The Issue The issue for consideration in this case is whether Petitioner, Carol J. Cargill, was properly removed from her position as Director of the University's International Language Institute and the related stipend therefore properly terminated.
Findings Of Fact Dr. Cargill, a graduate of Brown, New York University, and Georgetown University, was recruited by the University in 1977. She was hired as a professor in linguistics on a nine month contract. In 1978 she began to develop the ILI, and thereafter took the title of Director, receiving therefor a 20 percent overload to her salary, separate and apart from her academic salary for a full time load. She was never officially appointed as "Director" of the ILI. Her duties with the ILI were separate and apart from her duties as a faculty member. Her appointment to the faculty at the University was as a 1.0 Full Time Effort, (FTE) professor in Linguistics in the Division of Modern Languages and Linguistics, for which she was tendered and signed a standard State University System contract for each year of her employment as a professor, and for which she received a salary pursuant to the United Faculty of Florida Collective Bargaining Agreement, (CBA). The "Directorship" of the ILI is not within the legislative classification of Director. Faculty and other appointments at the University are made either to a "position" which is a creation of the legislature, or to "Other Personnel Services", (OPS), which is, by its nature, temporary. On or about May 5, 1992, Dr. Roger Cole, Professor and Director of the Division of Modern Languages, requested that Dr. Cargill tender her resignation as Director of the ILI. Dr. Cargill refused to do so. Thereafter, on August 10, 1992, Dean Richmond, Dean of the College of Liberal Arts and Sciences, recommended to Provost Meisels that Dr. Cargill be replaced as Director of the ILI. In response to that recommendation, Provost Meisels appointed a three- person review panel to review the material accumulated regarding Dr. Cargill's directorship of the ILI and to conduct such interviews as it deemed necessary. Provost Meisels, in his charge to the panel, directed it to advise him as to whether, in its opinion, Dean Richmond's recommendation, based on information submitted by Dr. Cole, that Cargill be removed, "might be reached by a reasonable individual." On October 5, 1992, the review panel notified Provost Meisels that it had concluded the recommendation met the "reasonableness" standard articulated, and on October 27, 1992, Provost Meisels, in a two page letter to Dr. Cargill, "immediately" removed her as Director of the ILI, and stopped payment of the salary overload she was receiving for those services, effective November 1, 1992. In this letter, Provost Meisels advise Dr. Cargill no additional responsibilities would be assigned to her for the balance of the semester, and she was provided with a "leave with pay for one semester and one summer at 1.0 FTE anytime before the end of the calendar year 1994. Though no specifics were provided either in the letter or at hearing regarding the basis for the apparent dissatisfaction with Dr. Cargill's performance at ILI, the underlying tenor of the letter clearly indicates such existed. Dr. Meisels characterized his action as a reassignment pursuant to Board of Regents Rule 6C-5.130, and though the University's decision to reassign her was discretionary and authorized by that rule, she had the right to file a grievance regarding the matter pursuant to USF Rule 6C4-10.010. The University neither followed nor attempted to follow the procedures for removal for just cause set forth in Rule 6C4-10.009, F.A.C. Dr. Cargill timely filed a Notice of Grievance and Request for Hearing pursuant to Rule 6C4-10.010 and, thereafter, the Step 1 hearing was conducted on June 3, 1993, by Dean Richmond. In his determination dated July 20, 1993, Dean Richmond found, "... there is no substantive basis for grievance on the issue of improper process in the termination of Dr. Cargill as Director of the International Language Institute." Dr. Cargill appealed this decision to then Assistant Provost Wright. In his Step 2 decision, Dr. Wright found the termination or reassignment of Dr. Cargill concerned a substantial interest of the grievant, but she had not met the burden of proof as required under the grievance procedure. He concluded that the recommendation for Dr. Cargill's removal from her position at ILI was consistent with the Board of Regent's rule and that no violation of that rule had occurred, which constituted a denial of her grievance. Dr. Cargill thereafter timely filed her Petition for Relief which forms the basis for this hearing. Ordinarily, a faculty member's assigned duties include a combination of both teaching and research, and, in addition, some faculty members are assigned administrative duties as a component part of their FTE. Though varying slightly from year to year, Dr. Cargill's assigned duties as FTE professor primarily consisted of teaching two courses and administering the graduate program within the Division of Language and Linguistics as "Director of Graduate Studies" which, though encompassing one third of her FTE, she considered an "administrative assignment." For this directorship, she received a one course release time. Over and above all that were her activities with the ILI. Dr. Cargill's assignments as a faculty member were recorded on periodic individual assignment of duties forms and activities reports. Her FTE directorship of graduate studies was listed thereon as "advisement." None of the ILI duties was ever included on either form. Up to 1992, the ILI was funded through the auxiliary budget of the School of Continuing Education and Dr. Cargill's ILI performance was evaluated by the head of the College for Continuing Education. Her FTE teaching and graduate student advisement performance was evaluated by the Director of the Division of Modern Languages and Linguistics. When she was first employed at the University, Dr. Gargill was tendered a standard one year State University System, (SUS), contract for each year of her employment as a professor. This covered her FTE activities only over the nine month regular school year. At no time was she offered or given a SUS contract for her ILI activities. Those activities were compensated for by the periodic issuance of an overload authorization which was signed by Dr. Cargill, the chairperson of the Division, and the Dean for the nine month regular school year. Notwithstanding Dr. Cargill understood the authorization form to be a contract for her services with the ILI, the overload form does not serve as an employment agreement. It merely serves to encumber the funds to be used to pay for the overload upon a showing that the work called for has been accomplished. Dr. Cargill was also given an OPS appointment for her summer term ILI duties when she was assigned no other duties. Overloads are instructional duties in an extension or continuing education activity which are in excess of a full appointment. They are not administered by the University's personnel department but, in this case, by the School of Continuing Education. They have never been considered as a position through which a person may attain tenure or any other right of continuing employment. To the contrary, the CBA requires overloads be offered "equitably". No notice is required before an individual performing overload duties can be denied further such assignments. By the same token, an OPS appointment is also temporary. An OPS appointment was used to compensate Dr. Cargill during the summer term because an overload is allowed only when the faculty member is carrying a full load. Since she had no assigned duties during the summer term except those involving the ILI, an overload would not have been the proper vehicle for compensating her for her summer term duties with the ILI. It must be noted here that OPS appointments, like overloads, carry no right of continuing employment and may be terminated without advance notice. While Dr. Cargill was serving in her FTE position and leading the ILI as well, her overload paid her an amount equal to 20 percent of her faculty salary, and the OPS summer appointment paid her sums in addition to that. During 1991, she was paid approximately $41,000.00 out of the University's Expense and General Funds for her services as an FTE faculty member. During the same period, she was also paid approximately $23,000.00 out of the University's Extension Incidental Trust Fund for her ILI activities. In his October 27, 1992 letter advising Dr. Cargill that her duties with the ILI were being terminated, Dr. Meisels specifically referred to the provisions of Rule 6C-5.130, F.A.C.. She was not given any new duties as a result of or subsequent to her removal from her position with the ILI. Instead, she continued her FTE teaching load and her FTE position as Director of graduate studies within the Division of Modern Language and Linguistics, but was not given an OPS appointment for the 1993 summer term. Dr. Cargill agrees she could have been relieved of her duties with the ILI for cause or from her FTE position as Director of Graduate Studies without notice or cause. However, she contends, the position with the ILI was an administrative assignment from which she could not be removed except for cause or consistent with the provisions of the other pertinent rules. The University does not assert she was removed from her position with the ILI for cause. It is not disputed that Dr. Cargill's duties, title, and pay in her ILI position gave her added prestige both on and off the University campus. Her removal from that position meant she would no longer have the prestige or receive the pay and as a result, she experienced an immediate substantial pay reduction and claims she was humiliated in front of her students and the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Dr. Carol J. Cargill's Petition for Relief be denied. RECOMMENDED this 6th day of September, 1994, 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 6th day of September, 1994. APPENDIX TO RECOMMENDED ORDER 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 DR. CARGILL: Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Accepted and incorporated herein. & 19. Accepted except for use of term, "appointed" which has a special meaning in the law. Correct word should be, "assigned." 20. - 22. Accepted and incorporated herein. 23. Accepted. 24. - 26. Accepted and incorporated herein. 27. & 28. Accepted. 29. - 32. Accepted. 33. & 34. Accepted and incorporated herein. 35. - 36. Accepted and incorporated herein. FOR THE UNIVERSITY: & 2. Accepted and incorporated herein. 3. & 4. Accepted. - 7. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 14. Accepted. Accepted and incorporated herein. - 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. 23. & 24. Accepted. - 27. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Accepted. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, Florida 33602 Henry W. Lavandera, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty 100 S. Ashley Drive, Suite 1300 Tampa, Florida 33601-3333 Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250 4202 East Fowler Avenue Tampa, Florida 33620-6250
The Issue Whether the suspension of Petitioner was for good cause shown as indicated in the letter of suspension dated August 19, 1976.
Findings Of Fact Ralph L. Wilson was suspended for a three (3) day work period August 20, 1976 through August 24, 1976. The certified mail letter to Mr. Wilson stated, "This suspension is caused by your unauthorized absence for the period August 10 through August 13, 1976." Appellant Wilson is an Accountant at Florida A & M University working under the direct supervision of William Schnitt, Acting Budget Officer at Florida A & M University. Vinod K. Sharma Associate University Comptroller at Florida A & M University, is the supervisor of William Schmitt. James R. Barrett, Comptroller of Florida A & M University, is the supervisor of Vinod K. Sharma. Appellant Wilson requested a leave of absence from his position to attend a church conference to be held in Lake City, Florida, on August 10-13 1976. His immediate supervisor, Mr. Schmitt, orally refused the request but advised Mr. Wilson that the denial could be appealed to Mr. Vinod K. Sharma. Mr. Wilson appealed in writing the denial by Mr. Schmitt on August 4, 1976 to Mr. Sharma. Mr. Sharma, on August 4, 1976, sustained the denial of the request citing as the basis an August 1, 1976 memorandum to all fund accountants from J. R. Barrett, University Comptroller, asking all fund accountants not to request annual leave during the period from August 3, 1976 through September 7, 1976. The Appellant called in sick on August 9, 1976. He also called in sick on August 10, 1976. He did not call in to explain his absence on August 11, 12, and 13, 1976. Appellant Wilson presented a memo signed by W. H. Baker, M.D., as follows: "8-9-76 Mr. Ralph Wilson visited my office today because of illness." There was uncontroverted testimony that Appellant Wilson attended a church meeting on August 11, 12 and 13, 1976, in Lake City, Florida. Evidence was submitted that Appellant Wilson was an active member of the conference in Lake City who served, according to a portion of the program for the conference, as a member of the Board of Examiners at said conference. Appellant Wilson was transferred to the Comptroller's Office on July 10, 1976. His job description included the following statement by Mr. Barrett: "Your immediate supervisor will be Bill Schmitt, who at his discretion, may assign you additional duties." Appellant Wilson admitted that he was in Lake City, Florida on August 11, 12 and 13, 1976, and took an active part in a church conference in Lake City during that period. He admitted that he knowingly violated the personnel rules of being absent without proper authorization. The Appellant contends that he is discriminated against by his supervisors in that a statement from the doctor is required of other employees and that he is required to bring in certification on sickness anytime that he is sick for more than two (2) days. Appellant contends that his duties assigned are not nearly as much as the Respondent claims them to be, that he was given no credit for coming to work before 8 o'clock or while he stayed at work while his supervisors went on coffee break daily from around 8:15 to 9:00 A.M., that each time he was going to be more than fifteen (15) minutes late he did call in and report the same. Appellant further contends that the Respondent did not prove that he was not sick on the days claimed. He stated he was sick August 9-13, 1976. Appellant Wilson was notified by mail that he was suspended for three (3) days by the Agency Head, President B. L. Perry, Jr. Said suspension notice stated that the suspension was for being absent without authorization. He was without authorized leave.
Recommendation Inasmuch as the Appellant has been orally reprimanded and reprimanded by written notice, it is recommended that the three (3) day suspension without pay be sustained. DONE and ORDERED this 9th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Ralph L. Wilson Post Office Box 2392 Tallahassee, Florida 32304 Bishop Holifield, Esquire Legal Department Florida A & M University Tallahassee, Florida 32307 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent should be required to pay Petitioner’s claimed overpayment of salary as calculated in the amount of $2,603.86, for the pay periods between July 2, 2007, and July 26, 2007, and whether the effective date for modification in salary as assigned by Petitioner should be consistent with the date of Respondent’s amended contract.
Findings Of Fact Respondent is currently employed as a tenured associate professor in the FAMU College of Pharmacy and Pharmaceutical Sciences (COPPS). At all times material, he has been a tenured employee of FAMU. He currently resides in Tampa and is responsible for developing a professional experience program from Tampa to Orlando, Florida. Although at hearing Respondent orally requested reimbursement of his travel expenses to the hearing, at no time prior to hearing did he object to the scheduling of hearing in Tallahassee, Florida. His oral request is here treated as a motion, to be resolved in the following Conclusions of Law. Herein, FAMU contends that $2,603.86,1/ amounting to 1.9 pay periods (July 2, 2007-July 26, 2007), constitutes an overpayment of salary FAMU made to Respondent in the capacity of interim dean, together with concomitant federal tax considerations. FAMU now seeks reimbursement from Respondent. Respondent’s first employment contract appointing him to serve in an administrative capacity as interim dean and associate professor for COPPS shows a signature on a line provided for “President/Provost/Vice-President” on June 16, 2004, acceptance by Respondent on July 1, 2004, and appointment dates of August 8, 2004, through August 7, 2005. That contract provided for an approval by the president or the president's designee. Prior to that first interim appointment, Respondent was employed in COPPS as an associate dean and associate professor, and Dr. Henry Lewis III was employed as Dean of COPPS. In 2007, Respondent signed three contracts, only the first of which was for employment as interim dean. All 2007 employment contracts referenced throughout this Recommended Order specified that: This employment contract between Florida A&M University Board of Trustees and the employee is subject to the constitution and laws of the State of Florida, the rules and guidelines of the Board of Governors, the regulations of the University Board of Trustees (BOT), and in accordance with Article 6, Nondiscrimination, Article 1.3, Employment Contract, and Article 20, Grievance Procedure and Arbitration of the United Faculty of Florida (UFF) contract with Florida A&M University. Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President, [sic] President’s designee, as approving authority and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority as specified herein. The signature of the employee affixed hereto shall not be deemed a waiver of the right to process a grievance with respect hereto. * * * ... This offer of employment will be withdrawn and not processed for payroll if this employment contract is not signed and returned to the appropriate authority within twenty (20) days from the date of offer. (Emphasis supplied.) Faculty employment contracts are prepared by the Office of the Provost and Vice President of Academic Affairs and forwarded to the FAMU Payroll Office for appropriate processing and payment. All contracts in evidence have been treated by all parties as valid, regardless of whether they bear FAMU’s president’s signature or the signature of anyone on his behalf signed on the president's "line." Presumably, this is because the signator for the vice-president/provost was the president's "designee" with final approval authority on behalf of the president. At no time has Respondent ever filed a grievance with regard to any 2007, employment contract. Respondent’s first 2007, employment contract reflected an administrative appointment as interim dean and associate professor. It was offered on May 31, 2007; was executed by Respondent on June 15, 2007; and was signed by someone on FAMU's President's signature line on June 22, 2007. Thereby, Respondent was employed at an annual salary rate of $158,417.00, and a biweekly amount of $6,069.61. The period of appointment specified was from July 1, 2007, through June 30, 2008. At all times material, FAMU Board of Trustees Policy No. 2005-15 has provided, in pertinent part: Application This policy applies to employees holding both a tenured faculty position and serving as a senior administrative and academic officer of the University, but who are leaving their senior administrative and academic office to return to the tenured faculty or an administrative position. Examples of such positions are the vice presidents, assistant or associate vice presidents, deans and directors. Lack of Property Interest in Office Senior Academic and Administrative Officers are employees “at will”; thus, the President may not purport to confer on any officer a period of employment of fixed duration or otherwise confer any property interest in such employment. However, such an officer may be appointed to a period of employment as provided in Rule 6C3-10.105 Florida Administrative Code, so long as the instrument accomplishing such an appointment status states clearly that the incumbent officer is subject to removal at any time, during that period, at the option of the President. [sic] Joint Appointments Tenure status as a member of the faculty, held concurrently by any Senior Academic and Administrative Officer of the University is separate and distinct from the administrative office, and such tenure status is governed by the provisions of Rule 6C-10.211, Florida Administrative Code. Those tenure rules and regulations have no bearing upon and do not govern the administrative appointment covered by these regulations, and the Senior Academic and Administrative Officer does not have tenure in his or her administrative positions. Return to a Faculty Position A Senior Academic and Administrative Officer who holds a concurrent tenured faculty appointment may return to that appointment with all the rights and responsibilities of faculty in his or her original department . . . The salary of the administrator shall be adjusted . . . to a . . . faculty salary. (Emphasis supplied.) None of Respondent’s 2007, contracts contain any language about "subject to removal at any time at the option of the President," but both parties herein have signed new contracts on that basis. At all times material, FAMU Board of Trustees Policy Number 2005-19, has provided, in pertinent part: 4. Salary Overpayments The University will seek reimbursement for salary overpayments and as stated in federal and state laws and policies. [2/] In a letter dated June 28, 2007, FAMU President-Elect James H. Ammons offered Dr. Henry Lewis III the position of Dean of COPPS. Dr. Lewis accepted the position as dean in a letter dated July 2, 2007. Also on July 2, 2007, a general faculty meeting was held. At that time, President Ammons introduced his leadership team and announced that Dr. Lewis had been reinstated as Dean of COPPS. Respondent was present when this announcement was made. A contract as Dean of COPPS was offered by the Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis executed the contract on July 3, 2007. The copy in evidence does not show any signature by the President or on his signature line. This contract reflects Dr. Lewis’s retroactive appointment as Dean of COPPS for the period July 1, 2007, through June 30, 2008, the same period as was set forth in Respondent’s then-existing contract as interim dean. (See Finding of Fact 9.) In a letter dated July 9, 2007, and received by Respondent on July 12, 2007, President Ammons notified Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of Respondent’s “change-in-assignment and removal of administrative duties as interim dean of” COPPS, “effective to June 30, 2007.” Respondent was further informed thereby that his duties and responsibilities as an associate professor would be provided to him by Dean Lewis. The letter also states, in pertinent part: In addition, your annual salary will be adjusted in accordance with the rules and regulations of the FAMU Board of Trustees. A new employment contract reflecting this employment action will be subsequently provided to you. (Emphasis supplied). FAMU Regulation 10.102, provides, in pertinent part: * * * (9) An employee assigned to an acting appointment (temporary change in assignment), in instances in which responsibilities have changed, may be provided a pay increase. Upon the employee’s return to his or her original responsibilities, the pay may be adjusted to the employee’s responsibilities. (Emphasis supplied.) * * * (11) When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy No. 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. (Title underlined in original; other emphasis supplied.) FAMU Regulation 10.105, provides, in pertinent part: (3) Appointments (e) No appointment shall create any right, interest, or expectancy of continued employment. . . . FAMU Regulation 10.209, provides, in pertinent part: Change-in-Assignment of Faculty and administrative and Professional Employees The President or President’s designee may for the best interests of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Employees whose assignments are being made in conjunction with a nonreappointment [sic] shall be reassigned pursuant to Regulation 10.207.[3/] This regulation shall only apply to a change in assignment when nonreappointment [sic] is not intended by the University. Work assignments are grievable pursuant to Regulation 10.206. Dean Lewis testified credibly that, following some conversations between himself and Pharmacy Director Angela Hill, Respondent’s class and teaching assignments were made on his behalf by Director Hill. Dean Lewis expected Respondent to immediately begin to prepare to teach four sections of medical terminology for the 2007, fall semester, as referenced on an Assignment of Responsibility Form. The date of the first of these classes was August 27, 2007, and there is no evidence that Respondent did not start teaching that class on that date. However, Respondent did not acknowledge the Assignment of Responsibility Form by signing it until August 29, 2007. Director Hill did not sign it until August 30, 2007, and Dean Lewis signed it on September 7, 2007. Respondent was not assigned any administrative duties or responsibilities as interim dean after July 2, 2007, inclusive of the period in dispute, July 2, 2007, through July 26, 2007. Although he testified that between July 2, 2007, and August 27, 2007, Respondent did some work in the Dean’s office, closing out unspecified administrative matters left in his tray, the greater weight of the evidence reflects that Respondent did not perform any identifiable administrative duties or responsibilities as interim dean after July 2, 2007. Moreover, Respondent requested, and Dean Lewis granted him 88 hours of annual leave for the dates of July 9, and July 16-27, 2007. A new faculty employment contract administratively appointing Respondent as associate professor was offered/signed by the provost/vice-president, on August 10, 2007, and signed by Respondent on either August 10, or August 22, 2007 (the date has been scribbled over), for the period from July 1, 2007, through June 30, 2008. It bears no signature on President Ammons' signature line. This contract reflects an annual associate professor salary rate of $106,442.00, and biweekly amount of $4,078.23. Based upon that first 2007, associate professor contract (see Finding of Fact 25), Respondent’s biweekly salary was supposed to be modified to $4,078.24, beginning with the August 17, 2007, pay-date. However, for the pay-dates between July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent a biweekly amount of $6,069.61, as if he were still interim dean. (See Finding of Fact 9.) Due to a salary amount error made on the first 2007 associate professor contract (see Finding of Fact 25), a revised contract was generated by Academic Affairs. It is clearly labeled “revised” and shows an offering date of September 20, 2007, signed by the provost/vice-president; was signed by Respondent on September 21, 2007; and bears no signature on the president's line. This second, revised 2007, associate professor contract, yet again reflects the appointment dates of July 1, 2007, to June 30, 2008, as did the 2007, interim dean contract (see Finding of Fact 9), and the same appointment dates as the first 2007, associate professor contract (see Finding of Fact 25), but it bears a corrected annual salary rate for associate professor of $122,648.00, and biweekly amount of $4,699.15. Pursuant to this second/revised 2007, associate professor contract, FAMU’s payroll office took steps to correct Petitioner’s salary information, and Respondent began receiving the corrected weekly amount of $4,699.15, beginning with his October 12, 2007, pay-date. Respondent did not then, and does not now, contest the annual salary rate or biweekly amount reflected on this revised contract. In a letter dated October 4, 2007, Jacqueline Lester, FAMU’s associate director of payroll, informed Respondent that, due to an administrative error, FAMU had overpaid him (at the rate of interim dean) by a net amount of $1,748.07. Her letter also informed Respondent that, “Pursuant to Volume V, Section VI of The Bureau of State Payrolls Manual, Office of the State Comptroller,” FAMU’s payroll department was required to recover the overpayment from him. She requested that Respondent refund the overpayment amount, and provided him options of how to accomplish repayment. If he selected neither option, there would be involuntary reductions from his future salary checks. Respondent was obliquely advised of the federal tax consequences of a delay in repayment by a blank form attached to Ms. Lester’s October 4, 2007, letter, which blank form Respondent was requested to fill out and sign in acknowledgment that: I understand that if the full payment is not made by 12-31-2007, the payment amount will be recalculated to include withholding taxes that were deducted from the overpayment. This recalculation will result in an increase in the amount due because the withholding taxes paid cannot be recovered by the state. Petitioner never signed the foregoing form. Ms. Lester’s October 4, 2007, letter also informed Respondent that he had a right to request an administrative hearing, pursuant to Section 120.57, Florida Statutes. By a letter dated October 15, 2007, Respondent requested an administrative hearing. On October 12, 2007, before Respondent requested his hearing, FAMU paid Respondent additional gross pay in the amount of $2,483.68. FAMU provided this additional payment to pay Respondent the wages construed as underpayment beginning with the August 17, 2007, pay-date, due to the annual salary error on his first 2007 associate professor contract. In other words, the October 12, 2007, payment brought Respondent’s biweekly salary up to the appropriate amount of $4,699.16, for an associate professor (see Finding of Fact 27) and reimbursed him for the lesser and incorrect salary amount listed in the first 2007, associate professor contract(see Finding of Fact 25), which incorrect amount had been paid out between the August 17, 2007, and October 12, 2007, pay-dates, apparently covering the period of July 27, 2007, to September 20, 2007. Respondent accepted this money from FAMU. Respondent did not immediately get a Section 120.57(1), hearing upon his October 15, 2007, request. Instead, he got a meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was Ms. Lester’s subordinate who had in-put Respondent’s salary information. Respondent did not then, and does not now, disagree with FAMU’s salary calculations. He only disagreed/disagrees with "the period that the [revised] contract covered." During their meeting, Ms. Lester told Respondent that he needed to talk to someone in FAMU’s Academic Affairs Department about his primary dispute over the beginning date of his faculty employment contract and that she would take no final action to recoup any money from him until his contractual concerns were resolved. She further told him that his questions about his contract commencement date had to be resolved in order for her to re- calculate, and orally advised him of the tax consequences if the dispute were not resolved by December 31, 2007. Although Ms. Lester testified that she considered this meeting to constitute the administrative hearing Respondent had requested,4/ it is clear that both Ms. Lester and Respondent assumed Respondent would have to get some additional action from the provost’s and university attorney’s office(s) before any FAMU decision about the money became final. On November 8, 2007, Respondent e-mailed the provost. Respondent received no response by November 16, 2007, so on November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what else he could do to get a hearing. She e-mailed him back to the effect that contractual issues should be referred to FAMU’s Academic Affairs and Human Resources Departments, and gave him a hierarchy and/or chronology of persons to contact. On November 19, 2007, she warned him that the matter must be resolved before December 31, 2007. Respondent copied appropriate persons with the foregoing series of e-mails, without specifically requesting an administrative hearing. No one contacted Respondent about this again in 2007. Ms. Lester continued to hold the recoupment in abeyance. FAMU took no final agency action throughout 2007. After an exchange of letters in March 2008, Ms. Lester once again requested that Respondent repay salary overpayments for the period of July 2, 2007, through July 26, 2007, in the amount of $2,603.86. Apparently, this corrected amount included withheld amounts of 2007, federal income tax, which FAMU remitted to the Internal Revenue Service on Respondent’s behalf during 2007, and which amounts Respondent had not reimbursed to FAMU before the end of that year. FAMU ultimately recognized a March 25, 2008, letter from Respondent as a request for formal hearing, and on or about August 20, 2008, the case was referred to DOAH, resulting in this proceeding. Respondent has not refunded any money to FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $2,603.86, to Florida Agricultural and Mechanical University. DONE AND ENTERED this 26th day of January, 2009, in Tallahassee, Leon County, Florida. S 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 26th day of January, 2009.
The Issue Whether disciplinary action should be taken against Respondent's educators certificate.
Findings Of Fact In the 2000-2001 school year, Respondent, Elizabeth Weisman, held a Florida Teaching Certificate No. 475382. The certificate covered the areas of elementary education and mathematics and was valid through June 30, 2005. When the events herein occurred, Respondent was employed as a dropout prevention teacher at Second Chance School in Tallahassee, Florida. The school is part of the Leon County School District. There is no evidence that Respondent has been disciplined by Petitioner on any prior occasion since she began teaching in Leon County in October 1980. Second Chance School is a school for children with disciplinary problems and who have a history of being extremely disruptive and cannot be handled in a regular school setting. Ms. Weisman was in a difficult position when she started teaching at Second Chance School. She was assigned to teach outside her field and was replacing a teacher who was not as strict a disciplinarian or as demanding of performance as Ms. Weisman. In general, her students did not react well to the increase in discipline and expectations of performance and likely caused increased referrals to the principal's office. Both Ms. Weisman and the students had to adjust to each other On April 6, 2001, J.M. entered Respondent's classroom. Respondent asked him to leave her classroom. He was not supposed to be in the classroom because he had been referred to the principal's office the day before for discipline. J.M. attempted to comply with Respondent's request, but a number of students entering the room blocked him from leaving. Respondent made a shooing motion with her hands to J.M. and raised her foot to indicate for J.M. to leave the room. The gestures were done in a playful manner and were intended as such. While Ms. Weisman's foot was raised, she accidentally brushed or pushed J.M.'s buttocks with her foot. J.M. could feel the push. However, it did not cause him to lose his balance or cause any harm to him whatsoever. The evidence did not demonstrate that J.M. was unduly embarrassed or otherwise affected academically by the incident. Indeed, the incident gave J.M. a good story to tell to others at school. The evidence did not demonstrate that the push was inappropriate or violated any state rules or statutes governing teachers. There was no evidence that Ms. Weisman was less effective as a teacher due to this incident. W.F. testified that on two occasions he witnessed Respondent state to the class that they were "acting like jackasses." J.F.'s testimony was vague and inconsistent. Specifically, W.F. testified that on the first occasion, Respondent stated to the class that they were "acting like jackasses" after class members refused to return to their seats during an altercation between two students occurring outside the classroom. The classroom students were generally cheering the fight on. With respect to the second instance, W.F. testified that Respondent made the statement after W.F. and several of his classmates tricked Respondent into placing her hand on a pencil sharpener covered with glue. W.F. conceded the description was an accurate description of the behavior of the students at the time. At no time did Respondent call an individual student an improper name. Although W.F. testified he was embarrassed by Ms. Weisman, W.F.'s testimony is not persuasive on this point. Nor is it realistic to conclude any significant embarrassment given the bold nature of W.F.'s behavior which preceded these comments. W.F. also testified on direct examination that he witnessed Respondent call the class "a bunch of rat bastards." Again W.F.'s testimony was vague and inconsistent. During cross-examination, however, W.F. testified that the remark was made to a specific female student during a verbal altercation between the student and Respondent. However, Respondent denies ever using or knowing the term "rat bastard." Given Respondent's demeanor, the inconsistency, and the unreliability of the other evidence, Respondent's testimony is the more credible. There was no credible evidence that any student was ever affected in any way by these incidences. No evidence of any change in grades or reduced test scores was introduced at the hearing. An increase in disciplinary referrals was noted by the principal, but that increase was not shown to be tied to these incidences. The increase, if any, was more likely to be due to the fact that she was a new teacher, teaching out of field, who was more strict with her students and demanded more from them. Moreover, statistics supporting this perceived increase in disciplinary referrals was not offered at the hearing. Indeed, later testing showed Ms. Weisman's students improved their test scores. However, the testing was for a different year and class. It was not clear that the same students were being tested. The improvement does show that Ms. Weisman is an effective teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23d day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 23d day of December, 2002. COPIES FURNISHED: Matthew K. Foster, Esquire Edward T. Bauer, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 John O. Williams, Esquire Williams & Holz, P.A. 211 East Virginia Street The Cambridge Centre Tallahassee, Florida 32301 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400
The Issue The issues presented for decision in the above-styled matter are as follows: Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? If so, was petitioner wrongfully denied tenure? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? 4 Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found: Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service. Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University. The above procedure was followed in Dr. Rosner's case and the following transpired: The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period." The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3). On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating: "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided." Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful. Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.
Findings Of Fact During the 1988-1989 school year, Respondent was a student in the eighth grade at Southwood Middle School a/k/a Southwood Junior High School. Respondent was a student in the Industrial Arts class of Richard C. Altman during the 1987-1988 school year. While in that class Respondent repeatedly engaged in conduct which defied the authority of Mr. Altman, interfered with other students learning, and compromised the safety of the other students in the class. On several occasions he turned on dangerous machinery without authorization, without wearing goggles as required, and in defiance of Mr. Altman's instructions. Frequently he engaged in conduct that would call attention to himself and distract other students from their work. Some of Respondent's conduct included throwing objects in class, thereby posing a danger to other students. On many occasions Mr. Altman discussed Respondent's behavior with him; however, Respondent would continue demonstrating a "nasty" temper, defiance, and lack of respect. In addition, Respondent was often late to class and simply refused to participate in productive class work. Consequently, he was unable to derive any benefit from the learning experience available to him in Mr. Altman's class. Because of his frequent disruptions, he also precluded other students from learning. Mrs. Isabelle Norton had Respondent as a student in her history class during the 1988/1989 school year. In that class he did not turn in any of his homework assignments, never brought material to class, and was never prepared when he came to class which was infrequent. He did very little class work and usually engaged in talking and distracting the class from the normal class work. When his talking became a problem, Mrs. Norton moved Respondent to the back of the class where he then would place his head on a table and sleep. In one instance when Mrs. Norton confronted Respondent about his disruptive behavior, he indicated that he was going to "punch her." As a result of Respondent's defiance, poor performance, and disruptive conduct, he received an "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Ultimately, Respondent was removed from Mrs. Norton's class with the result that the educational process in her class improved. It is the practice at Southwood Junior High School for teachers and school administrators to submit reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms and are generally reserved for serious behavior problems. Mr. Altman and Mrs. Norton each issued Student Case Management Referral Forms on Respondent regarding his disruptive behavior in the classroom, tardiness, excessive talking, safety violations and teacher defiance. Respondent also received Student Case Management Referral Forms from other teachers relating similar disruptive conduct. In one of these incidents Respondent and another student were throwing rocks at a school bus. As a result of this activity, a female student passenger was struck on the head, causing a laceration and requiring her to receive surgical stitches. Respondent faced expulsion from school for that conduct. In an attempt to focus Respondent's attention on his need to improve his behavior, Kenneth S. Cooper, the assistant principal, together with other teachers and counselors, tried numerous techniques to help Respondent. One technique tried with Respondent was to get him to enroll in a crime prevention program at the Optimist School. Notwithstanding all these efforts, including many student and parent conferences, warnings and suspensions, a positive change in Respondent's behavior was not achieved. At Southwood Junior High School, like other schools within the regular school program, the average number of students in a classroom is about thirty- five. Such schools are not geared to address peculiar student needs nor provide individual students with continuous special attention. On the other hand, opportunity schools have a ratio of teachers to students of about 9 to 1. At opportunity schools, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The opinion of the teachers and administrators who dealt with and had conferences regarding Respondent is that the more structured environment of an opportunity school would be better for him and that permitting Respondent to remain in a regular school program would be of no benefit to him inasmuch as he is not making any progress. Due to Respondent's poor grades and unacceptable conduct, a child study team conference between teachers and an administrator was held to discuss Respondent's lack of progress. At that conference it was decided to administratively assign Respondent to an opportunity school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Erik Wilson to the Youth Opportunity School-South until such time as his performance reveals that he can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jamie C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Willie Mae Wilson 17520 Homestead Avenue Perrine, FL 33157
The Issue Whether or not the Petitioner, Joseph E. Sedlak, is entitled to the restoration of any rights and privileges previously enjoyed, which have been removed as the result of the Respondent, University of North Florida's, notice of non-renewal of the Petitioner's contract beyond June 15, 1977, and whether or not the Petitioner is entitled to renewal of his contract with the Respondent beyond June 15, 1977.
Findings Of Fact This cause came on for consideration based upon the com-plaint filed by the Petitioner, Joseph E. Sedlak, dated July 9, 1976, as amended March 29, 1977. The answer to the amended complaint was filed by the Respondent, University of North Florida, April 15, 1977. The Complainant/Petitioner is a duly appointed employee and faculty member of the University of North Florida, who initial employment commenced on December 16, 1974. On June 2, 1976, Dr. Robert M. Siudzinskl, Chairman of the Department of Special Education, College of Education, University of North Florida, conducted an annual evaluation of Use Petitioner, Dr. Joseph E. Sedlak, a member of the faculty of the Department of Special Education. During the course of the annual evaluation process, Dr. Siudzinski told Dr. Sedlak that he had made the decision to recommend that Dr. Sedlak's contract as an employee with the University of North Florida not be renewed after June of 1977. This statement was made to Dr. Sedlak following a discussion between Dr. Siudzinski and Dr. Sedlak concerning the annual performance evaluation of Dr. Sedlak, as accurately summarized in Petitioner's Exhibit #54, admitted into evidence. Dr. Siudzinski then read from the Academic Personnel Policies and Procedures of the University of North Florida, Chapter XI-25 and 26, which states: "... the recommendation not to renew a non- tenured faculty member will originate with the Chairman of the department and be concurred in by the Dean of the College and Vice President and Dean of Faculties." After this Dr. Sedlak was informed by Dr. Siudzinski that Dr. Siudzinski had conferred with the President, Vice President and Dean of Faculties, and the Dean of the College of Education at the University of North Florida and they had concurred with his decision and had authorized Siudzinski to recommend non-renewal. (The excerpts of the University of North Florida Academic Personnel Policies and Procedures, Chapter XI are found as Petitioner's Exhibit #60, admitted into evidence.) It is unclear whether Dr. Siudzinski did in fact confer with the President and gain his concurrence with the decision and authority to recommend non-renewal; however, there were some conferences between Siudzinski and Vice President and Dean of Faculties and the Dean of the College of Education. These individuals concurred with the decision and authorized Siudzinski to recommend the non-renewal of Dr. Sedlak's contract of employment with the University of North Florida. At that time the Vice President and Dean of Faculties was Dr. Roy L. Lassitor and the Dean of the College of Education was Dr. Andrew Robinson. Dr. Siudzinski, in the course of the conference with Dr. Sedlak on June 2, 1976 stated his reasons for recommending non-renewal. Those reasons were: Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in amanner that benefited the Department. Unprofessional behavior during the assis tance quarter. Failure to contribute to the Department functioning commensurate with his rank (Reference was made to Dr. Sedlak's work on the 'Discrepancy Model.')" Finally, Dr. Siudzinski read from the University of North Florida Academic Personnel Policies and procedures, Chapter XI-26 and 27 which states: "prior to the transmission of the notice of non- reappointment, the University Officer initiating such action shall confer informally with the faculty member and explain the reasons for non-reappointment. The faculty member may request a written statement of reasons for non- reappointment within ten days after receiving the written notice. The request shall be in writing and the reasons shall be provided within ten days after the submission of the request. The notice of non-reappointment shall state in it the expiration date of the current contract and the effective date of termination and it shall indicate that the faculty member may appeal to the Committee on Rights and Responsibilities if he feels that the action is based on constitutionally impermissible grounds or to the President for review of the non-renewal decision when constitutional issues are not involved." Between June 2, 1976 and June 10, 1976, Dr. Roy Lassiter met with Dr. Sedlak and discussed, among other things, Dr. Sedlak's qualifications to remain on the faculty at the University of North Florida. Somewhere in this time period there was a discussion between Dr. Andrew Robinson and Dr. Sedlak, in which Dr. Robinson indicated that he concurred with the reasons which Dr. Siudzinski had given for the recommended non-renewal of Dr. Sedlak's contract, based upon Siudzinski's documentation and Siudzinski's reasons. On June 10, 1976, Dr. Thomas G. Carpenter, President of the University of North Florida, wrote to Dr. Sedlak recounting the conference of June 2, 1976, between Dr. Siudzinski and Dr. Sedlak, that informally notified Dr. Sedlak of the fact that his contract would not be renewed after June 15, 1976. The letter of Dr. Carpenter also indicated that formal notification of the action of non- renewal was being mailed June 10, 1976. Dr. Carpenter's letter further indicated that a new contract would be given to Dr. Sedlak effective June 16, 1976, for a contract year of 1976-77. (This letter had been prepared for Dr. Carpenter's signature by Dr. Lassiter, who is the delegated authority in matters of non-renewal of a non-tenured faculty member, in accordance with University of North Florida Academic Personnel Policies and Procedures, Chapter XI-25.) As Dr. Carpenter promised, formal notification of non-renewal of Dr. Sedlak's contract of employment was mailed from Dr. Robert M. Siudzinski, Chairman of the Department of Special Education, June 10, 1976. A copy of this letter of non-renewal is Petitioner's Exhibit #51, admitted into evidence. This letter served as official notification from the President of the University of North Florida, through his designee, Dr. Robert Siudzinski that Dr. Sedlak would not be appointed to the faculty of the Department of Special Education after June of 1977. The Siudzinski letter established that the current contract for the 1976-77 academic year would officially terminate on June 15, 1977. The letter stated that Dr. Sedlak could request a statement of reasons for the non- renewal within ten days of the date of receipt of the letter. The letter also attached the rules of the Board of Regents regarding the filing of grievances regarding non-renewal of contract. The letter went on to state that any grievance which Dr. Sedlak wished to file must be filed with the University President within 20 days after receipt of the letter, in accordance with quoted provisions. These provisions are drawn from the Chapter 6C-5.08(4)(c)5., Florida Administrative Code, which states: "any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges (1) that the recommendation is based on constitutional impermissible reasons or (2) that it violates his property rights or (3) that it is not in compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations made within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President, a complaint conforming to the requirements of paragraph (a) of Subsection (3) of this rule." Dr. Sedlak wrote a letter of June 14, 1976, to Dr. Siudzinski requesting a statement of reasons for non-renewal. This letter was responded to on June 22, 1976, in a letter by Dr. Siudzinski which stated four reasons for non-renewal of the contract. Those reasons being: "1. Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in a manner that benefited the Department. Unprofessional behavior. Failure to contribute to the Department programs commensurate with rank and expectations at the time of initial appointment." Subsequent to the receipt of a statement of reasons, Dr. Sedlak filed his original letter of complaint of July 9, 1976. In accordance with Chapter 6C-5.08(4)(c)6., Florida Admin-istrative Code, Dr. Carpenter requested of Dr. Minor H. Chamblin, Acting Chairperson of the Faculty Grievance Committee of the University of North Florida, that an investigation be made of the complaint filed by Professor Sedlak in his July 9, 1976 letter. A copy of the report of that investigation may be found as Petitioner's Exhibit #59, admitted into evidence. The investigation did not lead to the resolution of the complaint of Dr. Sedlak, as indicated by the ongoing proceedings. The underlying facts involved in the dispute over the non-renewal of Dr. Sedlak's contract, began with the initial interview for employment which was conducted by Dr. Siudzinski. It was Dr. Siudzinski's contention in his testimony given in the course of the hearing, that Dr. Sedlak was told in the employment interview, that the University of North Florida program in Special Education was designed to have students obtain competencies in their field, meaning that the program at the University of North Florida was a competency based program. Moreover, Dr. Siudzinski contended that he told Dr. Sedlak that behavior modification was a strong part of the University of North Florida program and that he felt that Dr. Sedlak was weak in the behavior modification area and needed to improve. Dr. Siudzinski testified that he told Dr. Sedlak these things, notwithstanding the fact that Dr. Sedlak was hired to teach coruses other than behavior modification courses. Dr. Siudzinski indicated in his testimony that Dr. Sedlak was encouraged to sit in on Dr. Siudzinski's behavior modification course as an aid to Sedlak's achieving competency in the area. In opposition to this statement, Dr. Sedlak's testimony in the hearing indicated that he assumed his duties as a teacher at the University of North Florida, following initial interviews, but these interviews did not include a discussion of the necessity that he, Dr. Sedlak, have a competency in behavior modification. He said, as indicated by his vita filed with the University of North Florida at the time of his employment, Dr. Sedlak had never taken courses in behavior modification, and according to Dr. Sedlak those courses were not required as a prerequisite to his employment at the University of North Florida. Dr. Sedlak stated that at the initial interview there was no discussion of the philosophy of the Department of special Education at the University of North Florida, nor did Dr. Siudzinski tell him that he was expected to get a competency in behavior modification. Finally, in the discussion of the question of the necessity for competency in behavior modification at the employment stage, several other members of the faculty of the Department of Special Education, University of North Florida, offered testimony. One of those witnesses was Clement Van Nagel who testified that he had been hired to teach behavior modification and the policy that behavior modification competency was necessary had been discussed at faculty meetings which Dr'. Sedlak attended. Another faculty member in the Department of Special Education, Thomas Serwatka, testified in the hearing and stated although he was not told that he would be required to teach behavior modification, he was told by Dr. Siudzinski that. The Department of Special Education was competency based and that it was behavioral in its orientation and Siudziriski wanted to know if Serwatka had a background in behavior modification. Another faculty member in the Department of Special Education who testified was Mary D' Zamko. Mrs. D' Zamko testified that when she was hired she was expected to have a competency in behavior modification and that to her knowledge other faculty members were held to the same standard of competency. She also indicated that this expectation was made clear in the staff meetings in which Dr. Sedlak was in attendance. Finally, Robert Gonzales, a member of the faculty of the Department of Special Education, testified that when he was hired that there was an expectation that he have a competency in behavior modification. From the testimony offered in the course of the hearing it is established that Dr. Siudzinski apprised Dr. Sedlak of the expectation that Dr. Sedlak have a competency in behavior modification to be a member of the faculty at the University of North Florida and it is further established that this requirement was enunciated at intervals during the course of faculty meetings at the University of North Florida which Dr. Sedlak attended. Petitioner's Exhibit #9, is a composite exhibit which was admitted during the course of the hearing. This exhibit contains a letter of December 9, 1974, from Dr. Siudzinski setting out the period of appointment of Dr. Sedlak as Associate Professor of Education effective December 16, 1974, for a period to run through June 30, 1975. This letter sets out the major duties which Professor Sedlak was expected to perform. Professor Sedlak accepted the contract and appropriate administrative officials approved the hiring. From the time of the initial employment up to and including the date of the annual evaluation, which was held on June 3, 1975, nothing of any significance occurred. The annual evaluation of Dr. Sedlak's performance was conducted by Dr. Siudzinski on June 3, 1975. Prior to that date Dr. Sedlak was recommended for appointment for the summer quarter of 1975 effective June 23, 1975, as shown by Petitioner's Exhibit #14, admitted into evidence. Dr. Sedlak was approved for that quarter. In the evaluation session of June 3, 1975, mention was made of a problem which Dr. Siudzinski felt that Dr. Sedlak had in understanding, a so called "Discrepancy Evaluation Model." Dr. Siudzinski felt that from his observation of Dr. Sedlak's performance in instructing on this model, that Dr. Sedlak did not have a satisfactory understanding of it. Petitioner's Exhibit #15, admitted into evidence is a memorandum of June 5, 1975 dealing with the problem of Sedlak's understanding and his contribution to the underlying project. The fo1low up of the June 3, 1975 evaluation conference is found in a memorandum of June 5, 1975, which is Petitioner's Exhibit #15, admitted into evidence. In addition a memorandum was filed to the folder of Dr. Sedlak, dated June 27, 1975, from Dr. Siudzinski. A copy of this memorandum is Petitioner's Exhibit #17, admitted into evidence and the exhibit shows that Dr. Sedlak was recommended for reappointment for the year 1975- 1976. A copy of the offer of reappointment is found in Petitioner's Exhibit #19, admitted into evidence. This is an August 1, 1975, letter from Dr. Siudzinski indicating that the period of employment is from September 15, 1975 through June 15, 1976. Dr. Sedlak accepted this employment. Other action taken on the Petitioner's employment in 1975 would include a recommendation from Dr. Roy L. Lassiter, Jr., Vice President and Dean of Faculties, that Dr. Sedlak be given credit toward tenure at the University of North Florida for service at other institutions of higher education. This letter is in the form of a recommendation and a copy of the letter is Petitioner's Exhibit #21, admitted into evidence. The next notable event occurred in October or November of 1975, when an unidentified number of students objected to Dr. Siudzinski that Dr. Sedlak had assigned tests in his courses and not given those tests; to be followed by a period in which a group of tests were given to the students at one sitting. It is not clear that these complaints were made known to Dr. Sedlak and no official indication of these complaints was placed in the departmental file kept on Dr. Sedlak. In January, 1976, under a grant program, members of the faculty of the Department of Special Education, University of North Florida conducted a series of workshops on the subject of the aged. One of these workshops was conducted in St. Augustine, Florida on January 24, 1976. A part of the program was presented by Dr. Sedlak and Dr. Siudzinski observed part of the presentation. According to Dr. Sedlak, in a debriefing session Dr. Siudzinski indicated that he felt that certain of the information was irrelevant and counter to the behavioristic philosophy of the Department, to which Dr. Sedlak stated he protested and indicated that he had taught what was in the prescribed textbook. Dr. Sedlak testified that the subject then turned to Dr. Siudzinski's question of him, whether Sedlak had told anybody else about an incident which he had seen between a student and Siudzinski. Sedlak testified that the incident spoken of referred to Siudzinski being seen by Sedlak embracing and kissing a student, whom Sedlak knew. Sedlak claimed that he told Siudzinski that this incident was none of Sedlak's business and that he had said nothing. The subject, per Sedlak's testimony, then turned to whether Sedlak would be at the University of North Florida next year and Siudzinski supposedly said he really didn't know if Sedlak would fit in. The "incident" spoken of was supposed to have occurred a couple of weeks before this conversation. Siudzinski's version of the workshop debriefing was that he criticized Sedlak for being at variance with the purpose of the workshop, in that Sedlak was labeling matters and not dealing in the observable and measurable. Moreover, Siudzinski testified that some of the things that Dr. Sedlak was dealing in were contrary to what was being said by others participating in the workshop. Siudzinski claims he then brought up a complaint by a student which had been relayed through a secretary in the office of the Department of Special Education. Sedlak, by Siudzinski's statement, was kidding the student by saying that he had seen Siudzinski parked in front of her house. This was the total account of the January 24, 1976 debriefing, from Siudzinski's point of view. Dr. Siudzinski denies any incident in which he embraced a student or kissed a student. The subject was brought up again on January 27, 1976, after Siudzinski had attended one of Dr. Sedlak's classes for an hour and a half and spoke with him about the teaching. During the course of that conversation, Sedlak accused Siudzinski of "being on his back" and a heated argument ensued. Sedlak claims Siudzinski admitted being on his back about the so called "incident" with the "student" and Siudzinski claims that Sedlak told him that he would smear his, Siudzinski's name and family, so that he could not hold his head up in the community. Siudzinski said that he responded to this statement by asking Sedlak to resign. Another subject which was brought up on January 27, 1976, during the course of the discussion of the class, was Siudzinski's inquiry as to why Sedlak was teaching the I.T.P.A. tests, which Siudzinski thought was Inappropriate, by Sedlak's testimony. Dr. Siudzinski did not testify on whether he commented on teaching the I.T.P.A. or not. He simply said that he found some good things and some bad things in Dr. Sedlak's teaching. After the discussion of January 27, 1976, Dr. Siudzinski called Dr. Lassitor the next morning and told Dr. Lassiter of his concern about the accusations which Dr. Sedlak had placed against him on the subject of the student incident. Dr. Siudzinski observed another of Dr. Sedlak's classes on January 28, 1976. About this time period, Dr. Siudzinski prepared a first draft of a document entitled Discrepancy Evaluation Model Competencies which he intended to evaluate Dr. Sedlak on. Petitioner's Exhibit #24 is this document. In addition, Dr. Siudzinski submitted as a part of a memorandum of February 2, 1976, certain competencies in the behavior modification area which he expected to evaluate Dr. Sedlak on. The copies of this memorandum and the evaluation on behavior modification are found as Petitioner's Exhibit #25, admitted into evidence. These items found as Petitioner's Exhibits #24 and #25 were provided for Sedlak. These discussions mentioned above, between Dr. Sedlak and Dr. Siudzinski, were continued on February 5, 1976. On February 6, 1976, a meeting was held between Dean White, the then Dean of the College of Education, University of North Florida; Dr. Andrew Robinson; Dr. Siudzinski and Dr. Sedlak with the idea of trying to reconcile the differences between Dr. Siudzinski and Dr. Sedlak. The meeting also had as a topic of discussion, the propriety of requiring Dr. Sedlak to demonstrate his competency in behavior modification and the subject of the discrepancy evaluation model. There is a memorandum of February 9, 1976, indicating that there was a conversation between Professor Sedlak and Siudzinski. This memorandum is Petitioner's Exhibit #27, admitted into evidence. Dr. Sedlak does not recall this conversation and Dr. Siudzinski offered no testimony about it. A meeting was held February 10, 1976, between Dean White, Dr. Robinson, Dr. Sedlak and Dr. Siudzinski in which Dean White and Dr. Robinson suggested that If Dr. Sedlak had a complaint to make about Siudzinski's morals or behavior, he should state them. Sedlak's reply was that he had noting to say at that time. Dr. Robinson recalls that other subjects in the conversation were the question of Dr. Sedlak's competency in behavior modification and the possibility of offering an assistance quarter to improve Dr. Sedlak's knowledge of behavior modification. Siudzinski was to go back and think about what to do on the subject of the assistance quarter. In this same time frame there were several conversations between Dr. Siudzinski and Dr. Lassiter concerning Dr. Sedlak's performance and Dr. Lassiter had indicated that he thought that perhaps an assistance quarter was a proper aid, even though the matter concerned Dr. Sedlak's qualifications as opposed to his teaching skills. This subject of an assistance quarter was also discussed between Dr. Lassiter and Dr. Robinson at about this time. A meeting was held on February 13, 1976, between Dr. Siudzinski and Dr. Sedlak. A memorandum which summarized the results of that meeting is Petitioner's Exhibit #29, admitted into evidence and made a part of the record herein. This particular meeting was an evaluation session in which Dr. Siudzinski discussed one of the courses which Dr. Sedlak was teaching, to wit, EEC 604. He also mentioned the S.E.P.A. program audit which Sedlak was to participate in. Discussion was entered into about remedying the deficiency in behavior modification, which Dr. Siudzinski felt that Dr. Sedlak had. Suggestions offered were; taking a class and peer evaluation. The Discrepancy Model of Evaluation was also discussed and Dr. Siudzinski removed Dr. Sedlak from that project. The removal occurred because Dr. Siudzinski had talked to Professor D'Zamko and come to the conclusion, based on that conversation and his own observations, that Sedlak did not understand the project sufficiently and was not providing equitable participation with D'Zamko. Dr. Sedlak had not boon privy to the conversation between D'Zamko and Siudzinski. Dr. Sedlak complied with the request pertaining to EEC 604 and apparently complied with the request pertaining to the S.E.P.A. program audit. On February 27, 1976, a memorandum which is Petitioner's Exhibit #32, was sent from Dr. Siudzinski to Dr. Sedlak requesting an appointment between the two. Dr. Sedlak did not respond to the memorandum and a memorandum of March 8, 1976 was sent as a follow up requesting a meeting. This memorandum, Petitioner's Exhibit #33, admitted Into evidence, specifically sets out the topic of the meeting. One of the topics of the meeting, which was conducted on March 10, 1978, concerned the efforts which Dr. Sedlak had taken to cover one of his class sessions, EEC 604. The form that was filled out to have a sub-stitute teacher showed the wrong date. The form additionally indicated that Dr. Van Nagel would conduct the entire class, which was not possible since Dr. Van Nagel had a scheduling conflict for the first two hours of the four hour session, which was to be the length of time of Dr. Sedlak's class on that occasion. Dr. Sedlak had requested Dr. Cathy Hartman, another member of the faculty, to cover the first part of the class, and this was not reflected on the form. Dr. Hartman was unable to cover the class and this knowledge was only made known at 5:00 P.M. the day before the class session. The first part of the class to be covered was one in which a test was given to the students. Dr. Siudzinski took over that portion of the class and found the test instrument was not fair to those persons who did not have miniature calculators and the substance of the test was not acceptable in his view. A summary of the evaluation session of March 10, 1976, is Petitioner's Exhibit #34, admitted into evidence and made a part of the record herein. Dr. Siudzinski requested that he be provided with the test instruments involved in the EEC 604 course. One of the test instruments was the one given by Dr. Siudzinski and is Petitioner'S Exhibit #35, admitted into evidence. Of the remaining test instruments, one or more were never provided to Dr. Siudzinski. Dr. Sedlak's explanation was that some of the tests had been destroyed and some of the tests were found subsequent to the time that he was removed from the Department of Special Education. Another subject in the evaluation session of March 10, 1976 was the discussion of behavior modification. No resolution was reached on the subject of the possibility of Dr. Sedlak taking a course in behavior modification and Dr. Siudzinski agreed to look into this further. The memorandum covering the evaluation session indicates that an agreement was reached on a meeting to be held with Dr. Andrew Robinson on March 12, 1976, to discuss the assistance quarter, which was to begin March 26, 1976. Dr. Sedlak claims that no such discussion was entered into concerning the subject of assistance quarter or a meeting with Dr. Robinson. Dr. Siudzinski remembers that the subject of setting up an assistance quarter had been discussed in an evaluation session, although he does not mention which session. In fact, after a memorandum of notice, a meeting was held with the then Dean Designate Andrew Robinson on March 18, 1976. At the meeting Dean Robinson had a copy of the memorandum summary of the meeting of March 10, 1976 between Dr. Sedlak and Dr. Siudzinski which is Petitioner's Exhibit #34, admitted into evidence. Dr. Robinson indicated that he felt that the problem with the class coverage was serious. Dr. Sedlak responded that he thought this was trivial. Nonetheless, Dr. Robinson instructed Dr. Sedlak that these matters would begin to pile up. The subject of the assistance quarter was brought up, and Dr. Robinson indicated that if Dr. Sedlak refused to participate in the assistance quarter and resigned, he wanted to know what Dr. Siudzinski would provide in the way of an employment reference. Dr. Siudzinski indicated that he would not volunteer any derogatory information about Dr. Sedlak to a prospective employer. The subject of an assistance quarter was concluded by Dr. Robinson telling Dr. Sedlak that he would expect the assistance quarter to he a part of the spring quarter duties of Dr. Sedlak. Dr. Sedlak, in his testimony in the hearing, denied that any conversation on the assistance quarter was entered into. Dr. Siudzinski again asked for the test instruments which were involved in EEC 604 and Dr. Sedlak refused to give these instruments to Dr. Siudzinski but indicated that he would give them to Dr. Robinson. As stated before, some of these test instruments were never provided to Dr. Siudzinski, nor were they provided to Dr. Robinson. Dr. Robinson also asked Dr. Sedlak at the meeting were there reasons other than professional ones why Dr. Siudzinski would be putting Dr. Sedlak through an assistance quarter. Dr. Sedlak responded that he would not deal with that at that time. After the meeting between Siudzinski, Robinson, and Sedlak, Sedlak came to Robinson's office and stated that the reason Siudzinski was after him was because one day Sedlak had caught Siudzinski and a student in a compromising situation. Robinson responded to this statement by saying that if Sedlak would make formal charges against Siudzinski he would Investigate and discipline Siudzinski if it were true; however, if It was untrue, Dr. Sedlak would be disciplined. Dr. Sedlak said he would need time to think about such a complaint. He never did offer to make a formal complaint. Between the winter and spring quarters of 1976, Dr. Sedlak entered the hospital for a kidney disorder. He had signed out for a car from the University on the day he entered the hospital. The car was signed out from the University to go to Lake City, Florida to teach a workshop for the aged. When he became ill he went to the hospital and parked the car, leaving the car with the keys in the ignition. He then called Dr. Siudzinski and told him he could not attend the workshop the next day because he was in the hospital, after which he hung up. He did not indicate to Dr. Siudzinski which hospital he was in. Through the efforts of the administration and in particular Dr. Siudzinski, it was determined that Dr. Sedlak was in Memorial Hospital, Jacksonville. Dr. Sedlak did not indicate his whereabouts until the next day, at which time he called Dr. Siudzinski and indi-cated that the car was in the Memorial Hospital parking lot. Dr. Robinson was concerned about the health issue and offered to allow Dr. Sedlak to assume some other duties other than teaching in the spring quarter of 1976. Dr. Sedlak declined his offer and returned to his teaching duties. Dr. Robinson made clear that this return to teaching would cause Dr. Sedlak to be treated as any other teacher even though he was going to be on an assistance quarter. As a part of this discussion, Dr. Robinson required Dr. Sedlak to produce a letter saying he was capable of performing his teaching duties Dr. Sedlak responded by correspondence of March 29, 1976, which is Petitioner's Exhibit #39, admitted into evidence. Dr. Siudzinski followed this letter by a letter of March 30, 1970 to Dr. Sedlak which is Petitioner's Exhibit #40, admitted into evidence and indicates that in the spring quarter, Dr. Sedlak would perform duties as an Associate Professor in the Department of Special Education, as well as the additional responsibilities that had been discussed, meaning the assistance quarter. Again Dr. Sedlak denies that the assistance quarter was to be performed. On April 1, 1976, Dr. Siudzinski discussed a meeting of March 29, 1976, between he and Sedlak and reiterates his request for the exams, the five examinations which were used In the winter quarter course EEC 604. Petitioner's Exhibit #42, admitted into evidence, is a composite exhibit containing two examinations of the winter quarter of 1976 and three sets of answers. These items were found in June or July, 1976, but as stated were never given Dr. Siudzinski. Another evaluation session was held between Dr. Siudzinski and Dr. Sedlak on April 22, 1976. A summary of this evaluation session is found in Petitioner's Exhibit #43, admitted into evidence and made a part of the record herein. Some of the subjects covered in the evaluation session included a discussion of the attendance of a workshop on behavior modification, and another request that the examinations for the EEC 604 course be provided. He was also requested to provide the instruments and techniques involved in that course and other courses being taught by Dr. Sedlak. These were provided. An inquiry was made about the progress that Dr. Sedlak had made in mastering Discrepancy Model Competencies contained in the list of January 30, 1976. Other matters covered were the progress which Dr. Sedlak had made on the mastering of behavior modification competencies set up in the memorandum of February 2, 1976. It was also discussed that Dr. Sedlak was not answering his phone in the office. Finally, Dr. Siudzinski indicated that he might be visiting Dr. Sedlak's classes in the future and requested his list of competencies that were to be covered. Dr. Sedlak stated that he would not provide the exams in the EEC 604 class without speaking to the union. He made a similar reply on the request for instruments and techniques in other courses and a similar reply about progress which he had made in mastering the Discrepancy Model Competencies. Additionally, he said he refused to be tested on the Discrepancy Model Competencies, since he was an Associate Professor. He made the same response to the inquiry on progress on behavior modification competencies. He also stated that many of the behavior modification competencies were incorporated in his classes. (Sedlak also taught several sessions on behavior modification for the Duval County School Board outside his normal duties.) The complaint about answering the phone was responded to by Dr. Sedlak in which he said that when he was busy with someone in the office or working on something important, it was not necessary to answer the phone. He agreed to produce the list of competencies to be covered in his upcoming classes. The summary of the evaluation goes on to request in writting copies of the exams in the EEC 604 course for the winter quarter 1976. It also requests in writting, copies of the instruments and descriptions of techniques in evaluating courses being taught by Dr. Sedlak. It requests in writting an answer on progress made in mastering the Discrepancy Model Competencies of January 30, 1976 and the progress made in mastering behavior modification competencies attached to the memo of February 2, 1976. In connection with the discussion of instruments and techniques in evaluating students in the courses being taught by Dr. Sedlak, Petitioner's Composite Exhibit #44, admitted into evidence, is copies of classes assigned to be taught by Dr. Sedlak for the period of his stay with the Department of Special Education. On April 27, 1976, Dr. Sedlak responded to the memorandum on the meeting on April 22, 1976. In this memorandum he suggested that the tests were not kept and that he does not traditionally keep tests and asked why the matter of the tests of the EEC 604, winter quarter kept coming up. He stated that he provided evaluation instruments for EEC 500 as enclosed and stated that the other evaluation instruments were not kept for other courses. His response to the Discrepancy Model of Evaluation was that he had been removed from responsibilities in the area and made no further response. Finally, in response to the question on behavior modification competencies, he simply stated that he had given workshops in behavior modification for Duval County Schools. On May 28, 1976, a memorandum was sent to Dr. Sedlak from Dr. Siudzinski requesting a meeting for the annual evaluation to be held June 2, 1976. During the spring quarter of 1976, Dr. Roy L. Lassitor met with members of the facultv of the Department of Special Education other than Dr. Siudzinski and Dr. Sedlak and requested them to answer several questions. Me asked them if Dr. Siudzinski was involved with any female students to their knowledge, to which they responded no. He asked them if the faculty was aware of any incident between Dr. Siudzinski and some student and they responded yes, but only as a rumor. He asked them if they had confidence in Dr. Siudzinski as chairperson and they responded that they did. The persons contacted were Dr. Van Nagel, Dr. Serwatka, Mrs. D'Zamko and Dr. Gonzales. In that quarter, Dr. Robinson met several times with Dr. Siudzinski to try to clear up the progress that had been made by Dr. Sedlak on the assistance quarter. He also met with Dr. Sedlak and reminded him that he expected Sedlak to perform the assistance quarter laid out by Siudzinski. Respondent's Exhibit #2, admitted into evidence, is a list of Dr. Robinson's suggestions for the assistance quarter. In other meetings with Siudzinski, Siudzinski stated that very few things that Dr. Sedlak had been requested to do had been done, and that he thought that Sedlak should be terminated. Some of the complaints that Siudzinski related to Dr. Robinson were, intimidation of secretaries, graduate students and assistants and disparaging remarks about Siudzinski. Dr. Robinson told Siudzinski to but these matters in writting and after reviewing the case, Dr. Robinson concurred with Siudzinski that Dr. Sedlak's contract should not be renewed. There was a meeting between Dr. Sedlak and Dr. Lassiter which has been previously referred to in the body of facts, specificallv the meeting between June 2, 1976 and June 10, 1976. In that meeting Dr. Lassiter offered Dr. Sedlak the opportunity to make charges against Dr. Siudzinski for his alleged improper conduct. Lassiter stated that he would remove the Chairman if it was a true claim and proceed to terminate Dr. Sedlak for cause if the charges of improper conduct with a student wore false. Sedlak did not bring a charge. An examination of the evidential facts indicates that the recommendation of the non-renewal of the Petitioner's contract, (1) was not based upon a constitutionally impermissible reason, (2) was not violative of any of the Petitioner's property rights and (3) complied with written standards, criteria, and procedures prescribed by the Board of Regents and university regulations. The briefs filed by the parties have been examined and the elements of those briefs which are deemed to be meritorious have been incorporated into the findings of fact of the undersigned.
Recommendation It Is recommended that the Respondent, University of North Florida, not renew the Petitioner's contract of employment with the University of North Florida beyond June 15, 1977 and that the Petitioner be found unentitled to restoration of rights and privileges previously enjoyed before the recommendation of non-renewal of his employment contract with the University of North Florida. DONE AND ENTERED this 10th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June COPIES FURNISHED: Mr. Anthony Demelas American Federal of Teachers 160 College Street Burlington, Vermont Delbridge L. Gibbs, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Joseph Sedlak 5336 Windemere Drive Jacksonville, Florida 32211 Kenneth A. Megill Florida Education Association/United 208 West Pensacola Street Tallahassee, Florida 32304
Findings Of Fact Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included 3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission. 5-24-85: slapping the face of a female student and fighting with her in the classroom. 2-27-86: Assault on another student. 3-21-86: Late to school on test day; left holding area without permission, banged on classroom doors disturbing testees; and evading security and administrators. 5-29-86: Assault on another student; truancy; and defiance of authority. For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were: Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior." Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is good." P.E.- Ms. Jardine: Class work "F", conduct "D". Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature." English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.] Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will." Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent: Science: 101 periods. Music: 97 periods. P.E.: 91 periods. Mathematics: 86 periods. English: 104 periods. Graphics: (second semester only) 65 periods. In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C". All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT: Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program. DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1986. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161 and 14155 West Dixie Highway North Miami, Florida 33161 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly decided to deny Petitioner tenure and promotion.
Findings Of Fact On or about August 8, 1997, Petitioner began working for Respondent as an Assistant Professor in a tenure-earning position in the COE, Department of Health, Physical Education, and Recreation (DHPER). Because Petitioner was serving in a tenure-earning position, Respondent had to award her tenure by the end of six years of continuous full-time service or give her notice that Respondent would not offer her further employment beyond the end of the seventh year of employment. Petitioner received a copy of the applicable tenure criteria soon after she began her employment. The tenure criteria for scholarly publications required the following: (a) publish or show acceptance of at least three publications, including books, monographs, and articles in local, state, regional and national journals, which meet the peer-review process, not including abstracts/proceedings; (b) achieve additional publication credit, which may include individual citations in a text's quotes or credits for scholarly endeavors; and (c) present at least two papers at state, regional or national professional meetings. Petitioner also received a copy of Respondent's criteria for promotion from Assistant Professor to Associate Professor. The criteria state as follows in relevant part: The minimum number of publications will be three (3), which must be in indexed refereed professional journals, of which at least two (2) must list the candidate as the primary author. This includes, not in addition to, chapters in books, monographs for national use, and books. Chapters will treated as journal publications. The number of publications will be cumulative. Respondent is required to provide its faculty members with an annual faculty evaluation. For faculty members in tenure-earning positions, Respondent also is required to provide an annual tenure appraisal. On April 24, 1998, Petitioner received her 1997-1998 faculty evaluation. The evaluation reflected Petitioner's poor rating for evidence of papers or articles published in professional journals and/or of books published. There is no evidence that Respondent provided Petitioner with an annual tenure appraisal for the 1997-1998 academic year. Each academic term, Respondent and each of its faculty members, in tenured and non-tenured positions, sign an Assignment of Responsibility Form. The form lists the credit and non-credit generating activities and assigns a percentage of the employee's designated effort for each activity. The total percentage of designated effort for each academic term should equal 100 percent for one full-time-equivalent (FTE) faculty. The credit generating activities are specific student classes/courses. An assignment to teach courses with more than cumulative credit hours in the same semester is considered an overload. Faculty members on a nine-month pay plan are never required to accept an overload assignment. Assuming responsibility for designated effort in excess of 100 percent is strictly voluntary. Instructors receive additional pay beyond their base salary when they accept an overload assignment. Respondent always gives its nine-month faculty the opportunity to teach extra classes as an overload before hiring additional staff. The same is true for teaching summer school. Respondent's nine-month faculty has first choice to earn additional pay by teaching classes in summer school before Respondent hires adjunct professors. The nine-month faculty is not required to teach summer school. The non-credit activities include the following: supervision of cooperative education; (b) clinical instruction; (c) other instructional efforts (non-credit); (d) research; (e) public service; (f) academic advisement; (g) academic administration; (h) university governance; (i) leave of absence with pay; and (j) collective bargaining release time. There is no set percentage of designated effort for any particular non-credit activity. Respondent's faculty can always request that some percentage of their designated effort be attributable to one of the non-credit activities, such as research. In such a case, Respondent would assign the faculty member less designated effort to other non-credit activities such as academic advisement. In every case, tenure-earning faculty members know or should know that Respondent expects them to begin working on research projects when they are hired in order to meet the tenure criteria for scholarly publications within the required time frame. This is true regardless of whether they elect to teach overloads or summer school and regardless of whether they request and receive a specific amount of designated effort for research each academic term. Other than as set forth below, there is no evidence that Petitioner ever requested Respondent to assign her a greater percentage of designated effort to research. On April 28, 1998, Petitioner signed the Assignment of Responsibility Form for the 1998 Spring semester. The form indicates that 86 percent of Petitioner's designated effort was spent teaching five classes for a total of 13 credit hours. Her only other assignment was academic advisement, which represented 14 percent of her designated effort. Petitioner agreed to teach during the 1998 Summer B semester. She taught two classes for a total of 3 credit hours, representing 64 percent of her designated effort. She had no other assignments that summer. For the 1998 Fall semester, Petitioner accepted a teaching overload. She taught six classes for a total of 15 credit hours, representing 99 percent of her designated effort. She also performed academic advisement for 21 percent of her designated effort. In the Spring semester of 1999, Petitioner taught five classes for a total of 13 credit hours, representing 86 percent of her designated effort. She was assigned to perform academic advisement for the balance of her time, equal to 14 percent of her designated effort. On April 28, 1999, Petitioner received her 1998-1999 faculty evaluation form. The form again reflected her poor rating for evidence of papers or articles published in professional journals and/or books published. On June 1, 1999, Petitioner received a tenure appraisal for the 1998-1999 academic year. The appraisal informed Petitioner that she needed to improve in the research category. Specifically, she needed to publish and present at least three to four research articles within a five-year period before applying for tenure. For the Summer B semester of 1999, Petitioner taught two classes for a total of four credit hours, representing 84 percent of her designated effort. She had no other assignments that summer. In the Fall semester of 1999, Petitioner taught seven classes for a total of 16 credit hours, representing 106 percent of her designated effort. She also performed academic advisement for an additional 20 percent of designated effort. For the Spring Semester 2000, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She served as an academic advisor for an additional 20 percent of her designated effort. On April 26, 2000, Petitioner received her 1999-2000 faculty evaluation form. The form indicates that Petitioner's research and creative ability were not applicable. The record does not show that Petitioner engaged in any scholarly presentations or research and writing projects during the 1999- 2000 academic year. In the Summer B term of 2000, Petitioner taught one class for a total of one credit hour, representing four percent of her designated effort. She did not have any other assigned duties that summer. For the Fall semester 2000, Petitioner taught seven courses for a total of 14.5 credit hours, representing 91 percent of her designated effort. She also agreed to devote three percent of her designated effort in each of the following areas: (a) research; (b) public service; and (c) academic advisement. In the Spring semester of 2001, Petitioner taught six classes for a total of 14 hours, representing 93 percent of her designated effort. She also was assigned the following responsibilities: (a) five percent of her time in research; (b) five percent of her time in public service; and (c) 10 percent of her time in academic advisement. For the Summer A term of 2001, Petitioner taught two classes for a total of three credit hours, representing 62 percent of her designated effort. In Summer B term of 2001, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. On July 5, 2001, Petitioner received her annual faculty evaluation for the 2000-2001 academic term. Petitioner received a fair rating regarding evidence of papers or articles published in professional journals and/or of books published. On August 27, 2001, Petitioner received her annual tenure appraisal for the 2000-2001 academic term. The appraisal acknowledges that Petitioner had improved significantly in the areas of research and scholarly activities. According to the appraisal, Petitioner had made several research presentations, submitted articles for publication, and choreographed several dance pieces for the Orchesis Dance Concert and public school activity programs. The appraisal stated that after a few of Petitioner's research articles were published, she would be on par for complete satisfaction of the scholarly publications requirements. The August 27, 2001, tenure appraisal also commended Petitioner for her public service work. At the same time, the appraisal warned Petitioner not to commit too much of her time to public service because she might neglect other tenure criteria areas. The appraisal advised Petitioner that it was extremely important to balance her time between teaching, research, and service. In the Fall semester of 2001, Petitioner taught five classes, for a total of 16 credit hours, representing 96 percent of her designated effort. She spent 20 percent of her designated effort working as an academic advisor. For the Spring semester of 2002, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She divided the balance of her designated effort as follows: (a) five percent to research; five percent to public service; and (c) 10 percent to academic advisement. In the Summer A term of 2002, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. For the 2001-2002 academic term, Respondent did not perform a faculty evaluation or tenure appraisal of Petitioner. Dr. Virden Evans, Chairman of DHPER, gave Petitioner copies of the evaluation forms and requested that she perform a self- evaluation before meeting with him to discuss her performance. Petitioner never returned the evaluation forms to Dr. Evans. On September 9, 2002, Petitioner submitted her applications for tenure and promotion, together with a portfolio to document her qualifications. The tenure application listed the following two research projects as in progress: (a) a 2001 project titled "Exercise Adherence Among African-American Females"; and (b) a 2002 project titled "Perceived Stress and Burnout of MEAC Track and Field Athletes." There is no evidence that Petitioner completed, or submitted for publication, a paper or article based on either of these research projects. The tenure application also listed a 2002 research project titled "An Assessment of NCAA D-1A Academic Advisors Salaries", naming Petitioner as a contributing, but not leading participant. The application indicated that the participants in the study submitted the research project for acceptance at the 2003 American Alliance of Health, Physical Education, Recreation, and Dance (AAHPERD) 118th National Convention as part of its program and proceedings during a research consortium poster session. There is no persuasive evidence that the research project was accepted at the national convention in Baltimore, Maryland, as submitted. During the hearing, Petitioner presented evidence that the research project involving academic advisors salaries was submitted as a one-page abstract in May or June of 2002, and accepted in November or December 2002, for poster presentation at the February 2003 Southern District AAHPERD Convention, in Savannah, Georgia. There is no persuasive evidence that Petitioner timely provided Respondent with documentation of the abstract's acceptance as a poster presentation during a convention proceeding or that the research project resulted in a peer-reviewed written paper that was ever published other than as an abstract in the convention program. The tenure criteria at issue here specifically exclude abstracts/proceedings. Petitioner's tenure application listed several dance productions, naming her as the director and choreographer. It is apparent that Petitioner spent valuable time creating the dances, writing scripts for skits, designing costumes, etc. However, the greater weight of the evidence indicates that these creative activities are not scholarly publications in journals that meet the peer-review process. During the hearing, Petitioner presented evidence that she included a reference to her doctoral dissertation in her portfolio. The dissertation, entitled "A Comparison of Perceived Stress Levels of College Freshman Athletes and Non- Athletes" was published in 1987 by the Florida State University, College of Education, Department of Movement Science and Physical Education, in partial fulfillment of the requirement for Petitioner's degree of Doctor of Philosophy. The most persuasive evidence indicates that the dissertation is not a peer-reviewed scholarly publication in a journal or a book, completed by Petitioner within her tenure-earning time frame. Petitioner is credited as the author of one scholarly publication that meets the requirements of the applicable tenure and promotion criteria. In August 2002, Petitioner's article entitled "Introductory Activities in Elementary Physical Education Classes" was accepted for publication in the Winter 2003 Journal of the Florida Alliance for Health, Physical Education, Recreation and Dance. In September 2002, Dr. Evans continued to serve as Chairman of DHPER. As a tenured professor, Dr. Evans attended some of DHPER's Tenure and Promotion Committee meetings but did not vote on Petitioner's applications for two reasons. First, he abstained because, as Chairman of DHPER, he would have to make a recommendation on the applications to the COE Tenure and Promotion Committee. Second, Dr. Evans had a close professional relationship with Petitioner and reserved his input on her applications, hoping that she would meet the publication requirements before he had to take a position. Dr. Janet Sermon, COE's Assistant Dean for Academic Affairs, was one of DHPER's tenured faculty members. In the fall of 2002, Dr. Sermon often was required to act on behalf of the COE's Dean or, occasionally, in the capacity of COE's Acting Dean in recommending approval or disapproval of tenure and promotion applications to the University Tenure and Promotion Committee. Therefore, she did not participate in DHPER's Tenure and Promotion Committee meetings. She did not vote on Petitioner's applications due to this potential conflict of interest. Coach Bobby Lang was one of DHPER's tenured faculty members. He was on medical leave during the fall of September 2002. The most credible evidence indicates that Coach Lang had notice of Petitioner's pending applications but chose not to participate in DHPER's Tenure and Promotion Committee meetings while on medical leave. Coach Samuel Bogan was one of DHPER's tenured faculty. His coaching schedule made it difficult for him to participate in DHPER Tenure and Promotion Committee meetings. Coach Bogan had notice about Petitioner's pending applications but was absent when the DHPER Tenure and Promotion Committee voted on her applications. DHPER had four other tenured faculty members: (a) Dr. Steve Chandler; (b) Dr. Maria Okeke; (c) Dr. Barbara Thompson, Chairperson of DHPER's Tenure and Promotion Committee; and (d) Dr. Joseph Ramsey. DHPER's Tenure and Promotion Committee met for the first time on September 16, 2002. The committee did not consider Petitioner's application at that meeting. The DHPER Tenure and Promotion Committee met again on October 2, 2002, to vote on Petitioner's tenure and promotion applications. Coach Bogan, Dr. Evans, Dr. Sermon, and Coach Lang were not present for reasons stated above. A secret ballot on Petitioner's tenure application resulted in two (2) votes to deny and two (2) abstentions. A secret ballot on Petitioner's promotion application resulted in three (3) votes to deny and one (1) abstention. In a memorandum dated October 3, 2002, Dr. Thompson advised Dr. Evans of the committee's decision to recommend denial of Petitioner's request for tenure and promotion. In a letter dated October 4, 2002, Dr. Evans advised Petitioner of the committee's vote to recommend denial of her applications. In a letter dated October 8, 2002, Dr. Evans explained to Petitioner that the committee based its recommendation on the apparent lack of a sufficient number of publications. Subsequently, Dr. Evans recommended approval of Petitioner's applications to the COE Tenure and Promotion Committee. Thereafter, the COE committee voted to recommend denial of both applications. Subsequently, COE's Dean recommended denial of Petitioner's applications to the University Tenure and Promotion Committee. The University committee voted to recommend approval of Petitioner's promotion application and denial of her tenure application. Dr. Fred Gainous was Respondent's President during the time that Petitioner's applications were pending. Dr. Gainous had the responsibility to nominate candidates for tenure to Respondent's Board of Trustees, the entity with the authority to make final decisions granting tenure. The Board did not consider applications for tenure without such a nomination. Dr. Gainous did not nominate Petitioner for tenure before Respondent's Board of Trustees. President Gainous had authority to make the final decision regarding Petitioner's application for promotion. Dr. Gainous took no action in this regard because Petitioner's promotion was a moot question in light of the denial of her application for tenure and the issuance of a terminal contract for the 2003-2004 academic term. In a letter dated March 31, 2003, President Gainous advised Petitioner that her application for tenure was denied and that she would not be offered further employment beyond the end of her seventh year of employment. The letter states that the action was based on Petitioner's failure to meet the publication requirements of the COE. Dr. Gainous sent Petitioner a letter dated June 3, 2003. The letter advised Petitioner that her application for promotion was denied.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying Petitioner tenure and promotion and terminating her employment. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of October, 2004. COPIES FURNISHED: Avery D. McKnight, Esquire Ruth Nicole, Esquire Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Patricia A. Tucker 2802 Primrose Lane Tallahassee, Florida 32301 Elizabeth McBride, General Counsel Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Fred Gainous, President Florida A & M University 400 Lee Hall Tallahassee, Florid 32307-3100
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: During the 1984-85 and 1985-86 academic years, Respondent attended Highland Oaks Junior High School. During the 1985-86 academic year, Respondent was absent thirty-six (36) times, tardy thirty (30) times, and under suspension for twenty-eight (28) days. The Respondent did not receive a final grade for the 1985-86 academic year because he was transferred to Jan Mann Opportunity School on May 29, 1986. The last grading period for which Respondent received grades for the 1985-86 academic year was the third grading period which covered February 3, 1986 through March 27, 1986. For that grading period, the Respondent received five "F's" and one "D" for academic performance. When a teacher or other staff member at Highland Oaks Junior High School has difficulty with a student's behavior, the teacher may submit a report of the incident to the front office, The reports are called Student Case Management Referral Forms and are reserved for serious behavior problems. During the 1985-86 academic year, nine Student Case Management Referral Forms were written regarding Respondent's behavior. On December 2, 1985, a Student Case Management Referral Form was written because Respondent was rude and disruptive in class and did not serve detention as requested. On December 10, 1985, a Student Case Management Referral Form was written because Respondent was disruptive in class and was so out of control that while swinging his arms, he struck one of his teachers in the mouth (apparently unintentional). The Respondent was suspended for five days. On January 9, 1986, a Student Case Management Referral Form was written because the Respondent used provocative language to one of his teachers. On February 7, 1986, a Student Case Management Referral Form was written because Respondent repeatedly talked back and was very disrespectful and defiant to one of his teachers. The Respondent was suspended for three days. On March 7, 1986, a Student Case Management Referral Form was written because Respondent cut class and was returned to the school by police. On April 21, 1986, a Student Case Management Referral Form was written because Respondent was found in the hallway cutting class by administrators at approximately 9:00 a.m. The Assistant Principal told the Respondent to report to the office. The Respondent did not report to the office as requested, and at 3:00 p.m., a second Student Case Management Referral Form was written on April 21, 1986, because of Respondent's failure to obey the Assistant Principal's directives to report to the office. On May 5, 1986, a Student Case Management Referral Form was written because Respondent used profanity in class. The Respondent was suspended for five days. On May 12, 1986, a Student Case Management Referral Form was written because Respondent cut class and was with a group of boys who set off a fire alarm. The Respondent was suspended for five days. Ms. Van Dam is the building substitute teacher at Highland Oaks Junior High School and substituted in many classes where the Respondent was present. The Respondent was very defiant and resisted authority in all Ms. Van Dam's classes. The Respondent failed to obey simple requests and stated that he did not have to do certain things and that no one could force him to do certain things. On one occasion, Ms. Van Dam asked the Respondent to change seats. The Respondent replied, "F--- you, I will not change seats". During one class period, the Respondent went under an art table and refused to come out. Respondent's conduct consistently caused Ms. Van Dam to interrupt her normal classroom lessons. Ms. Emma Garcia-Mendoza is an art teacher at Highland Oaks Junior High School and had Respondent as a student during the 1984-85 and 1985-86 academic years. In all classes, the Respondent was disruptive and defiant. On one occasion, the Respondent was out of his seat, and Ms. Garcia-Mendoza told the Respondent to sit down two or three times. Respondent refused to sit down and walked out of class without permission. During class, Respondent had a habit of blurting comments out, not directed to anyone in particular. On one occasion, the Respondent returned to class after a suspension and was annoying a female student in the back of the room. Ms. Garcia-Mendoza told the Respondent not to bother the other student and told Respondent to move. The Respondent shouted to Ms. Garcia-Mendoza, "F--- you, you f---ing b----, I hate you", and walked out of the door. On another occasion, Respondent got into an altercation with another student, and when Ms. Garcia-Mendoza attempted to break-up the altercation, the Respondent pulled his fist back as if to strike Ms. Garcia- Mendoza, but stopped. The Respondent's conduct consistently caused Ms. Garcia- Mendoza to interrupt her regular classroom instruction and routine. Mr. Arnold Golditch teaches manufacturing or "shop" at Highland Oaks Junior High School. Golditch had Respondent as a student for the 1984-85 academic year and part of the 1985-86 academic year. The Respondent had a habit of blurting out comments in class and getting up and walking around during the lesson. The Respondent was consistently defiant during the 1985-86 academic year. Mr. Golditch was required to move the Respondent's seat on several occasions. The Respondent's conduct consistently required Mr. Golditch to interrupt his prepared classroom lesson. Ms. Margaret Stanley is a guidance counselor at Highland Oaks Junior High School. During the 1984-85 academic year, each of Respondent's teachers complained to Ms. Stanley about Respondent's disruptive behavior and work performance. Particularly, the teachers complained that the Respondent would talk out in class. During the 1984-85 and 1985-86 academic years, Ms. Stanley held many conferences with the Respondent and his mother. The conferences did not result in any changed behavior on the Respondent's part. Mr. Fontana, the assistant principal at Highland Oaks Junior High School, held a conference with Respondent's mother during the 1985-86 academic year but her reaction was mainly one of hostility. For the 1984-85 academic year, the Respondent received three "F's", one "C" and one "Incomplete" as final academic grades.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE and ORDERED this 21st day of September, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2398 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: Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1, 2 and 3. Adopted in Finding of Fact 13. Adopted in Finding of Fact 12. Adopted in Findings of Fact 8 and 10. Adopted in Finding of Fact 11. Adopted in Findings of Fact IS, 16 and 17. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132 James C. Bovell, Esquire 1401 Ponce de Leon Blvd. Coral Gables, Florida 33134 Ms. Eldie Samuels 2529 N.E. 191st Street, Apt. 4 North Miami Beach, Florida 33100 Dr. Leonard Britton, Superintendent Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
