Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing the Petition for Administrative Hearing filed in this proceeding. DONE and ENTERED this 26th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1989. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen 0. Emmanuel Emmanuel, Sheppard and Condon 30 South Spring Street Pensacola, Florida 32596 Carl B. Morstadt Chief Counsel of Medicaid 1317 Winewood Boulevard Building 6, Room 233 Tallahassee, Florida 32399-0700
The Issue Whether petitioner was "professional staff" within the meaning of Article VII of the University Constitution and therefore entitled to continue as Dean of the College of Education, in the absence of a showing of good cause why he should not continue? Whether FSU breached the 1984-1985 employment contract between the parties when it relieved petitioner of responsibilities as Dean of the College of Education on July 24, 1985? Whether FSU was under a legal obligation to give petitioner notice of good cause for not renewing the parties' 1984-1985 employment contract for the 1985-1986 or subsequent academic years?
Findings Of Fact After James L. Gant announced his intention to step down as Dean of FSU's College of Education, Augustus B. Turnbull, III, FSU's Vice President for Academic Affairs, appointed the College of Education Dean's Search Committee, also known as the Education Dean Search Committee (Search Committee) and named Robert Glidden, Dean of FSU's School of Music, chairman of the Search Committee. Petitioner's Exhibits Nos. 3 and 9. Dr. Turnbull asked that the Search Committee "try to have a new dean on board no later than the fall semester of 1983." Petitioner's Exhibit No. 3. On December 6, 1982, Dean Glidden executed Part A of Form No. SUS/PFR- 001/75 (R3/77), a formal position vacancy announcement prerequisite to any national search. (T.29-30) This form described the "Contract Period" as 12 months; gave July 1, 1983, as the anticipated starting date; stated the position title as "Dean, College of Education"; categorized the position as having regular professorial status; and indicated the "Discipline/Field" as "Administration." Petitioner's Exhibit No. 7. As part of the national search, the Search Committee caused circulars like Petitioner's Exhibit No. 9, "invit[ing] applications and nominations for the position of DEAN COLLEGE OF EDUCATION" to be published in periodicals like the Chronicle of Higher Education, which is how the vacancy came to the attention of petitioner Bruce Wayne Tuckman, whose application for the position eventually proved successful. Agreement Reached On April 28, 1983, Dr. Turnbull wrote Dr. Tuckman "to offer [him] the position of Dean of the Florida State University College of Education which carries with it the rank of Full Professor of Education ... effective ... July 1, 1983." Petitioner's Exhibit No. 10. In the letter, Dr. Turner undertook to recommend Dr. Tuckman for tenure "at the first opportunity, which will be during the 1983-1984 Academic Year." Id. On May 3, 1983, Dr. Tuckman signed the bottom of the letter in the blank provided to indicate acceptance of the offer. In May of 1983, Drs. Turnbull and Tuckman executed an employment contract covering the period July 1, 1983 to August 31, 1983, stating "CLASSIFICATION TITLE/RANK" as "Dean and Professor" and indicating 9040 as the class code. Respondent's Exhibit No. 15. "Dean and Professor" with a class code of 9040 is listed among the general faculty classification titles and codes. Respondent's Exhibit No. 2. "Professor" appears on the same list with a class code of 9001. On the strength of the agreement evidenced by Dr. Turnbull's letter of April 28, 1983, and Respondent's Exhibit No. 15, Dr. Tuckman, a much-published scholar, left a tenured position at the City University of New York and moved to Tallahassee from New York in the summer of 1983. On September 1 and 2, 1983, respectively, Drs. Turnbull and Tuckman executed a second employment contract with terms identical to the first, except that it covered the period September 1, 1983 to August 31, 1984, and had a greater number of pay periods, accordingly. Petitioner's Exhibit No. 11. 1984-1985 Contract Central to the present controversy is the contract executed by Dr. Turnbull on September 2, 1984, and by Dr. Tuckman on September 6, 1984, which provides, in pertinent part: STATE UNIVERSITY SYSTEM OF FLORIDA FLORIDA STATE UNIVERSITY 12 MONTH EMPLOYMENT CONTRACT This contract between Florida State University and the employee is subject to the Constitution and laws of the State of Florida, the rules and regulations of the Board of Regents... Employee Name: Bruce W. Tuckman * * * 3. Department Name: Dean Education * * * 5. Dates of Appointment: 09-01-84 to 08-31-85 * * * 8. Classification Title/Rank: Dean and Professor Class Code: 9040 Appointment Modifier: B * * * The following statement is only applicable to employees holding visiting appointments; or those appointed for less than one academic year; or (3) those with less than five years continuous service who are on soft money": Your employment hereunder will cease on the date indicated. No further notice to you of cessation of employment is required. Petitioner's Exhibit No. 13. "[A]ppointment modifier B ... is for courtesy faculty status." Erb Fontenot v. Florida State University, No. 85-3843 (F.S.U.; Jan. 5, 1987) at page 2. "Persons holding an administrative or services role normally hold a courtesy rank Rule 6C2-1.004(6)(a)7.a. On March 26, 1984, President Sliger had written Dr. Tuckman, advising him that he had been awarded "tenure to be effective Fall Semester, 1984." Respondent's Exhibit No. 1. Auspicious Beginning At first, all seemed to go well with the College of Education and its new dean. As chief executive officer, Dr. Tuckman was responsible for "all budgetary, fiscal and personnel matters in the College of Education," (T.58) and "had the executive responsibility for helping to set the directions and execute the policies and procedures of the college ... [,] sat as an ex officio member of the Policy Advisory Board ... [and] on a number of [other] committees." (T.50) He tended to "general day-to-day kinds of things ... responding to letters," (T.31), affirmative action and grievance matters. As the University Director of Teacher Education, he chaired FSU's Committee on Teacher Education, "organized conferences and committees on behalf of the College of Education [,] provided interface between the College of Education and the public school districts and schools of the state and other officials of the state ... [and] represented the College of Education to outside constituencies, [including] alumni [and] legislators..." (T.58) On May 31, 1984, Petitioner's Exhibit No. 12, and again on March 27, 1985, Petitioner's Exhibit No. 14, Dr. Turnbull rated Dr. Tuckman "satisfactory," the highest rating possible, on forms on which he characterized his primary duties as Administration." Dean Tuckman performed the duties of dean as described in the By-Laws of the College of Education. Petitioner's Exhibit No. 18. Although not required to do so, he also taught every year he served as dean. Complaints Made "[I]n the fall of 84, probably around October, November ... [after it became known that Stephen Edwards was] to assume the position of the Dean of Faculty in January of 1985, faculty members from the College of Education ... [approached him] concerned about the way the college was operating and the kinds of participation in its governance that the faculty were being able to have." (T.377) In due course, Dean Edwards, as he became, relayed these concerns to Dr. Turnbull. Dr. Turnbull had also heard complaints himself from members of the faculty of the College of Education, complaints which he originally dismissed as a normal reaction to somebody who is making necessary changes." (T.229) By the spring of 1985, however, he asked Dr. Tuckman to give him a "list of some of the faculty that he considered to be the future leaders of the college ... not necessarily the old guard or people who for one reason or another would be troublemakers, but a group of faculty on whom he would rely to carry out his policy directions for the college." (T. 228-230) Dr. Tuckman compiled such a list and furnished it to Dr. Turnbull. At a meeting he called in the summer of 1985, Dr. Turnbull discussed matters with "a significant number of" the people Dr. Tuckman had listed, and "asked them to work with [Dr. Turnbull] and the dean to turn the situation around." (T.230) The group struck Dr. Turnbull as noncommittal. At Dr. Turnbull's request, Dr. Tuckman then called a meeting of the Administrative Council, comprised of department chairmen and others. In this meeting, held on a Tuesday, possibly July 16, 1985, it was decided that the Administrative Council would meet again with Dr. Tuckman, without Dr. Turnbull present, and that afterwards the department heads would meet with Dr. Turnbull to "decide where to go from there." (T.231) After the Tuesday meeting, Dr. Turnbull drafted a memorandum addressed to the faculty of the College of Education. He attached this draft to a memorandum to Dr. Tuckman, dated July 17, 1985. In the memorandum to Dr. Tuckman, he referred to the draft as "a draft cover memorandum," solicited Dr. Tuckman's suggestions with regard to the draft, and stated that he "would also like to see a copy of the 'report' from our Tuesday meeting which we can send out with this cover memorandum." Respondent's Exhibit No. 5. Dr. Tuckman wrote Dr. Turnbull a memorandum, dated July 19, 1985. Labelled "PERSONAL AND CONFIDENTIAL," it is now a matter of public record, and reads, in part: I appreciate the gravity of the situation and the difficulty of the position you are in. I struggled through one or two similar crises myself last year, albeit on the department level, where faculty members were opposed to a chairman, and know how hard that is to deal with. I appreciate the consideration you have shown both me and the faculty of the College. It may not need reiteration but I want you to know that I like my job and I want my job. I think you need to keep in mind: the fact that I have only done what I was "brought here" to do and what I said I would do. I have always been honest and forthright with you and with the faculty. I have never been knowingly devious in any of my dealings. the fact that I "inherited" a college suffering from long-term neglect and one which included a number of people who were taking advantage of that situation and of their colleagues. * * * (4) the fact that relatively unused and "rusty" faculty governance structures were not used by me not by choice but because they could not raise quorums and did not have members who wanted to see them used constructively. They are now ready to be used. I was already putting them in readiness when this whole controversy started. * * * I have been less than perfect. I have made mistakes and I am now aware of many of them. But they were honest mistakes and well- intentioned mistakes. I am neither power- hungry nor malicious. Organizations often need to survive conflict in order to coalesce and grow. The essence of the process is having the members accept some of the responsibility for growth and decision-making. I want this to happen. This crisis can be turned from a nightmare into a blessing by a combination of actions by me and you. My job is to "open up all the doors" and let all of the faculty input in. I pledge to you that I will (and have already begun to) use all informal and formal mechanisms to foster faculty participation and involvement. I believe that I am both willing and able to do this. But it will only work if, as I open my doors, you close yours. You need to let it be known that you are satisfied with the plans and directions of the College, that you have helped make sure it is on course, but that its fate depends on it being able to solve its own problems. And, as you know, those problems are many and serious. And, with that decision to let me continue (after all, I have only had two years to deal with problems and habits formed over at least 10 years) , you must step back from the process and let it continue. ... If you step back, the faculty will realize that they must begin to take faculty governance processes seriously and use them constructively to help get us out of this fix. I want faculty involvement and I can get it. If they have nowhere else to go but to faculty committees, faculty meetings and to me, that's where they'll go. But if they can go to you, Steve or Bernie, they'll go there. I ask you personally, professionally and humbly for your help, both for me and for the College. The biggest help you can provide now is to say to the world, let the College of Education solve its own problems if it wants to stay in business. The rest is up to us. Dr. Turnbull felt this memorandum "was too little, too late," (T.236) and that it advocated "the course [he] followed very consistently up until a couple weeks before that." (T.236) On July 22, 1985, the department chairmen, having earlier met with Dr. Tuckman, as agreed, met with Dr. Turnbull. They reported that Dr. Tuckman "still did not understand the seriousness of the situation, and that they were, therefore, not willing to proceed with him to try to change the faculty's mind about the course and direction of the college." (T.231) Resignation Requested Late that day Dr. Turnbull summoned Dr. Tuckman to his office and requested that he step down as dean. Dr. Tuckman asked if he could think it over overnight, and, on the morning of July 23, 1985, told Dr. Turnbull he "wanted to be able to complete this year and have another year; and that at the end of the next year, if [Dr. Turnbull] was ... dissatisfied with [Dr. Tuckman's] performance, then at that time [Dr. Tuckman] would be willing to resign." (T.62) Dr. Turnbull told Dr. Tuckman he was wasting his breath, that he wanted him "out as dean right away." (T.62) When Dr. Tuckman "pleaded with him," id., Dr. Turnbull reportedly said, "A well-worded letter of resignation would resolve [sic] you of all embarrassment or pain." (T.62) But Dr. Tuckman refused to resign, saying, "[Y]ou will have to fire me." Id. No Longer Dean Believing Dr. Tuckman had been insubordinate, Dr. Turnbull wrote a letter to him the following day. The parties stipulated that Dr. Turnbull had full authority to act for FSU's president in these matters. The letter said: Dear Bruce: Effective immediately, you are relieved of your responsibilities as Dean of the College of Education. An alternative assignment for the 1985-86 academic year will be made as soon as possible. Petitioner's Exhibit No. 15. By memorandum dated July 30, 1985, Dr. Turnbull advised Dean Edwards, "Normal procedures should be followed, except that you will substitute for Dr. Tuckman." Petitioner's Exhibit No. 5. On or after July 24, 1985, but no later than July 30, 1985, Dr. Turnbull had assigned Dean Edwards "responsibility for the administrative affairs of the College of Education during the transition following the reassignment of Dr. Tuckman." Petitioner's Exhibit No. 5. By memoranda dated July 29 and 30, 1985, Respondent's Exhibits Nos. 9- 10, and by letter to Dr. Turnbull dated July 29, 1985, Respondent's Exhibit No. 8, Dr. Tuckman made known his view that he had a right to continue as dean, writing Dr. Turnbull, "I cannot accede to your request that I surrender my position," Respondent's Exhibit No. 8, and signing a memorandum dated July 29, 1985, addressed to department heads and ohers, "Bruce W. Tuckman, Dean." Respondent's Exhibit No. 9. On July 31, 1985, Dr. Turnbull sent a memorandum to Dr. Tuckman, with a "blind copy" to FSU's counsel, in form acquiescing to Dr. Tuckman's assertion that he was still dean. This memorandum stated: RE: Revised Assignment of Responsibilities Pursuant to my July 24, 1985 letter to you and our discussion of July 30, 1985, your complete assignment as dean for the period through the expiration of your current contract (August 31, 1985), is as follows: to develop and prepare a written report on the major policy and program initiatives of the College of Education during your tenure as dean along with a summary of your perception of the goals and objectives encompassed in these policies. to provide written recommendations on priorities among these goals, objectives, and plans to implement them, together with any suggestions for alteration as a result of the necessary reduction in College resources. responding upon request to inquiries from Dean Edwards or other appropriate officials about College of Education matters. (Dean Edwards will be assisting during this transitional period in the administration of the College of Education.) This reassignment is not intended to affect your functions and responsibilities as a faculty member. In the best interests of the University and in furtherance of a smooth transition, I am instructing you to vacate the physical quarters of the Office of Dean no later than the close of business on Friday, August 2. An alternative office will be assigned in the Stone Building. Please contact Dean Edwards concerning alternative office space. The practical reality was, however, that Dr. Tuckman did not serve as Dean of the College of Education after July 24, 1985. In September of 1985, Robert L. Lathrop was named interim dean, and he became "continuing dean in January 1987." (T.289) Academic deans customarily serve at the pleasure of university presidents. By memorandum dated February 4, 1964, (but not shown to petitioner before he signed the employment contract), Gordon W. Blackwell, then FSU's president, "instituted" the policy that "Members of the faculty ... hold administrative positions (... dean ...) at the pleasure of the President." Respondent's Exhibit No. 16. This is the norm in the United States. Witnesses at hearing, including academic deans at FSU, testified that FSU's deans served at the pleasure of FSU's president during the time in question. Dr. Turnbull's letter of July 24, 1985, reflected these views, and ended Dr. Tuckman's service as dean, although Dr. Tuckman stayed on as (and remained, at the time of the hearing) a tenured full professor in the College of Education. He received the full salary he contracted for in September of 1984 during the year ending August 31, 1985. Petitioner's Exhibit No. 13. Faculty vs. Professional Staff The, Board of Regents, which heads the Division of Universities within the Department of Education, has allocated university employees among three distinct "pay plans." The position "dean and professor," like the position "professor," has been assigned to the faculty pay plan, rather than to the administrative and professional pay plan, or to the plan for "University Support Personnel," formerly career service employees. (T.131, 190, 197). Article VII of the Constitution of the Florida State University, entitled "The Professional Staff," provides: Those persons holding academic appointments within The Florida State University, but not within a college or school, and those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with the provisions of the Florida Statutes and the regulations of the Board of Regents. Petitioner's Exhibit No. 17, page 11. Dr. Tuckman first saw this provision in July or August of 1983. (T.86) The text of Article VII, now promulgated as an administrative rule, Rule 6C2-1.004(7), Florida Administrative Code, effective September 30, 1975, has been included in the FSU Constitution since 1959. Similar language may have appeared even earlier as a bylaw, and was originally drafted to authorize conferring faculty rank on librarians. (T.411) As a provision of FSU's Constitution, Article VII is not among the "rules and regulations of the Board of Regents," strictly speaking. By virtue of Article VII or its predecessor, Willis Caldwell, registrar and director of admissions, was given faculty rank, possibly as an associate professor. Catherine Warren, Dean of Women, was "designated as professor," (T.419) under Article VII or its predecessor. Ms. Warren had done graduate work in history at Columbia University, but, like Willis Caldwell, had no academic appointment within a college or school. Article VII was also applied to Robert Pierce, who, as FSU's vice-president for administration from 1972 to 1976 or 1977 (T.417), had no standing in an academic unit. (T.221) It has never been applied to persons who "had faculty status in an academic unit or with tenure." (T.224) When administrators teach, "it's considered part of their responsibility." (T.415) A faculty member who forgoes teaching for research does not, on that account, lose his status as a member of the faculty and become a member of the professional staff. FSU's president, or his designee, has broad authority in assigning administrative responsibilities to FSU's deans, but they are not professional staff, if they have faculty appointments, even if they do not teach. Article VI of the Constitution of Florida State University, Rule 6C2- 1.004(6), Florida Administrative Code, deals at length with faculty members, employees who, like petitioner, have academic appointments. As dean and professor since his arrival at FSU, Dr. Tuckman has had faculty rank all that time. He has enjoyed membership in the General Faculty by virtue of his professorial rank, and has never been a member of the professional staff. Article VII has no application in his case, and was not incorporated by reference in the employment contracts Dr. Tuckman signed.
Recommendation That FSU enter a final order in Case No. 86-2483 declaring the parties' 1984-1985 employment contract, Petitioner's Exhibit No. 13, breached, effective July 24, 1985, but denying further relief in Case No. 86-2483. DONE and ENTERED this 11th day of June, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2483 Petitioner's proposed findings of fact Nos. 1 through 17, 20, 22, and 24 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. IS has only been adopted to the extent indicated by reference to petitioner's remaining proposed findings of fact. With reference to petitioner's proposed finding of fact No. 19, the FSU Constitution has been adopted as an administrative rule, now numbered Rule 6C- 1.004, Florida Administrative Code. With reference to petitioner's proposed finding of fact No. 21, Dr. Tuckman saw Article VII in July or August of 1983. The evidence did not show that he relied in fact on Article VII. Petitioner's proposed findings of fact Nos. 23 and 25 were not established by the weight of the evidence. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 18, 19, 21, 22, and 24 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, Rule 6C2- 1.004(3)(a), Florida Administrative Code, makes clear that Article VII can confer membership in the general faculty. With respect to respondent's proposed findings of fact Nos. 6 and 7, FSU contracted in September of 1984 for Dr. Tuckman's services as "dean and professor," not only for his services as a professor. Although deans ordinarily hold professorial rank, there is a difference between being dean and being simply a professor. In executing Petitioner's Exhibit No. 13, the parties agreed that Dr. Tuckman would serve as dean through August 31, 1985. With respect to respondent's proposed finding of fact No. 11, the evidence supports every sentence but the antepenultimate, which is partially an erroneous conclusion of law. The evidence did not show that an FSU vice-president had ever before unilaterally removed a dean, although there was testimony that Robert Lawton had been asked for his resignation. (T. 220) Respondent's proposed finding of fact No. 15 has been adopted, in substance, insofar as material, except that the evidence was that Dr. Tuckman had appointed three quarters of the Administrative Council, not three quarters of the department heads. With respect to respondent's proposed finding of fact No. 17, the number was $6,056. Only the first sentence in respondent's proposed finding of fact No. 20 has been adopted as established by the weight of the competent evidence. The first two sentences in respondent's proposed finding of fact No. 23 were established by the evidence. On July 24, 1985, Dr. Tuckman was relieved of his responsibilities as dean. Thereafter, Dr. Edwards acted de facto as Dean of the College of Education. With respect to respondent's proposed finding of fact No. 25, the evidence showed that Dr. Turnbull set out to do what he thought was best for the university without any ulterior motive, but the evidence did not show that Dr. Tuckman had breached the employment agreement or that anything else had relieved FSU of its legal obligations under the agreement. COPIES FURNISHED: President Bernard Sliger Florida State University Tallahassee, Florida Gerald B. Jaski, Esquire Linda C. Schmidt, Esquire Florida State University 311 Hecht House Tallahassee, Florida 32306 Stephen Marc Slepin, Esquire Slepin & Slepin 1114 East Park Avenue Tallahassee, Florida 32301 =================================================================
Findings Of Fact This proceeding arises from a petition filed pursuant to Section 120.54, Florida Statutes, that challenges the validity of Proposed Rule 6C2- 5.0021. STIPULATED FACTS Findings contained in paragraphs 2-9 were stipulated by the parties, and with minor editorial changes, are set forth as follows: Petitioner is Douglas A. Charity, a former doctoral graduate student in the Department of Economics at Florida State University. The parties have stipulated to Petitioner's standing to bring this action. Respondent is Florida State University. Respondent began a review of academic rules during 1992. By memorandum dated December 10, 1992, Steve Edwards, Dean of the Faculties, wrote to all Academic Deans on the subject of academic rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to the repeal of the academic rules and the incorporation of the University bulletin by reference. Attached to Dean Edward's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters proposed to be repealed. An additional attachment to Dean Edwards' memorandum is a "Notice of Proposed Rule Amendment (Repeal)." [T]he memorandum provides [t]he purpose and effect of the proposed rule is: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. (Prehearing Stipulation paragraph 20). On April 1, 1992, Gerald B. Jaski [Respondent's General Counsel] wrote a memorandum on the subject of Administrative Rule Revisions to Dr. Robert B. Glidden, Provost and Vice President for Academic Affairs, and Dr. Steve Edwards, Dean of the Faculties. In this memorandum, Mr. Jaski states "Dean Elizabeth Muhlenfeld and Dr. Pete Metarko have suggested rule revisions which will greatly streamline the university rule scheme. According to Dr. Metarko, Mr. Carraway has been consulted and concurs with the suggestion." Mr. Jaski's memorandum also refers to the specific rules to be repealed and provides that rule 6C2- 5.002 will be amended to adopt by reference the General Bulletin, the Graduate Bulletin and the Florida State University Bulletin: Directory of Classes. Attached to Mr. Jaski's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters, proposed to be repealed. An additional attachment to Mr. Jaski's memorandum is a "Notice of Proposed Rule Amendment (Repeal)". The purpose and effect of the proposed rule is provided as: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. The summary of this attachment provides that: The repeals shall be accommodated by the simul- taneous amendment of 6C2-5.002, Florida Adminis- trative Code, adopting by reference the university bulletin series. The various bulletins cover all subject matter presently addressed in the rules which are being repealed. (Prehearing Stipulation paragraph 21). By memorandums dated February 7, and 14, 1994, Gerald B. Jaski, advised the University President, Provost and various Vice Presidents on an update of the FSU Rule proposal. Mr. Jaski's memorandum of February 7, 1994, contained attachments titled "The Rulemaking Process Summary," "Document Requirements For Rulemaking," "Rulemaking Time Line," and "JAPC Checklist." (Prehearing Stipulation paragraph 22). By memorandum dated March 31, 1994, Gerald B. Jaski and Bjarne Andersen wrote to various academic program administrators, such as Dr. Charles F. Cnudde, Dean of the College of Social Sciences, on the subject of University FAC Rule update. This memorandum requested the administrators to review their rules currently published in the Florida Administrative Code as part of the process of repealing academic rules in the F.A.C. and incorporating the university catalogs and bulletins by reference. (Prehearing Stipulation paragraph 23). By memorandum dated April 8, 1994, Dean of the Faculties Steve Edwards wrote to Academic Deans on the subject of Academic Rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to his previous memorandum of December 10, 1992, on the same subject and requests a response to whether the Academic Deans object to repealing their applicable rules in the Florida Administrative Code and incorporating them by reference in the University Bulletin. (Prehearing Stipulation paragraph 24). Proposed rule 6C2-5.0021 repeals some of the current rules in Rule Chapter 6C2-5 - Academic matters, which rules contain university curricula, and other rules which contain admission/readmission requirements and procedures, graduation requirements, retention requirements, etc. The proposed rule additionally provides for incorporation by reference of University Catalogs and Bulletins and other various publications which "establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the university, and other matters of educational delivery." (Prehearing Stipulation paragraph 26). OTHER FACTS The proposed rule reads: 6C2-5.0021 Academic and Curriculum Information; Course Offerings, University Bulletins, Catalogs, and Applications In addition to the adopted Florida State University administrative and operational rules published in the Florida Administrative Code pursuant to Florida Statutes, Chapter 120, the University publishes the following listed documents that are incorporated herein by reference which establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the University, and other matters of educational delivery: Florida State University General Bulletin, 1994/1995. Florida State University General Bulletin, Graduate Edition 1993/1995. The Florida State University College of Law 1994-1995, Catalogue & Application. Study Abroad Programs. Florence Study Center Course Descriptions, Fall Semester 1994 and Spring Semester 1995. London Program Course Description, Fall Semester 1994 and spring Semester 1995. Costa Rica Program Course Description and Meeting times, Summer 1994 Information Guide to the Florida State University Panama Canal Branch, with the 1994- 1995 Academic Calendar FSU Panama Canal Branch. Those portions of the University Bulletins or Catalogs, which are not included in, or addressed by, a specific University rule as published in the Florida Administrative Code, have the force and effect of a rule by the incorporation of the text of the documents listed herein. In the event of a conflict or an inconsistency between any provisions of a Bulletin or Catalog and any adopted rule of Florida State University as published in the Florida Administrative Code, such published rules of the University shall prevail. The Bulletins and Catalogs of the University may also contain the academic calendar as set by the Florida State University within the general guidelines of the Board of Regents. Copies of the catalogs or bulletins can be obtained from the Florida State University, Office of the Registrar, Tallahassee, Florida 32306-1011. The University utilizes the following referenced application forms which may be obtained from the Florida State University, Office of Admissions, Tallahassee, Florida 32306-1009, for admission consideration to Florida State University: The "Application for Admission, State University System of Florida, Entering Freshman or Undergraduate Transfer" and instructional information contained therein (Revised 1993). See BOR rules 6C-1.012, F.A.C. The "Application for Admission to a Graduate Program, Florida State University" (Eff. 8/94), including instructions. "Application for Admission as an Inter- national Student to Florida State University" (Revised 4/93), with the accompanying forms "Confidential Report on International Applicant" (3/92) and "Confidential Financial Statement" (3/92) including instructions and the attached document entitled "International Student Inform- ation 1993/1994." Study Abroad Programs, Application for Admission (Florence, London, or Costa Rica), Form SAPA-00l (Eff. 9/94). The University bulletins and catalogs shall have prospective effect only. A student entering an academic program of the University before the published catalog date, when requirements for degree programs where different from those under newer incorporated Bulletin catalog dates may elect to remain under the earlier requirements for such a program if the pursuit of such degree or program requirements are continuous. Curriculum of the institution and academic policies and procedures of a particular school, college, department or division, including among other academic subjects admission, registrations, withdrawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State Univer- sity Bulletins, or Catalogs, and informational documents such as term or semester class schedules, the student handbook or the faculty handbook and all such other similar type documents which repre- sent a means to notice the flexible nature of the current curriculum, educational plans, offerings, and requirements which may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provi- sion, offering, or requirement at any time within the student's period or study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. Pursuant to Section 240.227(1), Florida Statutes, Respondent has the authority, through the President of Florida State University, to promulgate rules for the operation and administration of the University. Section 240.227(1), Florida Statutes, provides in pertinent part that each university president shall: Develop and adopt rules governing the operation and administration of the university. Such rules shall be consistent with the mission of the uni- versity and statewide rules and policies and shall assist in the development of the university in a manner which will complement the missions and activities of the other universities for the overall purpose of achieving the highest quality of education for the citizens of the state. Respondent agrees that the phrase "and all such other similar type documents which represent a means to notice" contained in subparagraph (7) of the proposed rule is vague. Respondent has filed a notice of change regarding subparagraph (7) which is now proposed to read as follows: Curriculum of the institution and academic policies and procedures of a particular schools, college, department or division, including among other academic subjects admission, registration, with- drawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State University Bulletins, or Catalogs, and informational documents such as term or semester faculty handbook, all such other similar type documents which represent a means to notice the flexible nature of those referenced in paragraph (1) of this rule. These documents reflect the current curriculum, educational plans, offerings, and requirements which and may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provision, offering, or requirement at any time within the student's period of study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. With the exception of Respondent's admission to the vagueness of subsection (7) of the rule as originally proposed, no evidence has been presented, and accordingly no finding can be made, that the proposed rule exceeds the grant of rule-making authority contained in Section 240.227(1), Florida Statutes; or that the proposed rule enlarges, modifies or contravenes specific provisions of law implemented. The evidence presented, other than the change proposed and acknowledged by Respondent to resolve the ambiguities contained in subsection (7), does not provide a basis for a finding that proposed rule 6C2-5.0021 fails to establish adequate standards for agency decisions or vests unbridled discretion in the agency. In the absence of evidence that proposed rule 6C2-5.0021 is not supported by facts or logic, or that Respondent seeks to promulgate this rule without thought or reason, no finding of the proposed rule's infirmity on that basis may be made. The proposed rule, with consideration given the change noticed by Respondent for subparagraph (7), is not arbitrary or capricious.
