86-002483 Bruce W. Tuckman vs. Florida State University Status: Closed Recommended Order on Thursday, June 11, 1987.

Summary: Petitioner's contract with the Univ. of Florida was breached. Since Pet. did not suffer monetary loss, relief was denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE TUCKMAN , )

)

Petitioner , )

)

vs. ) CASE NOS. 86-2483

) 86-3305

THE FLORIDA STATE UNIVERSITY , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T.

Benton, II, Hearing Officer of the Division of Administrative Hearings, on March

24, 1987, and finished the following day. The Division of Administrative

Bearings received the transcript of proceedings on April 8, 1987, and the

parties filed proposed recommended orders on April 20, 1987. The parties'

proposed findings of fact are treated by number in the attached appendix.

The parties were represented by counsel:

For Petitioner : Stephen Marc Slepin, Esquire

Slepin & Slepin

1114 East Park Avenue

Tallahassee, Florida 32301

For Respondent : Gerald B. Jaski, Esquire, and

Linda C. Schmidt, Esquire

Florida State University

311 Hecht House

Tallahassee, Florida 32306

By memorandum dated August 8, 1985, petitioner Tuckman " request[ed] a due

process hearing before an impartial hearing officer pursuant to Florida Statute

120.57 ... to establish the [alleged] impropriety of [his] removal from the

position of Dean of the College of Education."

Respondent Florida State University (FSU) denied petitioner's request for a

formal administrative proceeding in accordance with Section 120.57(1), Florida

Statutes (1987), but treated petitioner's request for hearing as a timely

petition for an informal administrative proceeding under Section 120.57(2),

Florida Statutes (1987). Taking the position that the parties had no dispute as

to any material fact and that the whole "matter [was one] which is within the

discretionary authority of the University Administration," FSU entered what

purported to be a final order on August 23, 1985.

On appeal, the District Court of Appeal, First District, reversed and

remanded for proceedings pursuant to Section 120.57(1), Florida Statutes,

Tuckman v. Florida State University, 489 So.2d 133 (Fla. 1st DCA 1986), holding

that "the University has acknowledged that substantial interests were affected

by its action and that question need not be further addressed." Tuckman v

Florida State University, 489 So.2d 133, (Fla. 1st DCA 1986). What remained to

be addressed at a formal administrative hearing, the court decided, were factual

disputes pertaining to FSU's legal "determinations ... that the contract was not

breached and that Tuckman was not 'professional staff.'" 489 So.2d at 135.

In compliance with the court's mandate, and in keeping with Section

120.57(1)(b )3., Florida Statutes, FSU forwarded the petition to the Division of

Administrative Hearings, where the matter was docketed as Case No. 86-2483.

Thereafter, Dr. Tuckman filed with FSU a second petition for formal

administrative proceedings, this one seeking rescission of an alleged reduction

in pay for the 1986-1987 academic year. FSU transmitted the second petition,

too, to the Division of Administrative Hearings, where it became Case No. 86-

3305. By order entered October 29, 1986, Cases Nos. 86-2483 and 86-3305 were

consolidated for hearing.

In ensuing prehearing conferences, certain issues were isolated as

appropriate for preliminary consideration and for resolution before litigating,

if necessary, other issues in Cases Nos. 86-2483 and 86-3305. As a result, the

hearing on March 24 and 25, 1987, was limited to the following issues.

ISSUES

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

1. 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.

2. 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.

3. 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

4. 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.

5. 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.

6. 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

7. 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...

1. 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

(1) employees holding visiting appointments; or

(2) 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

8. 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.

9. 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)

10. 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

11. "[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.

12. 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)

13. 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.

14. 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)

15. 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.

16. 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:

(1) 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.

(2) 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)

17. 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

18. 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)

19. 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

20. 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.

21. 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.

22. 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:

1. 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.

2. 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.

3. 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)

23. 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.

24. 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

25. 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).

26. 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)

27. 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.

28. 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)

29. 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.

30. 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.

CONCLUSIONS OF LAW

31. Petitioner contends that Dr. Turnbull's letter of July 24, 1985, ended

his deanship on that date, and breached the 1984-1985 employment contract

between petitioner and FSU on that account. FSU first counters that Dr.

Tuckman's deanship did not end then, characterizing the letter stripping Dr.

Tuckman of his authority to act as dean as nothing more than a reassignment of

administrative duties, within a range contemplated by the parties' contract.

Deanship Terminated

32. But, when Dr. Turnbull wrote Dr. Tuckman on July 24, 1985, he

"relieved [him] of [his] responsibilities as Dean of the College of Education,"

Petitioner's Exhibit No. 15, and the parties stipulated that Dr. Turnbull had

full authority to act for FSU's president in this regard. Despite Dr. Tuckman's

contemporaneous claims otherwise, the record is clear that he was no longer

"dean and professor" after July 24, 1985, but "professor" only.

33. The letter of July 24, 1985, did not affect Dr. Tuckman's status as a

tenured professor, but the contract covers the dean ship as well as the

professorship. Any ambiguity in the contract on this point is properly resolved

against FSU, which drafted the form agreement. See Grappone v. City of Miami

Beach, 496 So.2d 838 (Fla. 3rd DCA 1986); American Agronomics Corp. v. Ross, 309

So.2d 582 (3rd DCA) cert. den. 321 So.2d 558 (Fla. 1975).

34. In arguing that Dr. Tuckman continued as dean, notwithstanding a

"reassignment of administrative duties," FSU invokes Rule 6C2-4.033, Florida

Administrative Code, which provides:

(1) Purpose, Scope and Sources of Evaluation.

(a) Each faculty member, tenured and non-

tenured, shall be evaluated at least once

annually on the basis of his or her

individual total performance in fulfilling

responsibilities to the University. The

basic purpose of the evaluation is faculty

improvement in the functions of teaching,

research, service, and any other duties that

may be assigned, with the resulting

enhancement of learning, cultural advancement

and the production of new knowledge. This

evaluation shall precede and be considered in

recommendations and final decisions on

tenure, promotions, salary increments, and

retention or termination.

(b) When first employed, each faculty

member shall be apprised, through his or her

contract, of what is expected of him or her,

generally, in terms of teaching, research and

other creative activities, and service, and

specifically if there are specific

requirements and/or duties involved. If and

when these expectations change during the

period of service of the faculty member, that

faculty member shall be apprised of the

change in written form...

Rule 6C2-4.033, Florida Administrative Code, implements Section 240.245, Florida

Statutes (1985), entitled "Evaluations of faculty members; report. " This

statute, which deals with the assignment of duties and responsibilities only

"[f]or the purpose of evaluating faculty members," Section 240.255(1), Florida

Statutes (1,985), requires:

These assigned duties or' responsibilities

shall be conveyed to each faculty member at

the beginning of each academic term, in

writing, by his departmental chairman or

other appropriate university administrator

....

Section 240.255(1), Florida Statutes (1985).

The statute, and therefore the rule, may be read to apply only to faculty

members below the rank of dean, as a faculty member given assignments by a

departmental chairman would ordinarily be. The statute (and presumptively,

therefore, any rule purporting to implement it) contemplates, moreover, written

assignments "at the beginning of each term." See Mohammed v. Department of

Education, University of Florida, 444 So.2d 1007 (Fla. 1st DCA 1984); but see

Erb Fontenot v. Florida State University, No. 85-3843 (FSU; Jan. 5, 1987).

35. While it is true that Dr. Tuckman was appointed professor, as well as

dean, and was, therefore, a faculty member at all pertinent times, Dr.

Turnbull's letter of July 24, 1985, said nothing whatsoever about reassigning

his professorial responsibilities, "teaching, research and other creative

activities and service." Because he was a dean, not because he was a professor,

Dr. Tuckman was directly answerable to Dr. Turnbull, as President Sliger's

designee. Dr. Turnbull ended Dr. Tuckman's service as a dean; he did not simply

alter his duties as a professor.

Year Term Specified

36. Alternatively, FSU contends that a statute, incorporated by reference

in the parties' employment contract, authorized FSU to terminate the deanship at

will. But a fair construction of the whole instrument is that FSU contracted

for Dr. Tuckman's services as dean through August 31, 1985, and that the parties

were mutually bound by their agreement to this effect. The employment contract

enforced against the employer in Grappone v. City of Miami Beach, 496 So.2d 836

(Fla. 3rd DCA 1986) "[b]y its terms ... commence[d] on a day certain and

terminate[d] upon a future contingent event." At 839. Here both commencement

and termination dates are spelled out.

37. In arguing that the employment contract should be construed as making

Dr. Tuckman dean only at the pleasure of the president, rather than for the

duration of the term stated in the contract, FSU contends that the contract

incorporates by reference a statute in effect at the time FSU and petitioner

entered into the 1984-1985 employment contract, which provided:

[E]ach university shall have the power and

duty to:

* * *

(5) Appoint, remove, and reassign vice

presidents, academic deans, and other policy

level positions reporting directly to the

president. The president shall appoint and

be responsible for all other personnel.

(6) Provide for the compensation and other

conditions of employment for university

personnel who are exempt from chapter 110.

Section 240.277, Florida Statutes (1984

Supp.)

Effective July 1, 1985, Ch. 85-241 s. 13, Laws of Florida (1985), this statute

was amended, Ch. 85-241 s. 6, Laws of Florida (1985), to read, in pertinent

part:

Each University president shall:

(5) Appoint university personnel and

provide for the compensation and other

conditions of employment consistent with

applicable collective bargaining agreements

and Board of Regents rule for university

personnel who are exempt from chapter 110.

Section 240.227, Florida Statutes (1905).

The earlier version of the statute was no longer in effect as of July 24, 1985,

but, to the extent it was incorporated in the parties' contract, its provisions,

if applicable, would continue as part of their contract, notwithstanding the

statutory amendment. Florida Beverage Corp. v. Division of Alcoholic Beverages

and Tobacco, Department of Business Regulation, 503 So.2d 396 (Fla. 1st DCA

1987). For obvious reasons, FSU has made no claim that Dr. Blackwell's

memorandum was incorporated in the parties' agreement.

38. FSU's authority to appoint, remove and reassign is clear. Indeed, the

fact of the contract presupposes FSU's authority to appoint. Nor, in exercising

this authority to appoint, was FSU under any obligation to enter into an

employment contract for a definite term. But, having entered into such a

contract, FSU has no legal authority unilaterally to throw off the contractual

obligations it assumed. Here explicit provisions of the contract define with

precision how FSU's authority to appoint and remove was exercised in this case.

In large, capital letters, the contract declares its intention to bind the

parties for "12 MONTHS," through August 31, 1985.

No Right to Renewal or Notice of Nonrenewal

39. Dr. Tuckman argues that Article VII of FSU's Constitution was

incorporated in the employment contract by reference, and confers the right on

incumbent deans to continue as deans, absent notice and proof of cause for their

removal. As a factual proposition, this contention was rejected ante,

paragraphs 29 and 30 of the findings of fact. Neither the practice at FSU nor

the understanding of ,those who interpretated Article VII was consistent with

incorporation.

40. Petitioner contends, however, that, as dean, he was a person "within a

college or school holding [an] academic appointment [] whose responsibilities

d[id] not include teaching," Rule 6C2-1.004(7), Florida Administrative Code, and

that, as a matter of law, he was "professional staff" within the intendment of

the rule, on that account. But the evidence demonstrated that petitioner did

teach while he served as dean and that, although he had no contractual

obligation to teach, his responsibilities did include teaching, once he took it

on. (T.415 ) Because he both held an academic appointment within the College of

Education and had teaching responsibilities, his situation does not fall within

the ambit of Article VII of the FSU Constitution.

41. The long-standing practice at FSU, and perhaps the universal rule in

this country, is that academic deans have no tenure in their deanships, in the

sense that university professors have tenure as professors. Certainly nothing

in the employment agreements the parties signed created any right in petitioner

to remain as dean beyond August 31, 1985. Cf. Mohammed v. Department of

Education, University of Florida, 444 So.2d 1007 (Fla. 1st DCA 1984); Erb

Fontenot v. Florida State University, No. 85-3843 (FSU; Jan. 5, 1987). Nor does

any provision of the 1984-1985 contract, Petitioner's Exhibit No. 13, spell out

any right to notice of FSU's intent not to renew. Petitioner did not prove any

practice, custom or usage with regard to affording deans notice, when FSU

decides not to renew their contracts for the dean and professor" positions they

hold, much less reliance, on his part, on any such custom or usage. A fortiori,

no right to renewal absent cause has been demonstrated. On this record, FSU was

under no legal obligation to afford Dr. Tuckman any more notice than it did

furnish that his contract as "dean and professor" would not be renewed.

Declaratory Relief Only

42. Dr. Turnbull's letter of July 24, 1985, breached the contract between

the parties, but any injuries Dr. Tuckman may have suffered were not monetary.

He received the agreed salary for the whole term of the contract. In this

respect, the present case resembles that of a public employee who has been

suspended with pay pending a hearing on charges that would warrant termination,

but which are not proven. Although exonerated at hearing, such an employee is

entitled to no additional moneys or other "nondeclaratory" relief, with respect

to the period of suspension.

43. The only injury petitioner has proven that he sustained by virtue of

FSU's breach was the unwelcome change in status, on and after July 24, 1985, to

and including August 31, 1985, from "dean and professor" to "professor" only.

Every other claim he has advanced in each of these consolidated cases must be

rejected, to the extent it rests on rights thought to arise under the parties'

1984-1985 contract. Since, however, the District Court's decision in Tuckman v.

Florida State University, 489 So.2d 133 (Fla. 1st DCA 1986), establishing the

law of the case, assumes that the breach affected petitioner's substantial

interest, he is at least entitled to a declaration that the breach occurred.

Other Allegations

44. In Case No. 86-3305 petitioner seems to allege that FSU reduced his

salary by 18.2 percent for 1986-1987 for "unlawful," "punitive and retaliatory"

reasons. Under these broad headings, it may be petitioner's intention to plead

violations of his rights as a tenured professor, see Rule 6C-5.225, Florida

Administrative Code, or of his First Amendment rights as a citizen. See Connick

v. Myers, 461 U.S. 138, 75 L.Ed.2d 708, 103 S.Ct. 1684 (1983); Pred v. Board of

Public Instruction of Dade County, Florida, 415 F.2d 851 (5th Cir. 1969).

Against this possibility, it is appropriate to grant leave to amend the petition

in Case No. 86-3305, in order that petitioner have an opportunity to file a

petition in conformity with Rule 22I-6.004, Florida Administrative Code. See

All Risk Corp. of Florida v. State Department of Labor and Employment Security,

Division of Workers' Compensation, 413 So.2d 1200 (Fla. 1st DCA 1982). By

separate order of even date, such leave is granted, and Case No. 86-3305 remains

open for that purpose.

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

[phone]

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

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF EDUCATION

DIVISION OF UNIVERSITIES

STATE UNIVERSITY SYSTEM

THE FLORIDA STATE UNIVERSITY

BRUCE TUCKMAN,

Petitioner,

vs. CASE NO. 86-2483

THE FLORIDA STATE UNIVERSITY,

Respondent.

______________________________/

FINAL ORDER

This matter came before me as Presidents of The Florida State University,

in my capacity as agency heed as defined in section 120.52(3), Florida Statutes,

for consideration of the Recommended Order in the above-styled cause as rendered

by the Hearing Officer of the Division of Administrative Hearings on June 11,

1987, pursuant to formal proceedings conducted in accordance with section

120.57(1), Florida Statutes. See Tuckman v. Florida State University, 489 So.2d

173 (Fla. 1st DCA 1986). Exceptions to the Recommended Order were filed by the

Petitioner. Upon consideration of the Recommended Order and Petitioner's

exceptions thereto, it is hereby ordered:

1. That the Hearing Officer's Findings of Fact, paragraphs 1-30, are

adopted and incorporated herein by reference.

2. That the Hearing Officer's Appendix, ruling on the parties' proposed

findings of fact, is adopted and incorporated herein by reference, with the

exception of the first and last sentences in the eighth and last full paragraph

on page 21, which state a conclusion of law of the Hearing Officer with which

the University disagrees.

3. That the Hearing Officer's Conclusions of Law and their corollaries and

legal reasoning leading thereto that Petitioner was not a member of the

"professional staff" referenced in Article VII of the University Constitution,

that there is no tenure in a deanship , that Petitioner had no right to continue

as dean subsequent to August, 1985, nor any right to notice of nonrenewal beyond

what he was given, that Petitioner suffered no monetary damages, are adopted and

incorporated herein by reference, but the Conclusion of Law and legal reasoning

leading thereto that there was a technical breach of contract by the University

is rejected.

4. That the Hearing Officer's Conclusion of Law and the legal reasoning

leading thereto that the University entered into a contract for Petitioner's

services as dean through August 31, 1985 [with no discretion reposed in the

President or his designee, the Vice President, to remove or reassign the dean's

policy-level duties if the need arose], and therefore by relieving him of his

responsibilities as dean on July 24, 1985, breached a contract with Petitioner

is rejected for the following reasons:

"Dean and Professor" is precisely an academic classification. It is a

specific and singular classification within the faculty pay plan. (See Finding

of Fact 25.) That title is covered under Article VI of the Florida State

University Constitution (Rule 6C2-1.004(6), Florida Administrative Code, which

defines faculty. (See Finding of Fact 30.) Thus, Rule 6C2-4.033, Florida

Administrative Code, applies to Dean and Professor as a single job

classification of a faculty member. Of particular note is subsection (b) of

that Rule:

(b) when first employed, each faculty

member shall be apprised, through his or

her contract, of what is expected of him

or her, generally, in terms of teaching,

research and other creative activities,

and service, and specifically if there are

specific requirements and/or duties

involved. If and when these expectations

change during the period of service of the

faculty member, that faculty member shall

be apprised of the change in written

form...

Contrary to the recommended conclusion of law, p. 15 of the Recommended

Order, the "assigned duties" include Petitioner's duties as professor and as

dean. Indeed his administrative duties flow from and interact with his

responsibilities of teaching, research and other creative activities and

service, and specifically where he had "specific requirements and/or duties

involved" as dean. Dr. Turnbull's letter of July 24, 1985, reassigned those

duties in accord with this rule.

The appointment "contract" at issue herein, Petitioner's Exhibit 13,

communicated to him that his annual salary for the period September 1, 1984

through August 31, 1985, would be $63,000. The document specified the salary,

the Classification Title/Rank of Dean & Professor, with a Class Code of 9040 and

Appointment Modifier B. None of these numbers or designations changed on July

24, 1985. The Hearing Officer found that as a practical reality Petitioner did

not serve as dean after July 24, 1985, and the University has accepted that

factual determination, but the University never promised Petitioner that he

would have an administrative assignment throughout the anticipated period to do

deanly duties. The Hearing Officer did not specifically address the

University's proposed finding of fact, which is supported by the evidence, that

appointment contracts and assignments of duties are not contained in the same

document. University practice and Rule 6C2-4.033 noted above clearly

demonstrate this fact.

The contract document that gave Petitioner deanly duties was his Exhibit

10, the letter of April 28, 1983, from Dr. Turnbull offering Petitioner the

position of "Dean of the Florida State University College of Education which

carries with it the rank of Full Professor of Education." The Hearing Officer

correctly found that there is no tenure in a deanship at this University and

perhaps universally in this country and that the University's authority to

appoint, remove, and reassign deans is clear. Thus, a dean's employment as dean

is at the pleasure of the President, i.e., at will.

Petitioner's initial "contract" with the University, his offer and

acceptance of employment with the University to begin on July 1, 1983

(Petitioner's Exhibit 10), is a contract of indefinite duration. It anticipates

continuing beyond simply being temporary. Contracts for indefinite periods of

time may be terminated by either party at will. Knudsen v. Green, 116 Fla. 47,

156 So.240 (1934); Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2d DCA

1983); Roy Jorgenson Assoc., Inc. v. Deschenes , 409 So.2d 1188 (Fla. 4th DCA

1982); Catania v. Eastern Airlines, Inc., 381 So.2d 265 (Fla. 3d DCA 1980;

Russell & Axon v. Handshoe , 176 So.2d 909 (Fla. 1st DCA), cert. denied, 188

So.2d 317 (Fla. 1965). Petitioners initial contract includes a continuing

appointment (as opposed to temporary) under Rule 6C-5.105(4)(a )1, Florida

Administrative Code:

(4) Types of Appointments - Appointments

are classified with respect to duration

of time and degree of effort.

(a) Duration of time.

1. Continuing - Those appointments

for periods of no more than twelve

months but at least thirty-nine weeks of

each, beginning with the Fall

or Summer term.

2. Temporary - Those appointments for

periods of time of less than thirty-nine

weeks of an academic year. If an appoint-

ment is temporary, the contract or letter

of appointment shall so state and notice

of nonrenewal of such an appointment is not

required.

( emphasis supplied). Continuing means at least 39 weeks ; temporary means less

than 39 weeks, or nine months, the standard faculty appointment. As

appointments of indefinite duration, continuing contracts are terminable at will

subject to any applicable notice provisions or tenure rights as found elsewhere

in the rules or union agreement . There is no tenure in administrative

positions, nor do notice provisions apply to tenured faculty members who are

informed they will not continue in an administrative position. Mohammed v.

Dept. of Education, Univ. of Fla., 444 So.2d 1007 (Fla. 1st DCA 1984). Unlike

for all other classes of employees, there are no provisions of any kind in the

statutes, rules or union agreement giving academic deans (or vice presidents or

such policy level positions) any employment rights in their administrative

duties. An analogous situation to the present case existed in Roy Jorgensen

Associates, Inc. v. Deschenes, wherein Deschenes was offered and accepted an

employment contract containing an express provision relating to its duration,

stating that

On or about October 31 you will be

assigned to our Ecuador Highway

Maintenance Technical Assistance

Project in the capacity of Highway

Maintenance Engineer for a period

of 28 months.

409 So.2d at 1190. The letter also referred to Deschenes becoming a "permanent

employee" and the accrual of three weeks per year of annual leave after five-

years' service. The court viewed "the quoted language of the contract ....as

being merely language of expectation, not as a definite period of employment."

Id. Likewise in Petitioner's case the intention when he was hired in 1983 was

that he would serve as dean of the College of Education for an indefinite

period--as long as the President or designee wanted him to, subject to his own

right to resign at any time. (See Finding of Fact 23, 24.) Other Academic

Deans testified that this was the Agency policy and practice and they also

signed continuing "contracts" as Petitioner's Exhibit 13. Petitioner's annual

appointment contracts specifying annual salary may be seen as evidencing

expectations within the original indefinite term of employment.

The Hearing Officer seems to have focused only on Petitioner's Exhibit 13

in finding that it somehow limited the University's recognized authority to

remove Petitioner as dean, without reading it in pari materia with Petitioner's

initial appointment letter and without construing applicable law to be part of

it. In addition to the above noted Rules, at the time of execution of the

contract at issue, the following statute was in effect:

[E ]ach university shall have the

power and duty to:

(5) Appoint, remove, and reassign

vice presidents, academic

deans, and other policy-level

positions reporting directly to the

president. The president shall

appoint and be responsible for all

other personnel.

(6) Provide for the compensation

and other conditions of employment

for university personnel who are exempt

from Chapter 110.

240.277(5), Fla. Stat. ( Supp. 1984) (emphasis supplied). This same explicit

additional authority was provided in Rule 6C- 4.01(2). Applicable law in force

at the time a contract is executed is deemed to be part of the contract as if

expressly incorporated into it. Fla. Beverage Corp. v. Div. of Alcoholic

Beverages & Tobacco, 503 So.2d 396 (Fla. 1st DCA 1978). The contract here at

issue specifically provided that it is subject to the constitution and laws of

this state, the United States, and the rules of the Board of Regents. Moreover,

agency practice, including trade and local customs and usages (as found in

Finding of Fact 23 and 24.), are relevant to consider in interpreting the

contract. 11 Fla. Jur. 2d Contracts 125, 128, 129 (1979) ; Restatement (Second)

of Contracts 222 (1979).

Section 240.277(5) gives the University (President or designee) the power

to appoint and be responsible for all university personnel. The power to

appoint would include the power to appoint for a specific, definite term as well

as for an indefinite term. It would also include the power/discretion not to

appoint or not to reappoint. The legislature did not deem the President's power

to appoint for a specific term or to choose not to do so sufficient in the case

of academic deans and other policy-level positions. It went further regarding

the President's power over these positions and explicitly and specifically gave

the President the additional power to remove and reassign them. Removal and

reassignment connote a change in status at the time an existing appointment is

still operative. This interpretation is based on the plain meaning of the

words, Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA

1963), Guarniere v. Henderson, 171 So.2d 617 (Fla. 1st DCA 1965), as well as the

presumption that statutory language is there for a purpose. Alexander v. Booth,

.56 So.2d 716 (Fla. 1952) ; Lee v. Gulf Oil Corp., 148 Fla. 612, 4 So. 868

(1941) ; Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960).

Section (6) of the statute gives the President the authority to "provide

for the compensation and other conditions of employment" for University

personnel. That would include the term, duration and assignment of all such

personnel, including academic deans. Further, Section (5) gives the President

the right to appoint certain high level, policy positions, including academic

deans. Clearly those two sets of powers would give the President the power to

appoint for only a specific duration or for no duration, i.e., at will. Thus,

Section (6) and the power to appoint alone would give the President the very

authority which the Hearing Officer concluded the University utilized in

creating the "contract" at issue, Petitioner's Exhibit 13. But the legislature

gave the University two additional provisions for this certain category of

policy level positions, i.e., "to reassign and to remove." These additional

powers were intended notwithstanding the appointment, whether for a certain

duration, certain period of time or certain assignment. This statutory power

incorporates a long standing academic custom and far understanding, which was

further expressed in a Chancellor's memorandum (Respondent's 16) and in the

Board of Regents Rule, 6C-4.01(2). The "contract" at issue incorporates those

statutory and agency rules and specifically makes it subject to them. All of

the academic deans testified that they signed similar "contracts" and understood

they served at the pleasure of the President or his designee, and could be

unilaterally reassigned or removed at any time. Even Petitioner said his past

experience was that deans serve at the pleasure of the University.

Agency practice and policy has long been that deans serve at the pleasure

of the President or designee. The 1984-1985 "contract" at issue was not meant

to, and did not, promise a specific assignment; it promised a specific salary,

with the contemplation that Petitioner would serve as dean unless something

happened to cause the President or designee to determine that Petitioner's

service as dean was no longer in the best interests of the University. The

University would never bind itself to enduring a 12-month period with a top

policy-level administrator who becomes unacceptable, for whatever reason, to the

President or designee and give up its clear authority not only to appoint, but

also, in addition, to remove and reassign. Recommended Order at 17.

Likewise, it is clear that the parties did not intend that the designation

of August 31, 1985 was to signify the legal duration of Petitioner's status as

professor. Yet that would also be the logical conclusion of the Recommended

Order.

The same rules and statutory provisions as well as standard practice in

existence outside the four corners of Petitioner's Exhibit 13 reveal not one

right, process or procedure relating only to deans or administrative duties.

Deans are faculty whose assignment is predominantly administrative as determined

by the Vice-President. Some deans do what others do not; colleges, schools, and

departments differ. University administration requires a policy which makes

such service and duties to be at the discretion and unilateral direction of the

appropriate administrator, whether it be Vice-President, President or other.

That is precisely what history, practice, policy, rule and statute provide.

It is to these factors that logic dictates we go to determine what the

contract, with a capital "C," between Petitioner and Respondent really is.

The Recommended Order erroneously disregards the history, policy, practice,

Rules and Statutory provisions noted above. Instead it views simply "12 months"

and August 31, 1985 as the controlling provisions without going beyond the

document. Clearly none of the terse terms, phrases and code numbers is clearly

self-evident or all-encompassing.

The Hearing Officer apparently concluded as a matter of law that the

University forfeited even these additional powers given by the legislature in

section 240.277(5) by entering into the subject contract, even though the

University was under no obligation to do so. The University rejects this

interpretation as contrary to its longtime policy, practice, rule and statute,

that deans serve at the pleasure of the President and contrary to the document

itself, which does not except section 240.277(5) from the "Laws of the State of

Florida" to which it was explicitly subject. The University's interpretation of

a statute governing its operation and based on long-established policy should be

given great weight. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569

(Fla. 1st DCA 1977). Moreover,

Contracts are written, and are to be

read, by reference to the norms of

conduct and expectations founded upon

them. This is especially true of

contracts in and among a community of

scholars, which is what a university is

The readings of the market place are not

invariably apt in this non-commercial

context.

Greene v. Howard University, 412 F.2d 1128, 1135 (D.C. Cir. 1969) (emphasis

supplied).

5. That Petitioner's exceptions are diposed of as follows:

1. and 2. Contrary to Petitioner's asser-

tion, there was no breach of contract.

But even if there had been, the law would

not require restoration of his position,

as his right to it would have expired on

August 31, 1985. Denied.

3. Petitioner's assertion is contrary to

the Hearing Officer's findings, which were

supported by the law and evidence. Denied.

4. Same as 3. Denied.

5. As found by the Hearing Officer and

according to law the alleged breach was with-

out legal detriment to Petitioner inasmuch

as he lost no salary. The alleged humilia-

tion suffered by Petitioner is not an element

of recoverable damages and is contrary to the

evidence. Hazen v. Cobb, 96 Fla. 151, 117

So. 853 (1928). Denied.

6. The undersigned is unable to determine

which are the "discrete, penumbral findings

or conclusions adjunctive to #1 - #6 [sic]"

to which he excepts and further, there is

ample evidence to sustain the findings.

Denied.

6. That the Hearing Officer's recommendation that the University enter a

final order declaring that the parties' 1984- 1985 employment contract was

breached effective July 24, 1985, is rejected for the above-stated reasons, but

his recommendation that other relief should be denied is accepted. All of the

Hearing Officer's conclusions of law that support the denial of relief are

incorporated herein.

IT IS THEREFORE ORDERED THAT:

The Petition herein is DISMISSED.

Pursuant to section 120.59, Florida Statutes, the parties are notified that

any appeal of this Final Order may be made by filing one copy of a Notice of

Appeal with the Clerk of the Agency, Ms. Janet V. Everheart, Office of General

Counsel, 311 Hecht House, Florida State University, Tallahassee, Florida 32306,

and one copy, accompanied by the filing fees prescribed by law, with the First

District Court of Appeal within thirty (30) days of the date this Order is

filed.

This Order shall become effective upon filing with the Clerk of the Florida

State University.

DONE this 9th day of September, 1987.

_________________________________

BERNARD F. SLIGER

President

The Florida State University

Filed with the Clerk of the Agency this 9th day of September, 1987, at

Tallahassee, Leon County, Florida

_________________________________

Janet V. Everheart

Clerk

The Florida State University

COPIES FURNISHED:

The Honorable Robert Benton

Hearing Officer

Division of Administrative Hearings

The Oakland Building

Tallahassee, Florida 32301

Stephen M. Slepin, Esquire

1114 East Park Avenue

Tallahassee, Florida 32301

Gerald B. Jaski, Esquire

Linda C. Schmidt

Office of the General Counsel

The Florida State University

311 Hecht House

Tallahassee, Florida 32306