitioner wile on a grant site visit at the University of Miami, at which, during general discussions, Petitioner indicated he had heard of a budding project at USF and wanted to know if there were any openings in Friedman's department or in the Department of Psychiatry. Friedman had none. He recalls that Petitioner's approach was one of interest in a move to Florida because he liked the climate; he had family nearby; and he had gone to school in Florida and was partial to it. As a result of Petitioner's interest, Friedman contacted Dr. Reading on

      Petitioner's behalf and when Reading indicated an interest in Petitioner, called Petitioner on Reading's behalf to see if Petitioner would come down for a visit. Petitioner was very interested in doing so when Friedman called, he relates.

      
      

   5. As a result of the prior contacts and visits Petitioner made to USF, on April 20, 1987, Dr. Reading contacted Petitioner with an offer in writing which formalized their prior discussions. These discussions, according to Petitioner, pertained to the security of the position, (would it be totally dependent on grants or would it be backed by state funds), space, and resources available through sources other than the NIH. These issues were important to Petitioner because he was already in a grant dependent position at GWU and could see no reason to leave for another "soft" spot. Further, his career and reputation are dependent upon his research and writing and he could not afford to be in a position without reasonable opportunities for them to continue.

      
      

   6. In this April 20, 1987 letter offering Petitioner a position at USF, Dr. Reading clearly advised Dr. Hall that at the time, he was completely unable to offer a tenured line, but would be willing and able to place him in such a position after three yearly renewable contracts, Petitioner could move onto a tenure earning track. Most specifically, relating to funds, Dr. Reading noted:

      
      

      I will do my best to provide whatever additional support you need to get your program under way, but I need to know more specifically what this would amount to before I can make a definite commitment.

      
      

   7. Petitioner contends this language referred to the $25,000.00 per year to support his research program and the possibility of a large sum of money for setup costs including lab items and refrigerators. It would appear, however, that Petitioner reads more into Dr. Reading's language than is there. No promise of more than effort to support financially is indicated.

      
      

   8. On August 12, 1987, Petitioner wrote to Dr. Reading to accept the position offered and to verify his understanding of the items they had discussed when Petitioner was in Tampa. Petitioner had not made any commitment to move prior to that time even though he had been in continuing contact with both Reading and Friedman. After dispatching his acceptance letter, Petitioner spoke with Dr. Altman at the National Institute of Mental Health, (NIMH), concerning the potential transfer of his grant from GWU to USF. When told this could not be done, Petitioner agreed to re-apply when situated at USF. This NIMH grant constituted approximately 80 percent of Petitioner's salary and on January 21, 1988 he submitted the grant application. To properly submit the application, it was necessary for USF to participate in the process, which it did. At this point, Petitioner had committed to come to USF but had not actually made the move. This grant application was for a continuation of work started by Petitioner at GWU.

      
      

   9. In Section 2, of the background information submitted as a part of the grant application, the university, (Department), "... has made a commitment to develop a secure source of salary support for [Petitioner] by the time his RCDA terminates." This is, Petitioner claims, consistent with the agreement he had with USF, He understood that while all tenure positions were then full, he would be put on a tenure accruing line. The reference to $25,000.00 and secure salary source is, to him, also correct. He asserts Dr. Reading had indicated the funds, if needed, would come from his UMSA funds. (UMSA, not otherwise defined, is, in reality, a non-appropriated source of funds available for

      untilization within the medeical school.) Petitioner claims Dr. Reading also indicated he would work to set up a charitable fund to support Petitioner and that 20 percent of another fund source would be devoted to his work. Dr.

      Reading, however, categorically denies that he at any time promised Petitioner

      $25,000.00 in USF funds or a secure salary support system without condition, either in person, in writing, or by phone. He contends that while he supported Petitioner's NIMH and National Oceanographic and Space Administration grant applications, the above quoted comment in the January 1988 application was incorrect and got through by error. It was corrected in a subsequent grant renewal application.

      
      

   10. Petitioner did not receive a pay check from USF until September, 1988. As of July 1, 1988, he still had not received a written contract from the university. However, in August, 1988, Dr. Hall received a letter from Dr. Nicolosi, USF's Executive Vice President for Health Sciences, offering him a position of Visiting Associate Professor, effective July 1, 1988, and carrying an annual salary of $10,000.00 and a FTE of 20 percent derived from one grant, along with an additional salary of $40,000.00 and a FTE of 80 percent, derived from another grant. The letter stipulated clearly that renewals of this appointment would be contingent upon renewals of the grants from which the salary was to be paid. The letter also noted clearly that positions funded trough grant sources, such as this one, are non-tenure earning. In response, Petitioner wrote a letter accepting the offer. At this point, no written contract had been signed between Petitioner and USF.

       
       

   11. None of the contracts ultimately signed between Petitioner and USF made any reference to support for Petitioner's research program. Careful review of those documents indicates their specifics dealt with length of appointment, salary, tenure status and FTE percentage. Petitioner claims, however, that at no time did he understand the contracts, executed after the fact, contained all facets of his agreement with USF and the issues of space, equipment and grant shortfalls were to be negotiated independently with the department chairman.

       The $25,000.00 he claims he was to receive for those items was, he believed, not included in his compensation but in addition to his compensation.

       
       

   12. In late August, 1989, Petitioner received a letter from Dr. Bunch, then the Dean of the College of Medicine, advising him he was being appointed to a tenure earning position with an FTE of 20 percent. By this time, he was already at USF and running experiments on programs he had initiated in January, 1989.

       
       

   13. When Petitioner initially started at USF he had no problems with funding. The problems did not start until 1989 when, having submitted an expense item to be paid from the $25,000.00 research funds he was expecting, he was told it was not available. When, in an interview with Dr. Reading, he inquired if the university intended to honor its prior promises, he was told there had been a misunderstanding; that there never had been any intention to guarantee the $25,000.00 research portion for more than one year. After that, it was touch and go. This position was confirmed in a December 7, 1989 budget memo to Petitioner from Dr. Reading. In this memo, Dr. Reading refers to a letter from Petitioner in which Petitioner states the $25,000.00 research money was allegedly promised. Reading then asserts he orally corrected Petitioner's misunderstanding of this point, but could not find any record of the conversation. To prevent any further misunderstanding, however, Reading

       thereafter suggested they adopt as the Department's position the terms accepted by Petitioner in his August 12, 1988 letter which dealt specifically and exclusively with salary, tenure, and FTE. In addition, however, Reading added an offer to extend to Petitioner:

       
       

       ... a $25,000.00 line of credit (interest free) for the first two years of your operation here in order to provide needed start-up funds while awaiting grant support.

       
       

   14. This grant was not the only one Dr. Hall was seeking. He had several others in the works at the time and all were granted. They all required USF input and all were administered by the Department of Psychiatry. The school's input in another grant application submitted by Petitioner in April, 1990 referred to its commitment to fund $25,000.00 annually for Petitioner in addition to other expenses depending upon fund availability. A similar inclusion appeared in most, if not all, grant applications until June, 1992 when the $25,000.00 commitment ended. Even then, Petitioner claims, he had no indication there was a problem.

       
       

   15. However, in February, 1992 Dr. Reading informed Petitioner by letter that non-renewal of his faculty contract would be one of the expenditure reduction measures utilized to achieve a reduction in expenses mandated by the Dean. When Petitioner received this letter he consulted with the University's Vice President for Research, Dr. Newcomb, to see what options were available to him. The issue was ultimately resolved, however, when Dr. Reading modified his reduction proposal to eliminate the salary reduction, but not the cut of the

       $25,000.00 subsidy. It must be noted here that at no time was any indication given that the reduction was related to a dissatisfaction with Petitioner's work. It is found that there was no relationship. Petitioner's work was not in issue and was completely satisfactory.

       
       

   16. In discussions with Dr. Reading at that time Petitioner was advised the school could make no funding commitment beyond the first year but that he should submit the next year's grant applications anyway. At that point, four years remained on the Research Scientist Development Award grant set to terminate in May, 1996, which provided 80 percent of his salary. After receipt of the March 17, 1992 Reading letter which reinstituted salary but still cut the

       $25,000.00 subsidy, Petitioner filed a letter of grievance against Dr. Reading. One point of the grievance, dealing with his promotion, is now moot as the promotion was effected. However, the remainder, dealing with salary support and grant subsidy is still in effect.

       
       

   17. After the grievance was filed with the Dean of the Medical School, Petitioner met with Dean Dunn who went over it with him, point by point. Dunn suggested Petitioner meet with Dr. Reading again and he did. Reading, while sympathetic to Petitioner's arguments, indicated there was nothing he could do to satisfy Petitioner. When this was reported to Dean Dunn, he asked Petitioner to allow him to try to resolve the problem by means less formal than a grievance. Petitioner agreed and let the matter rest over the ensuing summer. Ultimately, however, in May, 1993 Dean Dunn advised Petitioner that after careful review of the matter, he was satisfied Hall had received everything he could have expected and, in essence, denied the grievance. Petitioner then initiated Step II grievance procedures through counsel. In June, 1993, Petitioner received the decision of the university's Health Sciences Vice President, Dr. Kaufman, upholding the denial of the grievance.

   18. Petitioner has not received the $25,000.00 subsidy since June, 1992, and this has forced him to reduce his secretarial help by 50 percent. This has impaired his ability to submit grant applications. He has also lost the services of a graduate student who was concerned over the uncertainty surrounding the research and another assistant as well. More recently, Dr. Menzies, a key researcher, has relocated, as has a career technician. Also, a Ph.D. who works for Petitioner has been reduced to 30 percent of prior salary. Together, this all has adversely affected Petitioner's ability to continue his research activity. It has required him to do a lot of his own administrative work which interferes with and cuts down on his time to do research, and he has not been able to publish as he used to do. Therefore, a substantial interest of the Petitioner is involved.

       
       

   19. The removal of the secure source of salary support is a concern to Petitioner because the NIH does not award grants to short term scientists. Institutional support is necessary. Petitioner has informally notified the NIH of the termination of his salary support but is awaiting the outcome of this hearing to make formal notification, if necessary.

       
       

   20. Petitioner admits that nowhere in any of the communications from USF does the term, "secure source", appear except in the school's documentation in support of Petitioner's grant applications. That may have come about because to assist in preparing it, Petitioner gave Dr. Reading a copy of a prior application prepared at GWU which might have contained those words. In any case, they were deleted by Dr. Reading from later applications for Dr. Hall.

       
       

   21. It never occurred to Dr. Hall that the financial condition of the university would ever be such that the $25,000.00 subsidy could not be paid continually. Only the grant application contain any suggestion of ongoing payments. All other documents admitted into evidence which relate to terms and conditions of employment either expressly or by implication indicate the payments would be made on an "if available" basis. The university claims, and such claim is found reasonable, that language means, "as long as the university has the funds available to support a viable immunology program."

       
       

   22. Dr. Friedman was not present at any of the formal negotiating sessions between Dr. Reading and Petitioner. He did attend some of the preliminary meetings and heard Reading indicate to Hall he would "do his best" to provide supplemental money, but he does not know what promises subsequently may have been made by Reading. However, at no time during the preliminary talks he, Friedman, had with Dr. Hall did he make any promises about salary. In fact, he claims to have told Hall that in a state institution such as USF, no promises, even if made, can be formalized unless in writing and signed by the institutional head. All he could do was allow a Hall assistant to work in his laboratory and to provide up to $10,000.00 is supplies and equipment to be reimbursed at a later date. This did not happen because the money for Petitioner's grant never came.

       
       

   23. Dr. Reading unequivocally denies ever committing to fund $25,000.00 of Petitioner's research costs annually though he supported Petitioner's grant applications. He recruited Petitioner to join the faculty at USF and as a part of that process discussed with him funding for research projects in general terms on an annual basis. Reading does not recall Petitioner ever having requested he commit to a certain level of funding for those projects. They had a number of conversations about what Petitioner would need and what the university could provide. What was finally settled on was different than what

       was contained in the initial letters. The negotiations were give and take and while Petitioner wanted support, Dr. Reading had to know what was needed so he would not commit resources he did not have.

       
       

   24. As Reading recalls it, the ultimate conditions were that Petitioner was to get $25,000.00 in start-up funds and then up to $25,000.00 in a "Visa- like" fund which would be replenished. Dr. Reading asserts he could not offer Petitioner $25,000.00 on a recurring basis because he did not have it to offer. Dr. Reading admits that after several years operation on that basis, it might be reasonable to interpret the relationship as Petitioner does because it became apparent Petitioner could never repay the overspending in his accounts. In any case, it was not considered a problem then because Petitioner's research was bringing in large sums ("millions") in commercial funding.

       
       

   25. Dr. Reading is adamant he can expend only so much UMSA funds as he has available. He cannot commit to future funding for which he has not yet received money. The UMSA funds derive from monies paid in by patients treated in the medical school clinics. This source is neither guaranteed nor uniform. Reading also has funds coming in from foundations, which, too, are neither guaranteed nor predictable in amount. Finally, he has a departmental allocation of appropriated funds, little of which may be used in a discretionary fashion. As such, he is in no position to guarantee future payment of funds, the reliability of receipt of which cannot be guaranteed.

       
       

   26. In that regard, Dr. Dunn, the Medical School dean, pointed out that department chairmen do not have the authority to guarantee research funds for the duration of employment nor to guarantee salary support beyond state salary, and Dr. Reading, as department chairman, could not have done so. The only situation which could guarantee continuing payments would be a dedicated endowment fund and even then, these funds generally carry conditions on their use.

       
       

   27. If a federal grant is supporting a faculty member's research, the university is not legally obligated to continue the research or salary support for the principal investigator if the grant terminates. The term "secure salary support" has no meaning other than tenure, but even tenure is not guaranteed. Tenure "accruing" and tenure "earning" lines are not synonymous. Dunn knows of no such term as "tenure accruing." Tenure does not require the expenditure by the candidate of or the passage of any period of time. As a custom, however, certain criteria exist and tenure is earned only by holding a position on a tenure earning line.

       
       

   28. There are written guidelines as to what department chairmen can commit to in recruitment. There are, as well, limits as to what commitments may be made regarding payments and salaries. Some of these are UMSA rules and some are university rules. Any promise as to salary or payment of any funds are always subject to availability of funds. This is the way it has always been in academic circles. The sine qua non on salary support, other than from appropriated funds or federal grant funds, is availability. Without available funds, neither grants nor salary support can be paid. A department chairman can expend or commit only those funds available. These may include UMSA funds, appropriated funds, and grant funds. He or she cannot, however commit monies which are not available. The university has lived up to the terms of its agreement with Petitioner and has provided all he can reasonable expect in funding and salary support.

       CONCLUSIONS OF LAW

       
       

   29. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   30. The resolution of grievances against the Respondent, USF, is governed by the provisions of Rule 6C4-10.010(3) which places the burden of proof on the grievant, Petitioner herein, who must establish his claim by a preponderance of the evidence. Because this case involves a substantial interest of the Petitioner, the matter may be processed under Section 120.57, Florida Statutes.

       
       

   31. Petitioner and USF entered into a series of employment contracts covering the period from August 8, 1988 to August 8, 1993. These contracts were in written form and were signed by Petitioner and various representatives of the university. As such, they contain all the enforceable terms of the employment agreement between the parties. The parol evidence rule, which provides that parole evidence is inadmissible to contradict, vary, defeat or modify a complete and unambiguous instrument, or to change, add to or subtract from such instrument, or affect its construction, prohibits acceptance of what Petitioner offers as other evidence of the true intention of the parties regarding the university's provision of financial support to his operation.

       
       

   32. Petitioner asserts the state university personnel contract between him and USF does not purport to set forth the entire agreement between the parties. This is, to some degree, true. While it does not address the nature of the work to be performed, the nature of the research to be conducted, and the transfer of Petitioner's existing grants to USF, the prohibition against outside work, or the details of the logistic support to be provided, it, nonetheless, clearly defines the terms of the relationship between the parties. It establishes the term of employment, the characterization of the position to be occupied, and the compensation to be provided for satisfactory performance and the limitations thereon. Taken together, these fundamentals constitute the contract between Petitioner and the university. The other items are post-contract negotiables incidental to, but not a part of, the contract.

       
       

   33. Clearly, university officials signed grant applications relating to Petitioner's work which contained indications other university based funds than those provided for by the pertinent employment contracts would be provided to him. However, these grant application statements were not a part of the employment contract forming the basis for the Petitioner's employment and compensation, and in any event, credible evidence from the medical school authority who signed those application submittals indicates they were, at least those indicating a guaranteed source of additional funding, in error.

       
       

   34. There is a significant disagreement between the parties regarding the details of the establishment of the employment relationship. Petitioner claims he was recruited by USF personnel and convinced to move his research operation from GWU to USF. At this juncture, USF officials, while acknowledging their pleasure in having Petitioner and his work at their institution, and admitting to ultimately offering him some incentives to make the move, insist, however, that it was he who made the initial overtures regarding employment. This clear inconsistency in the evidence does not aid in the resolution of the problem nor does it add support to Petitioner's claim.

   35. What is abundantly clear, however, is the fact that university based funds to support Petitioner's work, beyond those which were called for in the employment contracts, became unavailable and could not be continued. The university's failure to continue the extra support beyond that called for in the employment contracts is not violative of any contractual or other right vested in Petitioner. While it may be said the initial intent of the parties to the agreements here was to provide additional support, the continuation of that extra funding was totally contingent upon the availability of funds to provide that support. Clearly, the university, as an agency of state government, while it may enter into multi-year contracts with employees, cannot lawfully promise that which it does not then have or have some firm and lawful expectation to receive.

       
       

   36. Prior to the hearing, Respondent moved to dismiss Petitioner's grievance on the basis it was untimely. The motion was renewed at hearing and in the post hearing submittals. Respondent bases its argument on the fact that because Petitioner knew, as early as 1989, that he was being placed on a 20 percent tenure earning line, he should have filed his grievance at that time. The motion is denied. While the early contracts called for Petitioner to be on a 20 percent tenure earning line, the issue of tenure was resolved prior to hearing, and the evidence shows that Petitioner received much of what he claims he was promised up through June 30, 1992. His negotiations with the university regarding the termination of additional support, which were subsequently converted to the formal grievance, began almost immediately thereafter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued by the University of South Florida finding the claims by Petitioner to be without legal merit and dismissing the grievance filed.

RECOMMENDED this 18th day of November, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 18th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4408

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

1. Accepted with the modification that the evidence does not clearly establish who made the initial contact regarding potential employment.

2. The use of the phrase, "desiring that Dr. Hall relocate", should not be interpreted as meaning the university actively sought Petitioner out to seek his move.

3. Accepted.

4. & 8. Accepted and incorporated herein.

9. & 10. Accepted and incorporated herein.

1. Accepted as Petitioner's interpretation of the comments of Dr. Reading.

2. & 13. Accepted and incorporated herein.

14. & 15. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. & 18. Accepted and incorporated herein.

19. & 20. Accepted and incorporated herein.

1. Accepted.

2. & 23. Accepted as to authority but not dispositive of the issue of availability of funds.

FOR THE RESPONDENT:

1. & 2. Accepted and incorporated herein.

3. - 5. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. & 8. Accepted and incorporated herein.

9. - 12. Accepted and incorporated herein.

13. - 15. Accepted.

1. Accepted.

2. & 18. Accepted.

1. Accepted but not a proper Finding of Fact. More a statement of the basis of Petitioner's position.

2. & 21. Accepted.

1. Rejected.

2. Accepted and incorporated herein.

COPIES FURNISHED:

Christopher P. Jayson, Esquire Barry A. Cohen, P.A.

201 East Kennedy Boulevard., Suite 1700 Post Office Box 173077

Tampa, Florida 33672

William W. Wertz, Esquire Office of the Attorney General The Capitol, PA 01

Tallahassee, Florida 32399-1050

Joline Micelli-Mullen, Esquire Office of the General Counsel University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

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 which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS R. HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4408

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

FINAL ORDER

This matter was heard before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on September 21, 1993. The Petitioner, Nicholas Hall, was represented by Christopher P. Jayson, Esquire, and the respondent, University of South Florida, was represented by Joline Miceli- Mullen, Esquire and William W. Wertz, Esquire. A Recommended Order was filed on November 18, 1993.

ISSUES PRESENTED

The issues considered at both the grievance level and at Administrative Hearing were whether the Petitioner is entitled by contract or law to a secure source of salary support and to annual department support in the amount of

$25,000.00 for research conducted by him at the University of South Florida.

FINDINGS OF FACT

1. The Findings of Fact of the Hearing Officer as set forth in the Recommended Order are adopted in their entirety except with respect to the following:

   
   

   1. That part of Findings of Fact number 5 and number 6 which characterize the April 20, 1987 letter authored by Dr. Reading as an offer is rejected as a conclusion of law. Further, it is found that the only evidence characterizing the letter as an offer is the Petitioner's characterization. It was intended by Dr. Reading, its author, as a letter within the context of negotiations. In any event, the letter, which speaks for itself, does not appear to be a contractual offer. Competent substantial evidence does not support the conclusion that the letter is a contractual offer. In all other respects, these Findings

      of Fact are adopted. (Tr. 40-41; 251; P. EXH 1).

      
      

      CONCLUSIONS OF LAW

      
      

   2. The Conclusions of Law set forth in the Recommend Order are adopted in their entirety.

FINAL ORDER

In accordance with the foregoing, it is, therefore, ORDERED THAT:

1. The Recommended Order is Supported by competent substantial evidence and is adopted.

   
   

2. The Petitioner's grievance is denied.

This FINAL ORDER is entered this 9th day of December, 1993.

ROBERT A. BRYAN

Interim President University of South Florida 4202 E. Fowler Avenue Tampa, Florida 33620-6205

Filed with the Clerk of the University of South Florida this 9th day of December, 1993.

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.

Docket for Case No: 93-004408

Orders for Case No: 93-004408