Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioners are inmates incarcerated at Baker and Zephyrhills Correctional institutions. The proposed ruled, Rule 33-3.0055, entitled "Law Libraries," is intended to provide guidelines for the operation of institutional law libraries and the use of inmate law clerks by those incarcerated within the facility. Petitioners currently use and, in the future, will require the use of law library facilities. Petitioners law library needs require access to federal as well as state reference materials. The subject matter of the reference materials required runs the legal gamut: administrative, civil and criminal. Accordingly, they will be substantially affected by the implementation of the proposed rule by the Department. The challenged proposed rule is divided into five categories [the fifth category is erroneously numbered (4)]. Those categories are: general provisions; law library access; content of law libraries; inmate law clerks; and law library advisory council. The general provisions category of the proposed rule acknowledges that the Department is to provide adequate access to the courts and to legal materials for inmates in the custody of the Department. That section further instructs each institution with a law library to develop operating procedures regulating the operation of the law library. Thus, the rule delegates to the facility superintendents the responsibility of coordinating all operations related to the law libraries and of training personnel and inmate staff who are to carry out that operation. This section does not identify which institutions will have libraries. The second section of the proposed rule, law library access, directs the superintendent of an institution to establish library hours and schedules to permit each inmate "maximum access" to legal materials consistent with that facility's security. That section provides no guidelines or minimum criteria outlining what the Department deems adequate to provide such "maximum access." Subsection (b) states that inmates in administrative or disciplinary confinement need not be taken to the library if that would create a security or safety risk but does not provide sufficient guidelines for how the facility might arrange to have materials made available to such inmates. Frequently, inmates are unaware of what materials are needed for reference and are unaware of procedural rules related to their cases. Inmates relying on materials furnished by inexperienced law clerks have missed court deadlines, have filed inadequate documents, or have had to request extensions in order to comply with deadlines. The content of the law libraries is addressed in section (3) of the proposed rule. That section provides that institutions will have "major, minor, and starter collection" law libraries based upon their size, location, inmate need and mission. The proposed rule does not describe which institution will receive which collection nor does it explain how inmate need and mission relate to the location, size or content of a facility's library. Inmates incarcerated at Baker require access to federal and state reference materials. Whether the library at Baker will contain those materials in the future is unknown. Currently, inmates at Baker must request copies of cases not available at Baker from other institutions which may or may not have same. Delays in obtaining and copying reference materials inhibit inmates from timely filing court documents. The proposed rule provides that inmate law clerks shall be assigned to assist inmates in the research and use of legal materials. That section does not provide for minimum training of such clerks nor does it address how inmates are to be assisted when the "first-come, first-serve" basis is inadequate to meet court imposed or procedural deadlines. Moreover, the proposed rule does not address what training, if any, institution personnel will have in order to assist inmate law clerks to provide appropriate guidance. Previously, and at the time this proposed rule was promulgated, the operation of library programs at Baker and other institutions fell under the authority of the Correctional Education School Authority (CESA). Budget cuts within the CESA resulted in the elimination of a librarian position at the Baker facility. In order to keep the library open, a correction officer has been assigned to supervise the library. Consequently, the library facility is available during that individual's work shift. Chapter 91-281, Laws of Florida, amended Section 20.315, Florida Statutes, to authorize the Department to provide library services. Institutional Operating Procedures (IOP) govern the operation of the law library at Baker. Staffing and operation of the library is left to the discretion of the officer opening and closing the facility. The library at Baker is not subject to a minimum number of hours of operation. Law clerks at Baker have assisted inmates in administrative, disciplinary, or protective confinement when those inmates had a deadline provided such inmate could prove they had such deadline. Inmates are often unaware of procedural deadlines until such deadlines have passed. Both Mr. Cook and Mr. O'Brian requested clarifications from the Department's legal office regarding how the proposed rule would be implemented at Baker to resolve issues related to the operation of the law library but received no responses. Staff at Baker have had no legal training and are unfamiliar with how to conduct legal research. Consequently, inmates are left to their own resources and frequently use inmate law clerks who have become self-trained from working on their own cases. At Marion Correctional Institution (Marion) inmates are afforded additional services in connection with the law library. Access to typewriters and copy machines are available so that inmates may complete documents related to their cases. The law library at Marion receives requests each month from inmates at other facilities who are seeking legal assistance or copies of cases not available at their institutions. Like inmates in a confined status, inmates assigned to work camps do not have direct access to legal materials. Such inmates must request materials and legal assistance from adjacent facilities. In one instance, an inmate was required to file a grievance before access to legal materials was granted. Inmates who have requested legal reference materials from other correctional institutions have waited as long as six months to receive responses from a request. At Baker, inmates have had to forego educational opportunities in order to have access to the law library during its hours of operation when class schedules conflicted with law library hours. The Department has considered the proposed rule over a period of six to seven years since the litigation of the Hooks v. Wainwright decision began. Problems arise between inmates when law clerks show favoritism toward one inmate over another inmate. Thus, it is appropriate to devise a system to place all inmates on notice of how inmate law clerks are to prioritize their time and assistance.
Findings Of Fact During the 1991/1992 school year, the Respondent, Patricia Albritton, was teaching in the Pinellas County Public School System under an annual Professional Service Contract, renewable from year to year as determined by the School Board. She was an "itinerant teacher," meaning she had classroom assignments at various schools. Her base school was Azalea Middle School, where she taught a strings orchestra class at 1:30 p.m., and then had a teacher planning period before end of the school day dismissal. On March 18, 1992, shortly after the bell rang for the beginning of the strings class at Azalea Middle School, the Respondent entered the class and, in preparation for the class, requested that the pupils rearrange the chairs in semi-circles to simulate the seating arrangement for an upcoming concert. The class was noisy, and many of the pupils either did not hear or ignored her instructions despite her having raised her voice to get their attention. Frustrated and angry, the Respondent picked up a wooden chair to almost face level and slammed it to the floor. In the process, she lost her grip on the chair, and it slammed to the floor with enough force for one leg of the chair to crack. She then asked the class a question to the effect of, "do I have to do cartwheels to get your attention?" As she turned away from the class, perhaps in response to a pupil's question as to why the class was being required to give a concert performance, the Respondent also mumbled to herself, but in a voice loud enough for some of the pupils to hear: "I'm getting so tired of this damn class." After this incident, the Respondent either set the chair to the side or put it in the adjoining supply room where the Respondent generally stored music stands. One or more of the pupils who tended to be the class troublemakers, or clowns, retrieved the broken chair, and one of them purposely sat on it and appeared to fake falling to the floor. The fall did not appear to be of the kind likely to have injured the pupil in any serious way. Nonetheless, the pupil complained that his head hurt and asked for permission to go to the clinic. The Respondent, who had observed the apparent fakery and knew the propensities of the pupil involved, declined permission, believing it was yet another in a series of ploys to get out of class. She said something to the effect of, "you were stupid to sit on the broken chair." When the pupil persisted in saying his head hurt, the Respondent mocked him, saying words to the effect, "oh, you poor baby." After the incident, the parents of the pupil who tried to fake falling in the broken chair became upset with the Respondent and took their son out of the Respondent's strings class. Two other parents expressed concern, primarily about the Respondent's angry outburst and throwing the chair. Otherwise, there was no evidence that the Respondent's effectiveness as an employee of the School Board was impaired as a result of the incident. She had no difficulties at any of the other schools where she taught. The Respondent has been a teacher in the Pinellas County School System for ten years. Aside from some criticism for being tardy in 1986, the Respondent generally was not seriously criticized for deficiencies in her teaching ability or other aspects of her work in the earlier years of her teaching career. On November 10 and December 4, 1989, the Respondent received written reprimands for poor judgment. The former reprimand included criticism for using inappropriate language loud enough for her pupils to hear her. Her performance evaluation for the 1990/1991 school year included criticism in the areas of judgment and interpersonal relationships with parents and children, and it expressed the need for improvement in those areas. At the beginning of the 1991/1992 school year, the Respondent was put on an annual comprehensive evaluation cycle. An October 23, 1991, appraisal of her instructional performance in a pre-arranged visit to her class by the assistant principal reflected that the Respondent was satisfactory in all areas. In mid-January, 1992, the Respondent grabbed a pupil at Azalea Middle School (the same boy who later faked falling in the broken chair) by the shoulders and shook him to get his attention. As a result, the Respondent's assistant principal cautioned the Respondent to exercise better judgment and, in keeping with School Board policy, to keep her hands off pupils she is reprimanding. A March 5, 1992, appraisal of her performance in non-instructional areas reflected improvement in that her judgment was rated satisfactory. After the March 18, 1992, incident, her rating for management of student conduct again was lowered to "needs improvement."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order that, notwithstanding evidence of poor judgment, as set above, the Respondent, Patricia Albritton, not be suspended for three days without pay. RECOMMENDED this 4th day of November, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 4th day of November, 1992.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Petitioners are actively involved in numerous litigated matters before both state agencies and the courts. As such, they frequently use the law library at Union Correctional Institution. On or about May 17, 1983, the Secretary of the Department of Corrections issued a revision to Policy and Procedures Directive 4.10.51, which had originally been issued on June 21, 1979. This document, which has not been formally adopted as a "rule," purports to be issued pursuant to the authority contained in Section 945.21, Florida Statutes, and Rule 33-3.05, Florida Administrative Code. This directive applies statewide to the maintenance and operation of law libraries located within the facilities operated by the Department of Corrections. The directive establishes the location of "major" and "minor" law libraries in various correctional facilities. In addition, it defines certain terms and lists the types of legal materials to be maintained in "major" and "minor" libraries. The document establishes duties and responsibilities of the superintendent of each correctional facility maintaining a law library, as well as establishing the duties of the law librarian, inmate law clerks, inmate typists, the coordinator of law libraries, and inmates utilizing the facilities. The directive specifies the types of equipment to be maintained in the facilities and establishes guidelines concerning duplication of library materials by inmates. The directive further establishes the permissible scope of activities by law clerks in assisting inmates with legal research, and further reestablishes control on the use of telephone communications by inmates in connection with pending legal matters. Finally, the directive establishes a Law Library Advisory Council, provides for composition of the membership of that council, and empowers the council to make recommendations to the Secretary of the Department of Corrections concerning library services. On May 4, 1983, Union Correctional Institution, without formal rulemaking proceedings, issued the following Interoffice Memorandum addressed to the Main Housing Unit Staff and Inmates, concerning the law library at Union Correctional Institution: Effective inmediately, all Main Housing Unit Inmates wishing to use the Law Library, will obtain a Pass (Call-out) from their Floor Officer. The Floor Officermay let three (3) Inmates off his floor, go to the Law Library, no more. As these Inmates return, other Inmates may obtain a Pass to the Law Library. The Inmates will be limited to more than a two (2) hour stay in the Law Library, on each Pass. This should give everyone reasonable access to the Law Library. At 4:00 P.M., Officers will cease writing Passes to the Law Library Inmates wishing to use the Law Library after 4:00 P.M., must place their names on a list prepared at the Main Housing Unit Office. At 6:00 P.M., these inmates will be escorted to the Law Library by an Officer. At approximately 8:00 P.M., or when the Law Library closes, the Inmates will he escorted back to the Main Housing Unit by an Officer. The only exception to the above procedures, will be inmates who provide evidence of a deadline on their case or other legal materials. Any Inmate who checks out to the Law Library and is found in another area of the Institution, will be subject to Disciplinary Action. These procedures also apply to weekends and Holidays. This Memorandum becomes Institutional Policy, and compliance is expected. At the time of final hearing in this cause, there were approximately 2,600 inmates located in Union Correctional Institution. The seating capacity of the UCI law library is approximate1y thirty inmates, and the library is often crowded.
The Issue Does the challenged language contained in the Academic Policy Statement Handbook constitute "curricula" so as to be exempt from rule-making pursuant to Section 120.81(1)(a), Florida Statutes [1996 Supp.]? Is Petitioner entitled to a de novo hearing on the merits of her dismissal from the University pursuant to Section 120.57(1) Florida Statutes in light of the provisions of Section 120.81(1)(f) Florida Statutes?
Findings Of Fact Petitioner was enrolled in Florida Agricultural and Mechanical University's College of Pharmacy and Pharmaceutical Sciences. On December 18, 1996, Petitioner was dismissed from the pharmacy program by a letter from the Dean of the College which stated, in pertinent part, After reviewing your academic record and the recommendation of the Admission and Academic Standards Committee, I must inform you that you are being dismissed from the College of Pharmacy. Please be advised that further request for readmission will not be considered. Because pharmacy is a career directed toward the safeguarding of community health, it also is a demanding career. We must insist that our students meet the academic challenges of the College of Pharmacy so that they will be well prepared to meet the challenge of a dynamic health care system. (Emphasis in original) [See, Exhibit to the First Amended Petition] Count I of the First Amended Petition challenges "Academic Policy Statement Handbook, Section 2 Dismissal", found on pages 9 and 10 of the publication. (See, Paragraph 5 of the First Amended Petition) The full title of this handbook is "Florida Agricultural and Mechanical University Academic Policy Handbook for BS and PharmD Students." The "Disclaimer" on page one of the Handbook makes clear that the Handbook is, ". . .for information purposes only and should not be construed as the basis of a contract between the student and the FAMU College of Pharmacy and Pharmaceutical Services . . ., the College reserves the right to change any provision listed, including but not limited to academic requirements for graduation, . . . it is especially important that each student note that it is his/her responsibility to keep himself/herself apprised of current graduation requirements by regular consultation with his/her advisor." The portion of the Handbook specifically challenged by Count I of the First Amended Petition provides as follows: ACADEMIC POLICY STATEMENT The Florida Agricultural and Mechanical University (FAMU) College of Pharmacy and Pharmaceutical Sciences (the College) has a responsibility to prepare students to enter the practice of pharmacy with competencies demanded by his/her role in health care. Further, the College serves to provide breadth and depth of scientific and professional background so as to allow versatility of practice within the subsystems of pharmacy. Students must make a commitment to their chosen profession by making those sacrifices necessary to insure academic success in their course of study. Being admitted to the College comes with the understanding that excellence in academic performance is expected. Failure to maintain academic performance will result in some action by the appropriate College of Pharmacy Committee. **It should be further understood that failing a course will usually result in the suspension of the student's program due to the structure of the curriculum and the associated prerequisite requirements in addition to any academic sanctions that may be imposed. The curriculum is designed to be followed from a course prerequisite standpoint while maintaining the integrity of the courses based on the year offered in the curriculum (i.e. 3rd year courses must be completed before entering 4th year courses, etc.). In addition to University Academic Regulations, the following rules will be used to provide for the immediate intervention of the Admissions and Academic Standards (A&AS) Committee. Additionally, the A&AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. ProbationA student will be placed on academic probation if EITHER of the following occurs:Two or more D's in any course work in any semesterFailure of a professional courseA G.P.A. less than 2.0 in any semester. While on academic probation, the student will be required to meet with his/her advisor to determine what steps are needed to increase the student's academic performance. The student will be expected to adhere to the plan worked out with the student's advisor. The advisor will inform the A&AS Committee of the student's compliance and progress. **A "C" grade or better is required for passing all pharmacy courses.Probation will be lifted when BOTH of the following occur:A G.P.A. above 2.00No additional D's or F's DismissalA student may be dismissed from the program under provisions set by the A&AS Committee if EITHER of the following occurs:Two or more failures in one semesterA total of three failures in professionalcourses semester A G.P.A. less than 2.00 for the thirdThe student will be required to attend ALL professional courses in the semester in which he/she is retaking courses.The A&AS Committee will review every case separately and reserves the right to determine the provisions for each individual situation.The A&AS Committee will define the conditions for readmission for each individual student. DismissalA student will be dismissed from the program if EITHER of the following occurs:The fifth failure in professional coursesThe fifth failure in non-professionalcoursesThree failures in professional courses inone semesterThe second failure of a single courseThe student is eligible to reapply and be considered for admission one year after studies in the College have been discontinued. It is the student's responsibility to ask to be withdrawn from a course in a timely manner. Failure to seek counseling or guidance in a situation that negatively impacts his academic performance will not be used as cause to prevent the imposition of the appropriate academic penalty. (Emphasis in original) [See, Paragraph 5 of the First Amended Petition and Exhibit attached thereto] In her Supplementary Response to the Motion to Dismiss the First Amended Petition, Petitioner conceded that "No doubt the major text of the 'ACADEMIC POLICY STATEMENT' challenged, constitutes 'curriculum' which is exempt from rulemaking under Florida Law." The thrust of her challenge was then directed to the fifth paragraph on page 9 of the Handbook which reads, Additionally, the A & AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. Petitioner further argued that she "contends that it is not what the challenged agency statement says . . . but what is not specifically in that text. The statement granted the A&AS Committee authority to take action against the Petitioner to preserve the 'academic integrity of the College,' but the text did not state what grounds that action must be based upon or what reasons are needed to take such action." Petitioner ultimately argued that she is "not challenging the 'curricula' use of the challenged statement to judge academic standards, but the use of the statement for other purposes as used against her." [See Petitioner's Supplementary Response to Respondent's Motion to Dismiss]. However, Petitioner conceded in the March 7, 1997 oral argument that she had no idea what those "other purposes" (also referred to as "discipline" or "other or secret agenda" in oral argument) might be, if any. Count II of the First Amended Petition adds anew a petition for a de novo review of the action of the Dean in dismissing Petitioner from the College of Pharmacy and Pharmaceutical Services. See, Finding of Fact 2, above.
The Issue Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her. The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.
Findings Of Fact Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions. Ms. Jones received her first personnel rating on March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to her chronic tardiness. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and she refused a transfer to a less physically-demanding position at the circulation desk. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines. Ms. Jones alleged that the head of circulation, Wendi Jo Bost, harassed and belittled her on account of her race and physical condition. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia, except an inability to be out in the sun.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998. COPIES FURNISHED: Aundra Jones, pro se 510 Auburn Avenue Altamonte Springs, Florida 32714 Mary Wills, Esquire 255 South Orange Avenue Suite 801 Orlando, Florida 32801-3452 Susan K. McKenna, Esquire Garwood, McKenna, McKenna & Wolf, P.A. 31 North Garland Avenue Orlando, Florida 32801 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082
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.
The Issue Whether Rule 33-3.012, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Section 944.09, Florida Statutes, requires that the Respondent, the Department of Corrections, adopted rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09(1), Florida Statutes, requires that rules be adopted governing operation and management of correctional institutions and mail to and from the state correctional system. Section 944.11, Florida Statutes, requires: The department shall adopt such regulations as it may deem proper governing the admission of educational and other reading matter within the state institutions for the use of the prisoners, and for the proper observance of days of religious significance within the institutions and for the proper instruction of the prisoners in their basic moral and religious duties. Rule 33-3.012(2)(a) and (b), Florida Administrative Code, provide the following: (2)(a) The amount of reading material, including books, periodicals and other publications that an inmate may store at any one time within his personal living area will be limited to that amount that can be stored without creating a fire, safety, security, or sanitation hazard as determined by the Superintendent. No inmate shall be allowed to receive a book or other publication if he does not have sufficient space to store it. (b) Inmates may subscribe to no more than one daily or weekly newspaper and four other periodicals. The Petitioner, Daniel L. Herrick, has been allowed to receive one newspaper. Pursuant to Rule 33-3.012(2)(a) and (b), Florida Administrative Code, Petitioner was not allowed to receive another newspaper he requested. The typical cell at Charlotte Correctional Institution is ten feet six inches by six feet, eight and one-half inches. Two inmates are housed in each cell. There are also two dorms which house 64 inmates each. A dorm is forty feet, eight inches by seventy-one inches. Each inmate in a dorm has a bed and a locker. The amount of reading materials inmates are allowed to keep is limited because of the limited space in which inmates are housed. Limiting the amount of reading material an inmate may have reduces fire and sanitation hazards. The weight of the evidence failed to prove that Rule 33-3.012(2)(a) or (b), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. Rule 33-3.012(2)(d), Florida Administrative Code, provides: (d) Decisions of the Superintendent or his designee based solely on the provisions of this subsection shall be final and subject to review only through the inmate grievance procedure. Books, periodicals or other publications shall be sent directly from the publishers to the inmate unless otherwise approved by the superintendent. [Emphasis added]. Books are available to inmates through each institution's library and the State Library of Florida Inmates Library Network, which gives inmates access to most public libraries in Florida, including those at State universities. Inmates may also acquire and receive their own books. The types of books available to inmates is limited by the Respondent's Policy and Procedure Directive 4.10.50, Admissible Reading Material (hereinafter referred to as "PPD 4.10.50"). PPD 4.10.50 was not challenged by the Petitioner in this proceeding. PPD 4.10.50 III. A., governs the types of books an inmate can have access to: It is the policy of the Department to allow inmates access to a sufficient amount of constructive and beneficial reading material. Reading material to which inmates have access must be non-subversive in nature as defined by the criteria below, and not compromise the safety or security of the institution, its inmates or staff. Any publication shall be disapproved and may not be received by inmates if it: Is obscene or contains graphic presentation of sexual behavior that is in violation of the law, Concerns plans for violation of law or Department or institution rules, Is dangerously inflammatory in that it advocates or encourages riot, insurrection, escape, disruption of the institution, violence or violation of law or Department or institution rule, the violation of which would present a serious threat to the security, order or rehabilitative objectives of the institution, Contains information which inmates might use to manufacture or devise weapons, drugs, intoxicants, or escape paraphernalia, or to effect or facilitate escape or disruption of the institution, or Otherwise presents a clear and substantial threat to the security, order, or rehabilitative objectives of the Correctional System, or to the safety of any person. Decisions applying the above criteria are to be provided in writing to an inmate and may be appealed to a Library Services Council, which is established by PPD 4.10.50. Responsibility for determining whether a book meets the criteria of PPD 4.10.50 has been delegated for Charlotte Correctional Institution to Henry P. Ziegler, a librarian with the Respondent and the chairman of the Library Services Council. Mr. Ziegler always follows the criteria of PPD 4.10.50 in determining whether an inmate should be allowed to have a particular book. Books may be received by an inmate only from a publisher or bookstore for security reasons. It is easier to determine that books received from a publisher or bookstore are what they purport to be. The challenged rule also allows the Superintendent to approve the receipt of books from other sources. The Petitioner presented evidence concerning two books which he had requested permission to receive but was denied. According to the Petitioner, the denial was based upon the subject matter of the books and the fact that they were not being sent from a publisher or bookstore. This evidence may be appropriate for a grievance proceeding concerning the application of the challenged rule. This evidence did not prove, however, that the challenged rule is inconsistent with statutory law or that it is arbitrary and capricious. The weight of the evidence failed to prove that Rule 33-3.012(2)(d), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. Rule 33-3.012(4)(a), Florida Administrative Code, provides: (4)(a) There shall be an Approved Periodical List established by the Secretary and amended from time to time upon recommendations by the [Library Services] Council. An inmate may subscribe to and receive only those periodicals on such Approved List. The Approved List shall be published at least annually and posted in institution libraries or otherwise made available to inmates. Any additions or deletions made between publications shall be likewise posted or made available. Rule 33-3.012(4), Florida Administrative Code, and PPD 4.10.50 provide procedures which are to followed by an inmate who desires to have a periodical added to the Approved Periodical List. The current Approved Periodical List authorizes inmates to receive almost 1,000 periodicals. Any inmate can request that a periodical not currently on the Approved Periodical List be added to the list. Any such request is reviewed by the Library Services Council. The Library Services Council reviews requested periodicals pursuant to the criteria of PPD 4.10.50. The Library Services Council then recommends to the Secretary of the Respondent whether the periodical should be placed on the Approved Periodical List and the Secretary makes the final decision. The weight of the evidence failed to prove that Rule 33-3.012(4)(a), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. At all times relevant to this proceeding, the Petitioner was incarcerated and under the custody of the Respondent.
Findings Of Fact During the 1986-87 school year Respondent William De La Torre was a student in the seventh grade at West Miami Junior High School. On September 25, 1986, a Student Case Management Referral Form was processed regarding Respondent due to his excessive number of absences. On January 22, 1987, another Student Case Management Referral Form was processed by Respondent's reading teacher due to Respondent's excessive tardiness, refusal to serve detentions, being very disrespectful to the teacher, and screaming, talking, and playing during class. It was noted on the form that the only time that Respondent behaves is when he is serving an indoor suspension. In that structured environment, Respondent does his work well. Respondent's mother was contacted regarding his behavior. On April 8, 1987, another Student Case Management Referral Form was processed by Respondent's reading teacher because Respondent refused to stay in his seat. Respondent had also brought "dirty pictures" to class that day and was disrupting the class by showing them to the other students and attempting to show them to the teacher. On April 22, 1987, Respondent's math teacher processed a Student Case Management Referral Form regarding Respondent's behavior. Although Respondent was absent from his math class most of the time, when he was present he was continuously disruptive to the extent that the teacher could not teach the other students. The teacher noted on the form that Respondent worked better in a more structured environment than when he was in a normal classroom settings. On September 8, 1987, Respondent and three other boys were brought to the school by a police officer who had encountered them at the Midway Mall Shopping Center during school hours. A Student Case Management Referral Form was processed due to Respondent's cutting classes on that day. After he was returned to the school by the police officer Respondent cut class that afternoon. A second Student Case Management Referral Form was executed, and Respondent was given an indoor suspension. By that date, Respondent had been absent three days out of the eight days in that school year. On September 9, 1987, Respondent cut class again and was given a two- day indoor suspension. On September 15, 1987, a conference was held with Respondent and his mother at which time a transfer to the opportunity school was discussed. On September 28, 1987, Respondent again cut class. He was placed on "work assignment" which included him spending a day with the school custodian raking leaves and cleaning up in the cafeteria. On October 21, 1987, Respondent again skipped class. He returned to class on the 22nd and was given a two-day in-door suspension after which he left the classroom and did not return. On October 30, 1987, Respondent was seen exiting a vehicle outside the school but he never reported to class. On November 20, 1987, Respondent was seen by a school volunteer using the telephone during class hours without permission. When the volunteer asked him why, Respondent was extremely rude and called the volunteer unflattering names. Respondent's mother was summoned to come to the school to pick up Respondent and take him home for the rest of the day. During the 1986-87 school year Respondent was absent from his math class a total of 55 days. His final grades for the 1986-87 school year consisted of three "Ds" and five "Fs". His effort grades were primarily "3s". Meetings have been held with Respondent's mother during the 1986-87 and 1987-88 school years regarding Respondent's excessive tardiness and excessive absences, to no avail. Individual counseling and dropout counseling have been attempted in an effort to try to find an incentive to get Respondent to stay in school, to no avail. Respondent has been identified as a potential dropout due to his excessive absences and tardiness and due to his repeating the seventh grade during the 1987-88 school year. Respondent's pattern is clear: he frequently cuts class; when he does appear, he disrupts the class and refuses to work in class; the only environment in which Respondent will work is a highly structured environment since he only works when he is serving an indoor suspension. A Child Study Team was convened and met on December 2, 1987. Respondent and his parents failed to attend that meeting. The team recommended that Respondent be transferred to an opportunity school due to Respondent's need for a more structured environment and Respondent's need for more attention than a traditional school can provide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent William De La Torre to the opportunity school program at J. R. E. Lee until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 30th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 30th day of March, 1988. COPIES FURNISHED: Joseph A. Fernandez, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Mr. & Mrs. Roberto De La Torre 9370 West Flagler Street, Unit 110 Miami, Florida 33174 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Is Petitioner entitled to a tax exemption certificate based upon its status as an "educational institution" as defined in Section 212.08(7)(o)2.d, Florida Statutes?
Findings Of Fact Petitioner is a non-profit organization. Its purpose is to identify and improve library resources and services within the Florida Panhandle geographic area. More specifically, Petitioner provides services and information to support interlibrary cooperative activities, that will strengthen resource sharing among libraries in the Panhandle and improve the effectiveness of the member libraries, with the ultimate goal being to facilitate access to library materials by library users. Respondent is an agency of the State of Florida which has the responsibility to consider applications for Consumer Certificates of Exemption from taxation. See Section 212.008(7), Florida Statutes. When Respondent refused to grant Petitioner a Consumer Certificate of Exemption, for reasons stated in its notice of intent, Petitioner challenged that preliminary decision. As indicated in the notice of intent to deny, the reason for denial is as follows: Your organization is not a state tax- supported, parochial, church or nonprofit private school, college or university which conducts regular classes and courses of study required for accreditation by, or membership in, the Southern Association of Colleges and Schools, the Department of Education, the Florida Council of Independent Schools, or the Florida Association of Christian Colleges and Schools, Inc. The purpose of your organization is not to raise funds for schools teaching grades kindergarten through high school, colleges or universities. Your organization is not a state, district, or other governing or administrative office the function of which is to assist or regulate the customary activities of educational organizations and members. Your organization fails to meet the qualifications for exemption from sales and use taxation, as set forth in Section 212.08(7), Florida Statutes. The grounds for denial found in the third and fourth paragraph constitute the remaining dispute between the parties to be resolved. Paragraph three is in relation to language set forth in Section 212.08(7)(o)2.d., Florida Statutes. Petitioner provides its services and support to member organizations who provide library services. The member organizations include university, community college, other college, military, county school district, municipal, county and other governmental public libraries. A list of the members is found in Petitioner's Exhibit one. Petitioner receives funding through grant programs sponsored by federal and state government. Some of the budget for the Petitioner comes from local sources, such as membership dues. The arrangements promoted by the Petitioner create library consortia among the members in Petitioner's network. To become a member the respective libraries have to execute a letter of agreement and be approved by Petitioner's Board of Directors. To maintain the membership, a member library must agree to freely loan materials outside its library, have their records added to the Florida Bibliographic and Serials databases, and to upkeep the library records in the databases. (Reference to serials databases, refers to periodicals available through the member libraries.) The failure to meet those requirements would cause a member library to be dropped from membership. In executing the letter of agreement, the member libraries commit to the following: Abide by the Bylaws and Articles of Incorporation of PLAN. Provide free loan and photocopies of materials consistent both with the policies and procedures prescribed in the PLAN Interlibrary Loan Code, the Florida Library Information Network (FLIN) Manual of Policies, Protocols and Procedures, and with the library's customary lending policies. This service will be provided to PLAN participants. Share machine-readable bibliographic records for inclusion in the PLAN database. This database will be built on OCLC. Libraries with machine-readable records in MARC format agree to permit the loading of those records and the setting of the holdings information in the OCLC database. Conditions for loading those records will be subject to plans developed by the PLAN Board of Directors. Libraries with records in the OCLC database agree to allow their bibliographic and holdings records to be used in off-line products produced from the OCLC database for resource sharing activities of Panhandle libraries. Develop a plan and show evidence of progress in that plan toward (1) converting their records to MARC format, and (2) including their records in the PLAN database. Participate in further development of PLAN within bounds determined by participatory decision-making. Each library should provide the resources to meet the ordinary needs and interests of its primary clientele. Material requested from another library should generally be limited to those that do not conform to the library's collection development policy or for which there is no recurring demand. Have trained staff to handle both their in-house PLAN online services and management of their resource sharing responsibilities. Petitioner's responsibilities under the agreement with its member libraries are as follows: PLAN will notify the [Member Library] through countersigning this letter whether its participating status is authorized or if there are any conditions which prevent it from being included. PLAN will notify the [Member Library] and all PLAN libraries of the date it will be accorded member library status by other PLAN libraries. By its membership, the member library gains the following advantage: The [Member Library] will be entitled to all benefits as a PLAN member it chooses to utilize including, but not limited to, access to the Panhandle Union List of Serials (PULSE) and the PLAN fax/courier network, and eligibility for special projects and programs sponsored by the PLAN. The procedures for removing a member from the network are as follows: Failure of the [Member Library] to comply with PLAN protocols and procedures or failure to fulfill its assurances as a participant will constitute grounds for PLAN to cancel the [Member Library]'s status as a PLAN library, in which case PLAN shall give written notice to the library. The [Member Library] may cancel its participation in PLAN at the end of any PLAN fiscal year by serving notice in writing at least thirty (30) days before the end of the fiscal year. In fiscal year 1996 Petitioner held 52 workshops. Staff from all library members took part in workshops conducted by Petitioner. It is reasonably inferred that the purposes of the workshops coincided with the overall purpose of Petitioner in its coordinating function to facilitate sharing information among its library members. Information through the program coordinated by the Petitioner is produced in several formats: on-line, CD-ROM and paper. That information is given to libraries at no cost, if the libraries produce their holdings as part of the exchange of information. In the past Petitioner loaned member libraries CD-ROM players, fax machines, and PC's, together with other equipment that would assist its members. Petitioner has directly assisted in making information available to its membership by creating information and loading it on a database. This refers to conversion of paper card catalogs into machine readable electronic digital records. These activities by the Petitioner are at its costs. In carrying out its functions Petitioner attempts to put its members in the position to individually carry out day to day service for the benefit of library patrons. Petitioner's role does not extend to the control of the operation of the member libraries in their provision of library services to the public. In its brochure, Petitioner's exhibit 4, Petitioner's services are further described as: Internet Access - PLAN provides Internet access and training for its member libraries. Libraries without the necessary equipment may apply for a free equipment loan from PLAN. PULSE - The Panhandle Union List of Serials contains the periodical holdings of 33 member libraries and the State Library. Over 29,000 titles are currently accessible on-line, and in print. PLAN inputs and updates the member's periodical holding as well as providing each member with copies of PULSE. Interlibrary Loan - PLAN coordinates the addition of select libraries to become a Group Access member on the OCLC ILL subsystem. We also provide initial training and documentation on using OCLC Interlibrary Loan. Monographic Database - PLAN provides access through its monographic database to almost 4 million titles owned by PLAN members. Each year additional titles are added via updates and retrospective conversion. Equipment Loan - PLAN offers a free equipment loan program to member libraries. Libraries may apply for the loan of a PC, fax machine, CD-ROM player, and/or modem. The fax machines can be used to send ILL requests and receive photocopied ILL materials. Workshops and Continuing Education - PLAN conducts many workshops on a variety of topics of interest to librarians. Tracks include cataloging, reference, management, technology and resource sharing. The workshops are conducted throughout the panhandle region. PLAN members may send two attendees to each workshop at no cost to the library. Consulting - PLAN provides its members with consulting services on automation and other library topics. Retrospective Conversion - PLAN provides conversion services for member libraries without MARC records. Documentary Delivery - PLAN is constantly striving to improve the delivery of documents between member libraries. In addition to fax and U.S. Postal Service, we provide UPS delivery of rush materials. FirstSearch - PLAN provides its members with access to OCLC's databases. These databases contain: books and other materials in libraries worldwide; index of articles and table of contents of nearly 12, 500 journals; index of articles with text online or by e- mail; U.S. government publications; journal articles and reports in education; and abstracted articles from medical journals, etc.
Recommendation Based upon the facts found and the conclusions of law reached it is, RECOMMENDED: That a final order be entered which denies Petitioner's application for Consumer Certificate of Exemption from taxation. DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998. COPIES FURNISHED: Dr. William P. Conniff, Executive Director Panhandle Library Access Network Miracle Strip Loop, Suite 2 Panama City Beach, Florida 32407 William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street, Suite 204 Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner)) Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner)) On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4) In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen)) Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner)) During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5) On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth)) It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5) Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi)) Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein: The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de- partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things. (T 38-39) . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen)) Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))
