Findings Of Fact Petitioner, Dr. Erb Fontenot, has been associated with Florida State University (FSU) for over 14 years, after having taught for 14 years in public schools in Louisiana, and two years at the University of West Florida in Pensacola. He originally enrolled at FSU to complete his PhD and simultaneously was hired as an instructor on the faculty of the College of Education. His written appointment to the faculty for the academic year 1975- 1976 was as a non-tenured faculty member at the rank of instructor in the College of Education, Department of College- Wide Instructional Services. The document reflected the special terms or conditions of employment as follows: To teach such courses as are assigned. To conduct research of a publishable quality. To render such other services as the Department, College, or University might assign. The Dean of the College of Education in 1975 was Dr. James L. Gant, who served in such capacity from 1974 to 1983. In 1975, Dean Gant had two associate deans who served with half-time teaching duties and half-time administrative work in his office. Petitioner was also assigned administrative duties half-time as Special Assistant for Academic Affairs and Personnel Relations and the remaining half of his time for instructional duties as assigned. There was also a Director of Planning in the Dean's office who similarly performed administrative duties half-time and teaching duties half-time. During succeeding years, Dean Gant periodically reassigned his staff as the need arose or upon the request of staff members. As a result, re-assignments occurred from time to time which were within the discretion of the Dean. At the time Dean Gant assumed his duties as Dean, the position of Special Assistant for Academic Affairs and Personnel Relations was not a full-time administrative position even though it was so designated in the college's 1972 organizational guide. However, Petitioner testified that during the period preceding Gant becoming Dean of the college, he (Petitioner) was a full- time administrator who taught perhaps one or two courses each semester. His testimony was uncontroverted in this regard and is accepted. Petitioner's contracts after 1976 show appointment Modifier B which is for courtesy faculty status. "Courtesy" faculty is defined in Rule 6C-5.105(1)(i), F.A.C., as "those appointments to a departmental faculty which do not include compensation, may include special faculty privileges such as voting in departmental affairs, and are made in accordance with regular faculty qualifications. . . ." Testimony at the hearing shows that such a status normally involves teaching in a department of a college other than that to which the faculty member is assigned. (Testimony of Petitioner, Gant, Kropp, Edwards, Petitioner's Exhibits 17, 19, Respondent's Exhibits 4-5) At a time undisclosed by the evidence, Petitioner received his doctorate degree and was awarded the academic rank of assistant professor. His employment contract for the 1978- 1979 academic year reflects that he was in a tenure-earning appointment and classified as Director and Assistant Professor under Class Code 9082. The contract reflected special conditions of employment were for him to serve as Special Assistant for Academic Affairs and Personnel Relations. The Instructional and Research Class Code 9082 under the title Director and Assistant professor is described as follows: An academic employee who shall hold the qualifications of the rank of 'assistant professor' and whose major responsibility is the administration of an academic/county research center, institute, or inter- disciplinary function or budgeted entity. This position, being an academic function of the university, is funded by the instructional and research budget and is a faculty class. Under Article VI of the Florida State University Constitution (Rule 6C2-1.04(6), F.A.C.), an assistant professor is considered ineligible for tenure or for re-appointment beyond a seven year maximum. A prerequisite for consideration for tenure is that the faculty member hold the rank of associate professor. (Petitioner's Exhibits la, 15a) Petitioner's contracts for the 1980-1981 and 1981-1982 academic years were basically the same as that for the 1978-1979 academic year. (Petitioner's Composite Exhibit 18) Several years before Petitioner had reached the time when he would be subject to dismissal if tenure had not been obtained, Dean Gant had several discussions with him concerning his status at the university. Petitioner had not been promoted to associate professor and therefore was then ineligible for tenure consideration. Dean Gant pointed out to Petitioner the fact that he needed to conduct the necessary research and teach more in order to be able to meet tenure requirements which could result in recommendations by the faculty and the University for tenure. Petitioner raised questions as to whether or not he could obtain tenure through his performance of administrative duties and Dean Gant indicated that such a result would be unlikely under the normal tenure process because of the necessity for approval by departmental faculty. Eventually, when it became apparent that Petitioner was not going to be promoted, Dean Gant talked with him and decided that a way of keeping him on the faculty was to take him off the tenure-earning track so that he would not be under the "up-or out" rule. (Testimony of Gant) In furtherance of his discussions with Petitioner, Dean Gant thereafter conferred with Dr. Daisy Flory, the University's Dean of Faculties concerning the possibility of retaining Petitioner by placing him in a non-tenured administrative position in order that he could have time to work on his teaching and do research prior to returning to a tenure-earning position. She agreed with this plan and, therefore, by letter of March 24, 1982, Petitioner made a formal request to Dean Gant that his employment status be changed to reflect an administrative and service role with a courtesy rank in the Department of Childhood, Reading, and Special Education in conformity with Article VI of the University constitution. The pertinent provision which is reflected in Rule 6C2-1.04(6)(a)7a, FAC, provides in part as follows: Persons holding an administrative or service role normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive upon request a tenure-earning appointment in an academic unit. The "rule" referred to in the above-cited provision is the "up-or out" rule relating to non-tenured employees. Dean Gant forwarded Petitioner's letter to Dr. Flory asking that she take appropriate steps to effectuate the change and by memorandum dated April 1, 1982 she indicated that the request had been received and filed in Petitioner's file to indicate his "changed situation." Nevertheless, Petitioner's employment contracts for the 1982-1983 and 1984-1985 academic years reflected that he was still in a tenure-earning appointment. During these years, regardless of the "changed situation", Dean Gant still considered that Petitioner was at the disposal of his academic department head for 50 percent of his time. As a practical matter, Petitioner performed most of his duties in his administrative role and taught only once or twice each term, usually in the late afternoon or evening. (Testimony of Gant, Petitioner, Flory Deposition (Respondent's Exhibit 2), Petitioner's Exhibit 5, 18) Dean Gant retired in December, 1982 and was- succeeded by Dean Bruce W. Tuckman. Dean Tuckman apparently took a different view of Petitioner's situation and considered him to be engaged in a full-time administrative position. This was evidenced by the Dean's memorandum to Dr. Gus Turnbull, University Provost, dated November 2, 1984, whereby the Dean requested that Petitioner receive a direct promotion to the rank of associate professor and tenure in the College of Education. Dean Tuckman pointed out that Petitioner's role was considered unique in comparison to other professors seeking promotion and tenure through the normal process since his heavy administrative assignment had limited his participation in departmental academic activities. Favorable action apparently was not taken on the request since Petitioner remained in the rank of assistant professor. Dean Tuckman's evaluation of Petitioner on May 7, 1985, was "outstanding" and reflected that his primary duties were in administration. In the summer of 1985, Dean Tuckman sought and obtained the approval of Vice-President Turnbull of a salary increase of $6,056 for Petitioner with the stated basis of expansion of his duties to include the office of administration, the business office, coordination of personnel matters, and part of the duties resulting from the loss of an associate dean. (Petitioner's Exhibits 4, 4a, Respondent's Exhibit 1) Dean Tuckman was thereafter assigned to other duties. Petitioner's employment contract for the 1985-1986 academic year was signed on August 7, 1985 by Dean Steve Edwards, Deputy Provost and Dean of Faculties. The contract was similar to those of past years except that it showed that Petitioner was in a non- tenure-earning status and the special conditions of employment were to serve as Director of Administration, Academic Affairs and Personnel Relations. The classification code was 9082 with title of Director and Assistant Professor. (Testimony of Edwards, Petitioner's Exhibit 1) Dr. Robert L. Lathrop was named Interim Dean of the College of Education and assumed those duties on or about September 1, 1985. His previous position had been as Director. for the Center for Studies in Vocational Education, a research organization attached to the College of Education. At the time Dean Lathrop was appointed, the Vice-President of the University, Dr. Turnbull, was engaged in a major strategic planning activity whereby he assigned to all of the college deans the requirement to develop a strategic plan setting major goals for the next five years and securing faculty consensus on those goals. The College of Education was perceived by the administration as being disorganized with the faculty having a lack of confidence in its administration. Accordingly, one of the major roles that Dean Lathrop was charged with by the Vice-President was to restore faculty confidence in the governing structure of the college. After looking into the situation and talking with the individuals who had leadership roles, including the staff and department heads of the college, Dean Lathrop determined that he needed to bring more active faculty representation into the administration of the Dean's office. To this end, he appointed two half-time associate deans from the senior faculty of the college. He examined the functions that Petitioner had been assigned under the prior Dean and his manner of performance. He found that department heads had not received their budget statements for a considerable length of time, that personnel actions had often been delayed and that it was difficult to get decisions in this respect. Dean Lathrop concluded that Petitioner had been assigned too many responsibilities. He also determined that he needed to take over personal control of the distribution of the budget and distribution of faculty assignments in order to exert real leadership in the college. It is important that the Dean be able to move the faculty around where they are most needed and, since there are a limited number of positions, the more utilization he makes of personnel for administration, the less there are for teaching. He therefore determined that all members of the Dean's staff, with the exception of one person who had a commitment from the former Dean, should carry half-time assignments in the Dean's office and half-time assignments in an academic department. (Testimony of Lathrop) Dean Lathrop met with Petitioner in September concerning the latter's long-range career plans, and Petitioner indicated that he desired to continue in academic administration. Dean Lathrop pointed out to him that there is no tenure in an administrative position and that he should give some thought to working toward tenure during the period that the tenure "clock" had stopped running for him and he should utilize this period of time to pursue activities related to obtaining tenure. At this time, Petitioner offered to perform whatever function in the new administration that Dean Lathrop regarded as being appropriate to the needs of the college. Later, Dean Lathrop met with the members of his staff individually, including Petitioner and announced his plans for their assignments. Although Dean Lathrop did not recall that Petitioner voiced any serious objections at that time, he later became aware of a memorandum from Petitioner to the President of the University dated September 24, 1985, in which he protested the reduction and reassignment of some of his former duties and transfer of staff and clerical personnel. Petitioner characterized the reorganization as being retaliatory, punitive, unethical, subversive, and racially motivated. He further requested that an immediate investigation be conducted of the activities and actions taken against him. (Testimony of Lathrop, Petitioner's Exhibit 7) By memorandum of September 25, 1985, Dean Lathrop advised Petitioner of his assignment change as follows: This is in confirmation of my verbal change of your assignment about which I informed you in our conversation of September 18, 1985. Effective that date, I relieved you of responsibilities associated with the Director of Administration portion of your assignment. For the remainder of the academic year I ask that you continue your responsibilities with respect to Affirmative Action, grievances and as ombudsman. This should free up approximately 50% of your time this Fall which may be useful in preparing to assume that proportion of time in your academic department next Spring. Thus, your Spring assignment would be 50% Dean's Office and 50%. Childhood Education. A further memorandum, dated September 27, 1985, made reference to Petitioner's memorandum of September 24 and expanded more specifically on the reassignment of duties with reference to a listing of responsibilities for the Director of Administration and Director of Academic Affairs and Personnel Relations, as contained in the college Guide to Organization, Internal Policies, and Some Procedures. This was a compilation of various policies and duties of positions that had been issued during the time when Dr. Gant was the Dean. However, the description of duties for a particular position was designed to assist personnel of the college in ascertaining the division of assigned responsibilities in the dean's office. They are not position descriptions as contemplated in the career service system because faculty members are not career service employees. Dean Lathrop's memorandum explained that he had distributed the former responsibilities of the Director of Administration portion of Petitioner's former responsibilities for the conduct of the college's business office and word processing centers to himself, department heads, and other staff personnel. These responsibilities had included fiscal management of college funds, personnel actions, and space utilization. The staff position of Director of Academic Affairs and Personnel Relations carried an "ombudsman" role and recommendations to the dean on faculty promotion and tenure, faculty student relations, liaison with university staff offices, affirmative action matters, and various other college administrative functions. These responsibilities were considerably scaled down, as indicated in Dean Lathrop's memorandum. Generally, Petitioner's remaining duties consisted of student matters, affirmative action and minority programs, assisting in the election process for college committees, and monitoring compliance with the Family Educational Rights and Privacy Act and the Administrative Procedure Act. By memorandum dated October 1, 1985, to Dean Lathrop, Petitioner requested that they meet with Dr. Edwards and Dr. Groomes concerning his situation, but there is no evidence that such a meeting took place. (Testimony of Lathrop, Petitioner, Petitioner's Exhibit lb, 8-9, Respondent's Exhibit 6) Petitioner contends that he has always been a member of the Professional Staff of the university and as such has the assurance of annual recommendation for re-appointment in his administrative position. Article VII of the Florida State University constitution, which appears in Rule 6C2-1.04(7), FAC, states pertinently as follows: . . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies recommended by the Heads of their respective units and approved by the President of the University and Board of Regents. There are three categories of employees at Florida State University under three pay plans. These are Career Service employees, Administrative and Professional (A&P) employees, and faculty employees. All faculty employees, including those performing substantial administrative duties such as Petitioner, are in the faculty pay plan. Members of the Professional Staff are not in the faculty pay plan, although they hold academic appointments and are assigned faculty rank under Article VII of the university constitution. All members of the Professional Staff are under the A&P pay plan, but all A&P employees are not members of the Professional Staff. A&P employees are traditionally administrative personnel, such as those assigned to the offices of student affairs, business operations, comptroller's officer, admissions, registrars and the like. "Professional Staff" under Article VII of the constitution was a category initiated to cover librarians. These individuals were not members of the faculty and therefore the constitutional provision provided a way to hire professionally trained individuals under conditions that they would find acceptable by the assignment of academic rank. These individuals are not under the faculty pay plan and are not members of the faculty in that sense. Petitioner's status is determined by the Class Code 9082, and he is not a member of the Professional Staff. If he returned to full-time teaching duties, as is usually the case with faculty administrators, he would be under a different class code. (Testimony of Edwards, Parry, Flory Deposition, Respondent's Exhibit 2, Petitioner's Exhibit 2) As a faculty member whose responsibilities included administrative responsibilities involving supervision over other employees by virtue of his designation as a "Director," Petitioner's Class Code 9082 was not covered under the collective bargaining agreement between the state university system of Florida and the United Faculty of Florida. However, University officials and Petitioner acknowledge that the principles embodied in the agreement are ordinarily applied to other faculty personnel, such as Petitioner, unless modified by the Dean of the College. Article 9 of the Collective Bargaining Agreement provides that annual assignments of employees shall not be imposed arbitrarily or unreasonably, and provides for a procedure to resolve assignment disputes. However, these provisions deal with disputes filed prior to the effective date of the assignment. In this case, Petitioner does not dispute the original assignment which was reflected in his 1985 employment contract, but with changes in the assignment that took place after its effective date. (Testimony of Petitioner, Parry, Edwards, Petitioner's Exhibit 3) The past and present University officials who testified at the hearing uniformly agree that a college Dean has the authority to reorganize and re-allocate staff functions in order to accommodate the changes that he feels necessary to efficiently supervise the administration of the college. Each Dean has a different style and, as a former Interim Dean of the College of Education put it: "The Dean can name his team." James Parry, Director of Human Resources, Personne1 Policies and Labor Relations for the Board of Regents, supported the view that a Dean can assign his personnel freely, and that the need for such flexibility is the reason why no formal position descriptions are required for faculty members. Dr. Edwards, Dean of Faculties, testified that a Dean is authorized to assign duties and to change them during the contract period. According to Dr. Edwards, the "special conditions" which are sometimes included in annual employment contracts such as that of Petitioner, are meant to place special emphasis on some part of the functions of the position. They indicate that the administrative part of the faculty members duties will be concentrated in certain areas. However, Deans can assign specific duties from the functions or titles shown in the special conditions. If there was an intent to restrict an employee solely to administrative duties, the special conditions would state "to only serve" in a particular capacity, otherwise, the duties mentioned under the special conditions portion of the contract are subject to reassignment. Also, a faculty member with academic rank must have an assignment that would permit him to perform the duties of that rank. (Testimony of Gant, Kropp, Parry, Edwards, Flory Deposition (Respondent's Exhibit 2)) During the time that Dean Lathrop was serving as Director of the Vocational Education Center in the College of Education, several situations arose that generated employee complaints. These included such matters as the reclassification of the librarian position, and the assignment of duties to a library technical assistant. The latter complaint was later withdrawn, and the reclassification action was also withdrawn after a recommendation to that effect by a university grievance committee. Although a University Equal Opportunity Committee, chaired by Petitioner, had a subcommittee look into the practices of the Education Center to determine if there was any practice of discrimination, the subcommittee found that the main problems in the center were with job classifications and funding of programs and made no findings of any discrimination. Routine personnel action requests of Dean Lathrop concerning the Education Center were reviewed by Petitioner prior to decisions by the Dean. These included matters such as recommendations for salary increases, promotions, establishment and reclassification of positions, and layoff actions. As can be expected, some of Lathrop's requests were approved and some disapproved. Petitioner is of the view that because he recommended disapproval of some of the requests, Lathrop was biased against him and that this resulted in his reassignment of responsibilities in 1985. Dean Lathrop denied any such personal feelings and there is no evidence to establish Petitioner's claims in this regard. In fact, Dean Gant testified that, during his tenure, Lathrop had managed the Center in a very competent manner, protected employee's rights, and never evidenced any discriminatory intent or retaliation against anyone. (Testimony of Petitioner, Lathrop, Gant, Respondent's Exhibits 1la-c, 12-13) Petitioner performed his administrative duties prior to the 1985-1986 school year in a creditable manner. Dean Gant characterized his performance as "excellent" and Dean Tuckman gave him an "outstanding" evaluation during the 1984-1985 school year. (Testimony of Gant, Petitioner's Exhibit 4a, 6) It is agreed by the parties that Petitioner's salary, leave, health and medical or retirement benefits under the 1985- 1986 contract have not been reduced. (Prehearing stipulation)
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.
Findings Of Fact Petitioner is a non-profit corporation registered in Florida. It is a professional association whose membership constitutes a majority of licensed Florida hearing aid dispensers. Respondent regulates the dispensing of hearing aids (and thus Petitioner's members) pursuant to Chapter 484, Part II, F.S. Under Section 484.044, F.S., Respondent is required to establish an apprenticeship program by rule. Rule 21JJ-8.01, F.A.C., established such a program. Subsection (3) of this rule now provides: (3) Direct Supervision: A relationship in which the sponsor is responsible for all work being done and gives final approval to work performed by the trainee. The proposed amendment, which is herein challenged, would add the following language to the above provision: The sponsor or designee must be physically present at the time a hearing aid is delivered to the client. Rule 21JJ-8.03, F.A.C., divides the six month training program into Stages I and II, each of three month's duration. The functions of dispensing hearing aids and counseling clients may be performed only by Stage II (advanced) trainees. Respondent considers the installation and delivery of the hearing aid to be the most critical step in the process of hearing aid dispensing, and believes it is necessary for the sponsor or another licensed individual to be present. Petitioner argues that this is unnecessary if the apprentice has been properly trained, and that the decision of the sponsor to be present or elsewhere should be within the sponsor's discretion. Both parties called duly qualified expert witnesses who are familiar with the apprenticeship program. All witnesses are currently licensed hearing aid specialists. Petitioner's three witnesses are present or former presidents of its society. Respondent's two witnesses are current members of its beard. Petitioner points out that under the present rule, even with the proposed amendment, a trainee can interview, test, take ear mold impressions, sell and discuss financing without the sponsor being physically present. Petitioner argues that such steps are as critical as final delivery, and that mandatory sponsor presence at the last stage is not required to protect the public. Further, Petitioner claims that sponsor presence may destroy the confidence of the client who perceives that his fitting must be approved by a third party. Finally, Petitioner contends that the requirement for sponsor presence will prevent him from conducting essential business elsewhere to his economic detriment. Respondent established that delivery is the last scheduled contact with the client, and is therefore more critical than earlier steps such as testing and taking impressions since any mistake or omission must be detected and corrected at this point. Respondent also established that an improperly fitted hearing aid can cause client dissatisfaction or further damage to the client's hearing. Respondent noted that 20 percent to 40 percent of applicants fail the hearing aid specialist license examination. Thus, Stage II trainees cannot be considered qualified and require close supervision. Additionally, Respondent correctly points out that clients who are assigned to trainees should be aware of that fact and therefore should not be surprised by the presence of the sponsor during their fitting, or at any other stage in this process. Finally, the sponsor's presence at the fitting will permit him to observe the trainee's work directly and thereby facilitate instruction. No study was conducted to determine whether or not the public is being injured by improperly supervised trainees installing hearing aids. Neither has Respondent conducted a detailed economic impact study. The subject of direct supervision and the proposed rule amendment were, however, discussed at Respondent's April 28, 1984, board meeting. Petitioner's members who were present raised objections at that time and pointed out the possible financial detriment of requiring the sponsors or licensed dispensers to be physically present. Petitioner's assertions of adverse economic impact were not supported by any survey, study or other evidence of a substantial nature. Rather, Petitioner established only that scheduling inconvenience (rather than direct economic loss) could result from adoption of the proposed rule amendment. The requirement for a sponsor to be physically present when the trainee is fitting a client would indeed prevent him from working elsewhere at that precise time. However, it does not follow that a business or financial loss would result from this inconvenience. Finally, it must be recognized that the apprenticeship program is voluntary and participation by licensed hearing aid dispensers is not required. In fact, two of Petitioner's three witnesses do not currently participate in this program.
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact Case History This case is presented for consideration based upon the Petition for Determination of the Invalidity of Rule 100-48.27(1) and (2), Florida Administrative Code, and the October 16, 1981, memorandum. This Petition was received by the Division of Administrative Hearings and assigned for consideration to the present Hearing Officer by order of the Acting Director of the Division of Administrative Hearings, dated March 23, 1982. An amendment was allowed on April 7, 1982, which brought about the deletion of George Selis and Harold A. Peck, Jr., as party Petitioners and added the party Petitioner Irene Selis. On April 9, 1982, a Prehearing Conference was held in which oral argument was allowed on Petitioners' Motion to Compel Answers to Interrogatories and Request for Official Recognition and on Respondent's Motion to Dismiss, Motion for More Definite Statement, Motion to Strike the Amended Petition and Motion to Expedite Discovery. An order was entered on April 12, 1982, which took Official Recognition of Items 1 through 6 in the request and reserved ruling on Items 7 through 9. Respondent's Motion to Dismiss, Motion to Strike and Motion for More Definite Statement were denied and the Amended Petition, as acknowledged before, was allowed. Petitioner's Motion to Compel Answers to Interrogatories related to the first set was denied and was denied concerning the second set with the exception of number 5 which was granted. Respondent's Motion to Expedite Compliance with the Amended First Request for Production was granted. At the hearing on April 16, 1982, Item 6 of the Petitioners' Request for Official Recognition was substituted for by stipulation of counsel and Respondent's substitute item was accepted. Items 7 through 9 of the Request for Official Recognition were admitted without objection. In the course of the final hearing, Petitioner presented Jay Alan Bertoch, President of the Florida Hearing Aid Society; George C. Martinez, member of the Board of Directors of the Society and Barbara Stanley, member of the Board of Directors of the Society. Martinez and Stanley also appeared in their individual capacities as registrants who employ and supervise trainees. Benjamin T. Wrubel and Howard Griesdorf, Stage II trainees in hearing aid programs in Florida under the supervision of Irene Selis, a named Petitioner, gave testimony. Respondent presented as a witness, Ralph Gray, Program Administrator, Hearing Aid Licensing, State of Florida, Department of Health and Rehabilitative Services. Substantive Facts Petitioner, Florida Hearing Aid Society, Inc., is a nonprofit corporation duly registered in Florida, composed of approximately 270 of the 435 licensed and regulated fitters and sellers of hearing aids. In addition, there are trainees who are seeking licensure as fitters and sellers and manufacturers of hearing aids who are members of the Society. The licensees/registrants who are members of the Society are authorized to employ and supervise trainees in keeping with the provisions of Chapter 468, Florida Statutes, and Rule 10D- 48.27(1) and (.2), Florida Administrative Code. Trainees who are supervised by Society members and other registrants are required to serve a six-month apprenticeship which is divided into three stages: Stage I is a one month training period; State II is a two month training period and Stage III is a three month training period. Completion of this apprenticeship is necessary before the apprentice is eligible to become a registrant. The purposes of the Society, as set forth in its Articles of Incorporation, are as follows: To promote good will and cooperation among the hearing aid dealers in the State of Florida. To promote the welfare, in so far [sic] as hearing is concerned, of the hard-of-hearing public. To improve the professional standards of the hearing aid dealers of the State of Florida, and to inculcate among the members ethical principles that will lend dignity to the profession and insure [sic] continued public confidence in the profession. To promulgate among the general public knowledge and understanding as to the use and and value of instruments for the aid to hearing. To improve methods of dispensing, fitting and using hearing aids and to improve such aids. To foster and encourage the development of a closer relationship between the members of the general public, hearing aid dealers in the State of Florida, and the medical profession and others working and allied to the field of audiology; and especially by the coordination of professional and lay efforts, services and assistance. To foster the trade, profession and interest of all hearing aid dealers in the State of Florida. To collect and disseminate information of value to members and to the general public. To appear for and on behalf of the members before legislative committees, government bureaus, and other bodies with regard to matters effecting [sic] the heading aid dealers of the State of Florida. To conduct these activities and achieve these objectives without pecuniary profit. Do everything and anything reasonably necessary, suitable, proper, convenient or incidental to the aforesaid purposes or which properly may be done by a corporation not for profit organized for such purposes, under the laws of the State of Florida, and to possess all proper powers, rights and privileges permitted such a corporation not for profit by such law. The Florida Hearing Aid Society in effectuating its purposes participates in legislative activities and interacts with the Respondent with regard to rule making and other regulatory matters. In addition, the Florida Hearing Aid Society has a member who serves on the Hearing Aid Advisory Council of the Respondent, which Council is created by Section 468.1235, Florida Statutes. The Florida Hearing Aid Society conducts educational programs for its members and the Florida Society is a member of the National Hearing Aid Society, its counter part at a national level. The Florida Hearing Aid Society is the only Florida association of general membership representing registrants, trainees and others affiliated with the matters of fitting and selling hearing aids. Jay Alan Bertoch is the current president of the Florida Hearing Aid Society. George C. Martinez and Irene Selis are members of the Board of Directors of that Society. Members of the Society, at all times pertinent, have hired trainees who have undergone or are undergoing apprenticeships in keeping with Rule 10D- 48.27, Florida Administrative Code. Bertoch, Barbara Stanley and Martinez are Society members who are involved in that training process. Those individuals have indicated a reluctance to hire trainees in the future, due to the requirements of Rule 10D-48.27(1) and (2), Florida Administrative Code, which requires immediate supervision of Stage I and II trainees. The aforementioned individuals have also been influenced in their opinion, based upon the October 16, 1981, memorandum from Ralph Gray, Administrative Official with the Respondent, which memorandum is at issue through this rules challenge. This memorandum has contributed to the reluctance on the part of the registrants to utilize trainees. The Florida Hearing Aid Society voted through its Board to bring the rules challenge. The October 16, 1981, memorandum was directed to all licensed registrants in Florida who fit and sell hearing aids. A copy of the full text of that memorandum may be found as Petitioner's Exhibit No. 2, admitted into evidence. The memorandum speaks in terms of an interpretation of Subsection 468.126(2)(a) and (b), Florida Statutes, Part II, and Rule 100-48.27(1) and (2), Florida Administrative Code, and was authored by Ralph Gray, the Program Administrator for the Hearing Aid Licensure Program. Gray's duties, among other matters, include the investigation and decision to prosecute those registrants and trainees who would violate the terms and conditions of the statutes and rules pertaining to the fitting and selling of hearing aids. This so-called interpretation was made on the basis of inquiries that had been made of Respondent concerning testing clients and selling of hearing aids to those clients by Stage I and II trainees, without being in the same physical location as the sponsor/registrant. This refers to the sponsor of the trainee. Barbara Stanley's testimony identified the fact that when she, as registrant, accompanied her Stage I or II trainee in activities outside the office, as opposed to letting the trainee operate alone outside the office, she would lose income opportunities. Stanley and Martinez, in discussing the specific question of hiring trainees in the future, established that they would be bothered by that idea in view of the fact of cost to them as registrants and the financial burden that is placed on trainees. Typically, the trainees are salaried during their apprenticeship or work on commission during that time. The actual training afforded to the Stage I and II participant is not pursuant to a uniform course established by Respondent. The instruction provided by the sponsor/registrant is a matter of individual choice by that sponsor; however, reading and home study courses in the hearing aid fitting and selling field are recommended, together with some courses which are prepared by hearing aid manufacturers. Registrants Bertoch, Stanley, Martinez and Selis have provided instruction to their trainees in keeping with Respondent's guidelines. Benjamin T. Wrubel and Howard Greisdorf, Stage II trainees employed by Irene Selis, testified in the course of the hearing and indicated that in their circumstances, there were no differences in their activities as Stage I and II trainees on the question of their employment and supervision by their sponsor. These two individuals work on a commission basis and indicated that their inability to operate independent of their sponsor in Stage I and II has created an economic imposition for them.
Findings Of Fact The petitioners herein are all professors employed by the respondent Florida State University (FSU) as faculty members in the School of Music. Pursuant to a "petition for an administrative determination" filed with the Division of Administrative Hearings, petitioners seek a declaration that the written documents appended to the petition are rules within the meaning of the Administrative Procedure Act (APA) and, because they were not promulgated in accordance with the APA, they constitute an invalid exercise of delegated legislative authority. The respondent contends that the petitioners herein are not substantially affected persons within the meaning of F.S.120.56(I) and thus they lack standing to challenge said documents. By a motion to dismiss, respondent further contends that the instant proceeding constitutes a collateral attack upon final agency action and therefore the Division of Administrative Hearings lacks jurisdiction to entertain a rule challenge petition. Finally, respondent urges that the documents in question do not fall within the definition of a rule and are, in fact, specifically exempted from said definition. It is claimed that said documents constitute either internal management memoranda or the preparation or modification of either agency budgets or contractual provisions reached as a result of collective bargaining. The five documents attached to the petition will be described in more detail below. Briefly, these documents are as follows: The "Florida State University procedures" for the award of merit salary and other increases; A portion of the School of Music bylaws; A faculty roster form listing each faculty member of the School of Music with a space provided for an evaluation; A form entitled faculty evaluation summary; and The student instructional rating system (SIRS) interpretation manual. Each of these documents (Exhibits 1 through 5) were utilized by the respondent to determine merit pay increases for each of the petitioners for the 1978-79 school year. Unless amended prior to the evaluation process for the 1979-80 school year, each document will be utilized again in determining merit increases for faculty members of the School of Music. Having been evaluated for merit salary increases under these documents in the past, with a more than reasonable likelihood of future use of the documents for future evaluations, petitioners have adequately demonstrated that they are substantially affected persons within the meaning of F.S.120.56. Not only has their present remuneration for their services been determined pursuant to these documents, their future annual salaries will be affected by the determination reached as a result of the original use of these documents. Unlike the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st, 1978), petitioners have illustrated that the impact of the challenged documents are continual, having both present and prospective impact. Faculty members of a university have a substantial interest in the emoluments of their employment. Written documents which substantially affect that interest, if otherwise falling within the APA's definition of rule, can be challenged if a proper petition is filed pursuant to Section 120.56. The respondent contends that the case of HRS v. Barr, 359 So.2d 503 (Fla. App. 1st 1978) bars the instant proceeding. That case held that Hearing Officers had no collateral review power over final agency action taken after regular proceedings under other provisions of the APA. The undersigned finds, and so concludes, that the Barr case, which dealt with a declaratory statement, has no applicability to the facts of the present case. The present petition is not a collateral attack upon an adjudication of petitioners' rights by the agency. The documents in question do not constitute final agency action and the petitioners herein are not challenging the actual determinations of their merit pay. The petition challenges the documents which govern the procedure by which the merit pay increases are made, and the Hearing Officer limited all testimony to that issue. Testimony regarding the results of the evaluation process which occurred in May of 1978 and the manner in which that particular evaluation was conducted was not permitted. The petition alleged that the documents in question constituted rules within the meaning and intent of the APA and that they were substantially affected by said rules. Thus, the petition properly alleged a cause of action under Section 120.56. Having found that the petitioners are substantially affected by the documents utilized by FSU to determine merit increases for faculty members, it now must be determined whether said documents constitute rules within the meaning and intent of the APA. The controlling statutory provision is F.S. 120.52(14), which reads in relevant part as follows: 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (a) internal management memoranda which do not affect either the private interest of a person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum; (c) the preparation or modification of: agency budgets. contractual provisions reached as a result of collective bargaining. The first document challenged herein is entitled "Florida State University Procedures" and it contains procedures and guidelines for merit increases, equity increases, and other increases. It divides merit increases into two levels, defines the levels and prescribes, in general form, the procedures to be utilized in evaluating all members of the faculty for merit raises. A "Note" at the end of this document describes the document as FSU "internal procedures for implementing the Statement Concerning Merit and Other Salary Increases." This "Statement" is contained in the collective bargaining agreement between the Florida Board of Regents, State University System of Florida and the United Faculty of Florida. The document in question was created by a committee appointed by President Sliger of FSU. The task of the committee was to devise procedures for the distribution of discretionary funds. The procedures apply generally and equally to each segment of the University and to each faculty member. Other than the "Statement" referred to above, which simply sets forth the criteria by which to evaluate faculty members for merit salary increases, the only other reference in the collective bargaining agreement to salaries is contained in Article 23. Section 23.1(b)(2) simply refers to "discretionary increases in recognition of merit." The document entitled "FSU Procedures" is an agency statement of general applicability that implements, interprets and prescribes law or policy. It sets forth the procedure to be utilized in the discretionary award of merit pay increases. Contrary to the assertions of respondent, this document does not fall within any of the relevant exceptions to the term "rule." Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University. Thus, it is not an "internal management memoranda" exception. While the Procedures do provide the method by which allocated and budgeted funds will be distributed, the document itself does not "budget" any of the funds. The testimony at the hearing was to the effect that these Procedures were created and posted prior to the University's budget submissions and that the budget division of FSU had no role in the creation of the document. Thus, this document cannot be considered as preparation or modification of an agency budget. Finally, the "FSU Procedures" do not fall within the exception for the preparation or modification of "contractual provisions reached as a result of collective bargaining." The document is not a "contractual provision." Although its contents refer to the collective bargaining agreement, the agreement itself only provides that the award of merit salary increases are to be discretionary with the University. Indeed, the testimony and documentary evidence adduced at the hearing illustrates that the Procedures were created and put into operation prior to the time that the collective bargaining agreement became effective. In and of itself, this agency statement purports to create certain rights and adversely affect other rights with regard to funds available for merit increases. See State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. App. 1st, 1977). This agency statement having general applicability that implements, prescribes and interprets the University's policy regarding award of discretionary merit increases is a rule within the meaning of the APA. The University having failed to properly promulgate said rule in accordance with F.S. 120.54, the document entitled "Florida State University Procedures" constitutes an invalid exercise of delegated legislative authority. The next document for consideration is a portion of the bylaws of the School of Music at FSU. This consists of a set of directives which define the organization of a peer evaluation committee and prescribe the criteria and procedures under which that committee will evaluate faculty members of the School of Music and make recommendations to the Dean regarding merit raises. The criteria to be considered are identical to the criteria already contained in either existing rules of the Board of Regents and FSU (F.A.C. Ch. 6C-5.05 and 6C2-4.33) or in the "statement" contained in the collective bargaining agreement. Thus, the criteria in the bylaws simply constitute a restatement of either existing rules or the contractual provisions of the collective bargaining agreement. The only relevant remaining portion of the bylaws is that portion which directs that the School of Music faculty advisory committee shall also sit as the peer evaluation committee for merit salary increases. This does not constitute an "agency statement of general applicability" within the definition of a rule. It is simply the statement of the School of Music, which is not an agency within the meaning of the APA. The FSU School of Music bylaws do not fall within the APA's definition of a rule. The third document is a form or a worksheet consisting of a School of Music faculty roster with five spaces provided for the peer evaluation committee to rank each faculty member. Each committee member is directed to review the personnel file for each faculty member and, consistent with the established procedures and criteria, complete the worksheet which is then tabulated with the results being communicated to the Dean in the form of a recommendation. A form may fall within the definition of a rule if it otherwise fits the definition and if it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule." F.S. 120.52(14). This form is not an agency statement of general applicability and it does not impose requirements or solicit information not already required by existing rule or statute. It is simply a data collection device utilized by the School of Music to arrive at an evaluation of its faculty members' effectiveness in the traditional areas of professional activity as required by existing rules and the "Statement" contained in the collective bargaining agreement. It is not an "agency statement" within the definition of a rule. The same rationale applies to the fourth and fifth documents under review herein. Both of these documents -- the "faculty evaluation summary" and the "SIRS interpretation manual" -- have been utilized by FSU for over five years to evaluate the overall performance and the teaching effectiveness of its faculty. They are not agency statements and the forms do not impose requirements or solicit information not already required by existing rule or statute. The areas of performance to be evaluated in the "faculty evaluation summary" are described in detail in existing Rules 6C-5.05(2) and 6C2-4.33, as well as in the collective bargaining agreement. The SIRS evaluation is specifically referred to in FSU Rule 6C2-4.33(1)(d) and is simply another tool to be utilized in the total evaluation process. These forms are not "rules" within the meaning and intent of the APA. The undersigned Hearing Officer has carefully considered the legal arguments raised by the parties, both at the hearing and in written memoranda submitted subsequent to the hearing. To the extent that the legal arguments of the parties were deemed meritorious, they have been addressed herein. One final matter deserves treatment. At the close of the hearing, petitioners sought to publish and introduce into evidence certain answers to interrogatories, and the University sought to publish others completed by Dean Wiley Housewright. Dean Housewright was present throughout the hearing and was twice called as a witness. His testimony included a discussion concerning the subject of each interrogatory sought to be published. The proper time to delineate inconsistencies between his testimony and the answers to interrogatories, if any, was during the examination of this witness. Therefore, the requests of both parties to publish these responses to interrogatories are denied.
