05-003806 Percy Luney vs. Florida A And M University Board Of Trustees Status: Closed Recommended Order on Wednesday, July 12, 2006.

Summary: The evidence did not show that Petitioner intended to defraud the school by hiring an employee who did not fulfill assigned duties, but did show a lack of supervision and forthrightness which affected Petitioner`s positions as dean and tenured professor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERCY LUNEY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3806

)

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was conducted in this

case on March 28 and 29, 2006, in Tallahassee, Florida, before

Diane Cleavinger, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas B rooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

For Respondent: Robert L. Norton, Esquire

Allen, Norton & Blue, P.A.

121 Majorca, Suite 300

Coral Gables, Florida 33134

Robert E. Larkin, III, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner as Dean and

tenured faculty professor of the University's College of Law

should be terminated.

PRELIMINARY STATEMENT

On September 19, 2005, Petitioner was terminated from his

position as Dean and tenured fa culty professor of the Florida A

and M University (FAMU) College of Law. The termination was

premised upon Petitioner's alleged employment and direct

supervision of a law school employee, Shirley A. Cunningham,

Jr., who was not physically present at the l aw school in

Orlando, Florida.

Petitioner requested a formal hearing concerning his

dismissal.

At the hearing, Respondent presented the testimony of three

witnesses and offered 36 Exhibits into evidence. Petitioner

testified on his own behalf and presen ted the testimony of two

witnesses. Additionally, Petitioner offered 19 Exhibits marked

Petitioner Exhibits 1 - 16, 18, 20, and 21 into evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Orders on May 24, 2006, which have bee n considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Percy Luney, graduated from Harvard Law

School in 1974. From 1980 to 1985 he served as the Assistant

Dean of the North Carolina Central University School of Law. In

1985 he became a Fulbright Research Scholar at the University of

Tokyo in Japan. In the following years, Petitioner served as

either a visiting professor or adjunct professor at the

University of Oregon, Waseda University, University of Tokyo,

Washington University, Doshisha University, Kobe University and

Duke University. In 1998, Petitioner became Dean and a

professor at North Carolina Central University. From 1998

through 2000, Petitioner served as the president of the National

Judicial College. On April 2, 2001, Petitioner was hired as

Dean of the newly - created FAMU law school. The position of Dean

is an at - will position at FAMU.

2. In May 2001, Petitioner was also hired as a tenured

professor of law at the FAMU law school, but did not perfor m any

faculty duties. Unless there are extraordinary circumstances,

such dual employment is required by American Bar Association

(ABA) law school accreditation standard 205(c). A system of

tenure and policy with respect to academic freedom are also

requi red by ABA standard 405(b). The purpose of the two

requirements is to enable an institution to attract the best

qualified legal educators to serve as deans by providing job

security to the person selected. A secondary purpose of the two

requirements is t o insulate a dean from the more political

aspects of being dean and being terminated for making

legitimate, but unpopular decisions. Importantly, the ABA

accreditation standards do not set forth any requirements

regarding the terms or application of an in stitution’s system of

tenure, but defers to that institution’s tenure system and the

legal precedents relative to the hiring and termination of the

institution’s employees.

3. On September 19, 2005, Petitioner was terminated from

his position as Dean an d tenured faculty professor of the FAMU

College of Law. The termination was premised upon Petitioner's

employment and allegedly fraudulent or negligent supervision of

a law school employee, Shirley A. Cunningham, Jr.

4. Prior to this case, Petitione r’s integrity and honesty

have never been questioned.

5. Once employed at FAMU, the majority of Petitioner's

efforts at the new law school focused on choosing a location for

the school; obtaining, building or remodeling a facility to

house the school; an d, hiring a faculty for the law school.

Additionally, one of Petitioner’s primary objectives was to

achieve ABA provisional accreditation. Such accreditation is

important for the acceptance of the law school’s diploma in the

community and indicates that the law school’s graduates are

appropriately educated in the law. ABA accreditation is also

important because graduating from an accredited law school is

required to take the Florida bar exam, without which a person

cannot become a licensed attorney in Fl orida. Petitioner's

duties as Dean also included short and long - range planning,

demonstrating academic leadership, developing curricula,

budgeting, managing of personnel matters, representing the new

College of Law inside and outside the University and pr omoting

its growth and development into an institution worthy of state,

national, and international respect.

6. As Dean of the FAMU College of Law, Petitioner reported

directly to the Provost and Vice President for Academic Affairs.

7. On October 17, 2001, Petitioner received by facsimile

from FAMU president, Dr. Frederick Humphries, a copy of a letter

to Dr. Humphries dated October 11, 2001, from John D. Price, an

accountant, on behalf of Shirley A. Cunningham, Jr. The letter

confirmed Mr. Cunningham 's commitment to donating $1,000,000.00

toward establishing an endowed professorship at the FAMU College

of Law. This was the first time Petitioner became aware of

Mr. Cunningham. President Humphries requested that Petitioner

write a letter to Mr. Cunnin gham thanking him for the gift.

8. At the time, Mr. Cunningham was the managing partner in

his law practice located in Lexington, Kentucky. He spent

approximately 35 percent of his time with his firm in

litigation. His home address was Georgetown, Kentucky, although

he also maintained a home in Parkland, Florida. The evidence

did not demonstrate which home Mr. Cunningham declared as his

legal residence.

9. The last paragraph of Mr. Price's letter states:

Mr. Cunningham anticipates a three year

co ntract to the endowed chair and is looking

forward to the opportunity to discuss with

the applicable persons in your personnel

department, the employee agreement,

including the salary and other fringe

benefits available to the professors at your

university .

Petitioner thought this statement regarding employment of

Mr. Cunningham was unusual, but at the time, did not pursue the

issue further.

10. Sometime later Petitioner spoke with Mr. Cunningham by

phone about the gift and potential for future emplo yment. After

that conversation, Petitioner responded to Mr. Price by letter

dated October 29, 2001, suggesting that Mr. Cunningham consider

changing the form of his gift from an endowed chair to dividing

the gift into an endowed professorship, an endowed scholar’s

fund and the construction of the law school building.

Petitioner felt these types of gifts would be of more immediate

benefit to a new and developing law school. The letter also

reflected that Mr. Cunningham and Petitioner discussed

Mr. Cunning ham’s anticipated employment with the law school.

Although the terms of employment were not discussed in detail,

the letter reflects that Petitioner anticipated Mr. Cunningham’s

eventually becoming a member of the law school faculty in its

second year of operation when courses that Mr. Cunningham was

interested in teaching would be offered. Until then,

Mr. Cunningham would have an office available to him at the law

school so that he could assist Petitioner with curriculum

development and fundraising.

11. Around December 17, 2001, Petitioner received an email

from Mr. Cunningham informing him that he had signed the gift

agreement the University had prepared. The gift agreement

signed by both Mr. Cunningham and Respondent in December 2001

and January 2002 , respectively, established the Shirley A.

Cunningham Endowed Chair at the college of law. The name for

the chair appears to have been developed over time by

Mr. Cunningham. The gift agreement does not address any

anticipated employment of Mr. Cunningham . However, the evidence

was clear that such employment was part of the negotiations for

the eventual gift.

12. The gift was eventually funded on January 7, 2002, by

a wire transfer of $1,000,000.00 from Mr. Cunningham to the FAMU

Foundation to estab lish an Eminent Scholar Chair titled

Shirley A. Cunningham, Jr., Distinguished Chair of Law.

13. Throughout 2002 and into 2003, Petitioner and

Mr. Cunningham had a few discussions about his joining the

faculty of the law school to teach. However, Mr . Cunningham was

unwilling to commit to being present at the law school on at

least a weekly basis. Because Petitioner believed

Mr. Cunningham's regular presence as a teaching faculty member

was required to ensure that the new law school complied with the

accreditation requirements of the American Bar Association,

Petitioner made it clear to Mr. Cunningham that he could not

join the faculty to teach without being present on a regular

basis.

14. The employment issue appeared to come to a head when

Petitio ner was summoned to a meeting with a Board of Trustees

member William Jennings, former President's Executive Assistant

Jim Davis, former FAMU President Fred Gainous, and

Mr. Cunningham in June, 2003 at the Orlando Airport.

Mr. Jennings arranged the meeti ng because he had received

information that Mr. Cunningham was upset due to the fact that

he could not arrange to meet with or talk to Petitioner or

President Gainous.

15. Petitioner arrived at the meeting not knowing who was

going to be at the mee ting or its purpose. When he arrived, a

discussion ensued regarding Mr. Cunningham's employment at the

law school. Petitioner explained that Mr. Cunningham did not

want to teach because he could not be there on a regular basis

and, if he could not teach , he could not be part of the faculty

due to the potential problems with ABA accreditation.

Petitioner stated that under no circumstances would he bring

Mr. Cunningham on the faculty to teach if he could not commit to

being present on a regular basis.

16. The discussion then turned to whether there was some

non - teaching capacity in which Mr. Cunningham could be employed

with the law school. One of the proposals was that

Mr. Cunningham serve in an administrative capacity as an

assistant to the Dean in a classification titled “Associate In.”

This position would not conflict with the ABA accreditation

standards because, while it can be a teaching position, it can

also be a non - teaching position.

17. The discussion ended with agreement that

Mr. Cunning ham would furnish Petitioner with a list of suggested

duties. President Gainous instructed Petitioner to negotiate

the details of an employment relationship with Mr. Cunningham.

Mr. Cunningham’s employment with the law school was presented as

more of a f ait accompli to Petitioner, and he did not feel he

had discretion not to employ Mr. Cunningham in some capacity.

Mr. Jennings denies that Mr. Cunningham's employment was

discussed during this meeting or that he had any knowledge of

Mr. Cunningham being em ployed until after the payroll audit in

April 2005. However, Mr. Jennings was in and out of the meeting

and did not hear all of the discussions held during the meeting.

Many of the general topics Mr. Jennings did recall could easily

have related to the e mployment of Mr. Cunningham. Mr. Jennings’

denial that Mr. Cunningham’s employment was not discussed is not

given any weight in this regard.

18. There was never any explicit instruction or

expectation that Mr. Cunningham would be paid but not expect ed

to work or earn his salary.

19. Shortly after the meeting at the airport,

Mr. Cunningham faxed Petitioner a memorandum dated June 26,

2003, suggesting job duties that he could perform for the law

school. Mr. Cunningham referred to himself in the memo randum as

"Distinguished Chair of Law" and stated the subject of the memo

as "Chair Responsibilities." His suggested job duties were:

Explore the developments/establishment of

articulation agreements between selected

Liberal Arts institutions and the FAM U Law

School.

Work toward the development and

implementation of a Monthly Brown Bag

Lecture Series.

Assist with student recruitments.

Exploration of a concentration of

Agricultural Law for the JD and LLM at the

FAMU Law School.

Assist with the identif ication of

internships for law students.

Work toward the development of Barrister

Hall (or the Shirley A. Cunningham, Jr.)

Summer Academy that would provide intenstive

enrichment opportunities for prospective and

current law students.

20. Petitione r was not satisfied with Mr. Cunningham's

suggested duties and on July 11, 2003, sent him a memorandum

proposing specific duties acceptable to him as instructed by

President Gainous. Those duties were the following:

Work toward the development and

impleme ntation of a monthly lecture series

on the legal profession.

Work toward the development and

implementation of a bar examination

preparation program.

Assist in the identification of summer

internships for our law students.

Work toward the development of the Shirley

Allen Cunningham, Jr. academy providing

enrichment opportunities for prospective law

students.

Assist the dean with fundraising to support

student scholarships and academic programs.

Work toward the development of the center of

agricultural law.

21. Petitioner used the same title (Distinguished Chair of

Law) and subject (Chair Responsibilities) used by

Mr. Cunningham. The memorandum suggested the same annual salary

of $100,000.00 and three - year term that had been requested by

Mr. Cunn ingham prior to the gift being made by Mr. Cunningham.

The July 10 memorandum was faxed to President Gainous and Jim

Davis to keep them updated on the negotiations and give them the

opportunity to respond to him if he was proposing anything they

did not a gree with. Petitioner never heard directly back from

either regarding Mr. Cunningham’s employment.

22. At the time, Petitioner contemplated that fundraising

would be a major responsibility of Mr. Cunningham’s duties and

thus would justify his salary ove r the course of the expected

three - year period.

23. At some point, Petitioner’s assistant received a call

from Jim Davis, Executive Assistant to the President of FAMU,

that indicated Mr. Cunningham should be “put on line,” or hired.

The message was passed along to Petitioner. Within about a

week, Petitioner instructed his assistant to prepare the

paperwork necessary to employ Mr. Cunningham. Petitioner’s

assistant was given the July 10 memorandum containing the list

of Mr. Cunningham’s duties and, based on her experience, knew

that he was being placed in a non - teaching, faculty position

with administrative duties.

24. Petitioner’s assistant actually selected the exact

vacant position into which Mr. Cunningham would be placed from a

file of vac ant and authorized positions that she maintained.

The position she selected was Associate In, Class Code 9120.

The possible duties for the occupant of this position were:

Responsible to a Chair or other appropriate

administrator of a State University.

R esponsible for assisting professional staff

with teaching, researching, and/or service

activities or assisting in professional

academic responsibilities which are directly

related or supplemental to the

instructional/academic mission of the

department/unit .

Although technically a faculty position because it is designated

as a faculty line in the budget, this position is normally

considered an administrative position, much like Petitioner’s

tenured faculty position.

25. Petitioner’s assistant follow ed FAMU’s checklist for

hiring. The checklist requires that certain documents be

completed for submission to the University’s personnel office.

The main documents on the checklist are the form for

recommendation for faculty employment and the form for

as signment of responsibilities. These two documents are

prepared for Petitioner’s signature. Other documents on the

checklist support these two forms and include an employment

application, three letters of recommendation, official

transcript and resume. T hree forms on the checklist are not

always required and, at the time were not prepared as part of

Mr. Cunningham’s employment package because Petitioner’s

assistant believed that FAMU policy did not require advertising

of a vacancy when it was a visiting p osition, such as the

position here. These forms are the position vacancy form,

approval to advertise form and years credited toward tenure

form.

26. Petitioner’s assistant began preparing and assembling

the documents on the checklist. In a letter signed by

Petitioner and dated July 14, 2003, she forwarded the forms,

required to be filled out by Mr. Cunningham to him, and

requested he provide three letters of recommendation and a

resume. Mr. Cunningham complied and filled out the employment

applic ation around July 28, 2003. The application lists his

address as Parkland, Florida, in Broward County. The home phone

number reflects an area code consistent with a Broward County

address. The business phone number reflects an area code for

the Lexingto n, Kentucky area. The resume attached to the

application reflects an address in Georgetown, Kentucky, and

phone numbers consistent with a Kentucky address. The resume

address differs from the business address and phone numbers

listed in the resume. The business address and phone numbers

are also located in Kentucky. Mr. Cunningham returned these

documents to Petitioner’s assistant around the end of July.

27. During the time that Petitioner’s assistant was

processing the hiring paperwork for Mr. Cunning ham, but before

she sent the initial package to Tallahassee, she received

repeated phone calls from Herbert Bailey, inquiring about the

status of the hiring documents. Mr. Bailey was the FAMU

employee in the Provost’s office she normally dealt with on

per sonnel matters. Mr. Bailey expressed to her a sense of

urgency in getting those documents so Mr. Cunningham could be

placed on the payroll.

28. Around August 12 or 14, 2003, once all of the

checklist documents were assembled by her, Petitioner’s

ass istant forwarded them to Larry Robinson at the FAMU Provost’s

office for further processing. The Recommendation For Faculty

Employment Form and Assignment of Responsibility Form reflect

that Mr. Cunningham’s duties would be 10 percent public service

and 9 0 percent administrative with a full - time equivalent (FTE)

of one. In short, regardless of the hours actually worked,

Mr. Cunningham’s position was considered to be equivalent to

full - time employment. The recommendation for employment letters

signed by P etitioner reflect the belief that Mr. Cunningham

would be a magnet for fundraising and recruitment of students.

29. The effective date of Mr. Cunningham’s employment was

set as August 8, 2003, and ran for one year. Given this date,

it is clear the official employment paperwork was catching up

with events that had already transpired. Such a practice was

not unusual.

30. After she had submitted the hiring package for

Mr. Cunningham to Tallahassee, Petitioner’s assistant received a

call from Mr. Bai ley in the Provost's office in Tallahassee,

requesting that she send him a vacancy notice and request to

advertise Cunningham's position, even though there was no

requirement to advertise a visiting appointment. She complied

with this request, had Petitio ner sign the forms on September 3,

2003, and forwarded those forms to Mr. Bailey. The record was

not clear if the position was ever advertised or what Mr. Bailey

did with those forms.

31. A contract or offer of employment to Mr. Cunningham

was sig ned by Larry Robinson on September 5, 2003, and forwarded

to Mr. Cunningham. Mr. Cunningham signed the document on

September 29, 2003 and returned it to the University.

32. In Mr. Cunningham's employment file there are

documents identifying him as a Dis tinguished Chair, a faculty

member and an "Associate In Visiting Professor." Many of these

references were generated prior to the actual employment of

Mr. Cunningham and were simply short - hand references to discuss

possible employment in the future, and, to some extent, were

originally self - styled references by Mr. Cunningham that were

perpetuated in correspondence. However, when Mr. Cunningham was

formally hired, he was in fact hired on a visiting appointment

throughout his employment with no fixed hours established for

that appointment. The evidence did not demonstrate that there

was any fraud intended by Petitioner in the preparation of any

employment documents or in the employment of Mr. Cunningham.

33. Mr. Cunningham began receiving a salary from FA MU.

Law school employee checks were mailed to the law school for

distribution to the relevant employees. Mr. Cunningham’s check

was handled in the same manner. However, because he was not at

the law school, Petitioner’s assistant forwarded his check to

him in Kentucky. The evidence did not demonstrate that the

method of handling Mr. Cunningham’s check was intended to hide

the fact that Mr. Cunningham was not physically present at the

law school. Likewise, no intent to defraud was shown by these

actions .

34. Curiously, Petitioner did not inform Omar Saleem,

Associate Dean of Academic Affairs of the Law School, of

Mr. Cunningham's duties or employment. The lack of information

appears to have been due to the fact that Mr. Cunningham’s

employment was gene rated from the FAMU president’s and Provost’s

offices. Consequently, Mr. Saleem, as the Dean responsible for

faculty appointments at the College of Law, was unaware that

Mr. Cunningham had been employed. However, Petitioner never

attempted to keep Mr. Cu nningham's status as an employee of the

law school secret and, in fact, he announced his status to the

faculty in 2003, including Mr. Cunningham in the law school

self - study as an Assistant to the Dean, not a member of the

teaching faculty. On page 23 of the self - study that was

distributed to all members of the law school faculty,

Mr. Cunningham is referred to as follows:

Shirley Allen Cunningham, Jr., our million

dollar donor, has agreed to work with the

College of Law as a Special Assistant to the

Dean. He will assist the Dean with

fundraising to support student scholarships

and academic programs, particularly the

development of the Center on Agricultural

Law; identification of summer internship

opportunities; a monthly lecture series; and

development of a bar examination preparation

program.

Mr. Cunningham is not listed as a member of the teaching

faculty.

35. As indicated in an earlier memorandum, while employed

at the College of Law, Mr. Cunningham was responsible for the

following duties:

a. w orking towards 'the development and

implementation of a monthly lecture series

on the legal profession’;

b. working towards 'the development and

implementation of a bar examination

preparation program’;

c. assisting 'in the identification of

summer int ernships for the [the FAMU College

of Law] law students’;

d. working towards 'the development of the

Shirley Allen Cunningham, Jr., Summer

Academy, providing enrichment opportunities

for prospective law students’;

e. assisting 'the Dean with fundraisin g to

support scholarships and academic programs’;

and,

f. working towards 'the development of the

Center of Agricultural Law.'

At best, these duties are vague and subject to varying degrees

of interpretation as to what actions fulfill those duties.

The re was no evidence that a certain number of hours of

activities related to those duties were required under

Mr. Cunningham’s contract.

36. Neither Petitioner nor his superiors required

Mr. Cunningham to actually be present at the law school or

maintain an y office hours while he was employed. His

performance consisted primarily of telephone conferences with

Petitioner. The evidence did not demonstrate how many or how

often these conferences occurred.

37. Petitioner believes that Mr. Cunningham was perf orming

his assigned duties to some extent because of his electronic

contacts with him. He did not directly supervise him since he

was not present at the law school. In fact, other than his

electronic contacts with Mr. Cunningham, Petitioner did not

conce rn himself with Mr. Cunningham’s performance, but believed

he was performing some of his duties. Petitioner’s attention

was mostly focused on other activities that were more important

to the law school than supervising Mr. Cunningham’s activities

under hi s contract. Petitioner also understood that

Mr. Cunningham's job was to be evaluated not on a daily or

weekly basis, but over a three - year period. Based on

Petitioner’s understanding of the duties of Mr. Cunningham,

Petitioner certified bi - weekly payroll forms reflecting 80

contract hours and an FTE of 1.

38. Bi - weekly payroll certification forms are generated by

FAMU’s main personnel office in Tallahassee and sent to the law

school. These forms automatically list every full - time employee

as having 80 contract hours, regardless of the requirements of

that employee’s contract. These forms are internal payroll

processing forms and are intended to cover many types of

employees at FAMU. The forms do not necessarily reflect the

contract terms of any parti cular employee and especially do not

reflect the contract terms of employees who do not have minimum

or set hours and hold FTE positions. The forms are required to

be certified in order for an employee to receive his or her

paycheck. The certification ap pears to relate to both fixed -

hour employees and contract non - fixed hour employees. For non -

fixed hour employees, like Mr. Cunningham, the certification is

for the effort expended and based on Petitioner's belief that

Mr. Cunningham was performing some wo rk under that contract.

39. Because professional employees such as Mr. Cunningham

and other faculty and administrators of the law school are not

required to actually work a precise number of hours per pay

period, the certification of FAMU's bi - weekly pa yroll

certification document that such employees have worked 80 hours

in the bi - weekly pay period does not represent, and is not

expected to represent, that such employees have worked precisely

that number of hours. Rather, it is a certification that, to

the certifier's knowledge, these professional employees are

performing the duties they are assigned. Therefore,

Petitioner's certification of Mr. Cunningham's work hours on

these forms was not fraudulent or deceptive because he believed

Mr. Cunningham wa s performing some work as contemplated by his

employment arrangement, and he had no evidence that justified a

refusal to approve Mr. Cunningham’s being paid.

40. Indeed, in 2003 after Mr. Cunningham was employed,

Petitioner’s focus was not on Mr. Cunningh am’s activities.

Petitioner’s highest priority was preparation of the self - study

program and getting the law school ready for the first

accreditation inspection by the ABA which was set for November

2003. The inspection was required in order for the law school

to receive provisional accreditation, without which the entering

class of law school students who were now in their third year

and ready to graduate could not take the Florida bar

examination.

41. After the ABA inspection and through the Sprin g of

2004, Petitioner led negotiations with the ABA and made several

appearances before ABA committees regarding provisional

accreditation. Provisional accreditation was finally received

by the law school in the summer of 2004.

42. Additionally, after th e ABA inspection in November, a

significant portion of Petitioner’s time was devoted to ensuring

that a clinical program required of all third - year students was

in place by the fall of 2004 so that the first group of students

to graduate from the FAMU law school could complete their

coursework and graduate. The ABA also required that the program

be in place by Fall, 2004.

43. During 2003 and 2004, Petitioner, because he was in

Orlando, was also the person that building contractors, who were

constructing t he new law school, would come to about problems

with construction of the school. The building was scheduled to

be completed and occupied by the law school by 2005. Petitioner

often functioned as the liaison between the contractors and FAMU

personnel in T allahassee.

44. Unfortunately, in July of 2004, Petitioner’s father,

whom he was extremely close to and testified emotionally about

at the formal hearing, became seriously ill. His father

eventually died in October 2004. Dealing with his father’s

illnes s and death both emotionally and legally, significantly

interfered with Petitioner’s performance of his duties through

January, 2005. In fact, Petitioner failed to perform required

evaluations of employees for the 2004 academic year. Likewise,

he did not materially supervise Mr. Cunningham.

45. Petitioner admits that in the 20 months of employment,

Mr. Cunningham failed to accomplish any of the goals set forth

in the July memorandum referenced above. Mr. Cunningham did not

generate any fundraising monie s for the College of Law, did not

identify any summer internships for FAMU law students, did not

conduct any monthly lectures on the legal profession, never

developed the Shirley Allen Cunningham, Jr., Summer Academy,

never developed the Center of Agricult ural Law and never

developed or implemented a bar examination preparation program

at the College of Law. These matters were discussed between

Petitioner and Mr. Cunningham. However, no tangible results

were forthcoming from those discussions and in the f inal

analysis, did not result in any material value to FAMU.

46. In January 2005, FAMU’s administration and

Petitioner’s superiors changed. President Gainous left the

University. Dr. Castell Bryant became the interim president of

FAMU. She did not hav e any knowledge regarding the unique

circumstances of Mr. Cunningham’s employment. In light of the

University's existing fiscal condition, Dr. Bryant instituted a

University - wide payroll audit on April 1, 2005. As part of the

audit, every University empl oyee (including President Bryant)

was required to physically appear and execute an affidavit

attesting to the performance of his or her duties. The audit

was designed, in part, to uncover situations where an individual

was being paid but not performing se rvices for that pay.

47. An email was sent from Dr. Bryant’s office to all

University employees, including Mr. Cunningham, setting forth

the requirements of the audit. Petitioner, also, contacted

Mr. Cunningham and requested that he come to the College of Law

campus in Orlando to comply with the audit. Mr. Cunningham did

come to the College of Law and signed an affidavit attesting

that he was performing his duties. Petitioner never discussed

the particulars of Mr. Cunningham’s employment with Dr. Bryan t

prior to or after the audit.

48. While Mr. Cunningham was at the law school for the

payroll audit on April 1, 2005, he and Petitioner set up a

meeting for April 21, 2005, to discuss implementation of some of

his job duties that had been delayed bec ause they could not be

accomplished until the law school moved into its new building in

Fall 2005. Petitioner made an entry on his personal calendar

for April 21 at 2:00 pm. Petitioner did not tell his assistant

about the meeting. Therefore, the meeting did not appear on

Petitioner’s master calendar, maintained by his assistant.

49. Subsequent to the audit, the University’s employment

of Mr. Cunningham was raised when Dr. Bryant received an

anonymous Whistleblower complaint regarding Mr. Cunningham. T he

complaint stated:

As part of your payroll audit, you may want

to take a look at the law school records

involving Shirley Cunningham. According to

public records for the last two years he has

been on a salary of $100,000 per year as a

faculty member but has never taught a

course, been to a faculty meeting or

occupied an office at the law school.

50. In addition, an anonymous Whistleblower complaint was

also filed with the State of Florida, Department of Financial

Services, regarding Mr. Cunningham .

51. Consequently, on April 18, 2005, Dr. Bryant requested

that the Whistleblower allegations be investigated by the FAMU

Inspector General, Michael Brown. After conducting some

preliminary research, Mr. Brown discovered some discrepancies

with Mr. Cun ningham's employment documentation. Mr. Brown then

telephoned Petitioner to arrange a meeting to clarify

Mr. Cunningham's employment information. Petitioner could not

meet with Mr. Brown because he was traveling back to Orlando

from Tallahassee. Mr. Bro wn immediately reported his findings

to Dr. Bryant.

52. Coincidentally, on April 21, 2005, the following day,

Mr. Brown traveled to the law school in Orlando for an

unannounced visit to the school to further his investigation of

the complaint. Mr. Brown hoped to meet with Petitioner. This

was also the same day that Mr. Cunningham was to meet with

Petitioner at the law school.

53. Mr. Brown arrived at the law school at 8:55 a.m. He

met with Petitioner’s assistant. She informed Mr. Brown that

Peti tioner was at a meeting outside the law school but she

thought that he would return to the office in 30 minutes.

Petitioner’s assistant only intended her reference to 30 minutes

to be an estimate. She did not know that Petitioner would

return in 30 minut es, but only based her estimate on

Petitioner’s usual pattern. Unfortunately, Petitioner’s meeting

lasted all morning and into early afternoon. It was in an area

where cell phone communication was limited to outside the

building at which the meeting was being held. At some point,

Petitioner’s assistant was able to talk to Petitioner on his

cell phone and informed him that Mr. Brown was at the law school

and that he had requested to see a list of documents.

Petitioner instructed his assistant to provide Mr. Brown with

anything that he asked for.

54. On multiple occasions throughout the morning and early

afternoon, Mr. Brown continued to inquire about Petitioner’s

arrival, and was informed each time that his arrival would be

soon. Petitioner never d irectly contacted Mr. Brown and

Mr. Brown never directly contacted Petitioner. While waiting

for Petitioner, Mr. Brown was busy going through the documents

he had requested be provided to him.

55. At about 12:15 p.m. Petitioner, while on lunch break,

sp oke with Associate Dean Saleem by phone and informed him that

Mr. Cunningham would be at the law school for a meeting in about

30 minutes. The meeting had been scheduled by Petitioner

earlier in the week. Dr. Saleem informed Mr. Brown of this

communicati on. Mr. Brown, accompanied by the Director of

Security, Bruce Henson, immediately went to Mr. Cunningham's

office and utilized the master security key to enter the office.

56. Upon entering the office, Mr. Brown found

Mr. Cunningham sitting behind the d esk with a rolling travel

bag. Mr. Cunningham stood up, grabbed his coat, greeted

Mr. Brown, and exited the office. Mr. Brown observed that the

office appeared to have been vacant and not used for some time

because the desk and bookshelves were covered w ith a thick layer

of dust and the computer had not been used.

57. After his meeting, Petitioner returned to the law

school and met with Mr. Brown around 1:00 or 1:30 pm. Since

Mr. Cunningham had left, Petitioner was not able to meet with

him.

58. In light of his inability to meet with Petitioner and

the suspicious arrival and encounter with Mr. Cunningham,

Mr. Brown concluded that Petitioner, as well as others at the

law school, were attempting to avoid him and impede his

investigation. Mr. Brown believed that the delay he felt he

experienced was a ploy to allow Mr. Cunningham time to travel to

the law school. Mr. Brown communicated his conclusion of being

"stalled" to the FAMU General Counsel, Elizabeth McBride and

eventually to Dr. Bryant. However, other than the coincidence

of Mr. Cunningham’s presence at the law school, there was no

evidence that Mr. Brown was thwarted or otherwise stalled in his

investigation. He was timely provided everything he asked for

and was given access to the p laces he requested to access. He

apparently was occupied with his investigation the entire time

he was there. It is not credible that such an inept ploy to

place Mr. Cunningham at the law school was perpetrated through

some conspiracy by the staff at the law school or Petitioner.

In fact, given the circumstances of his employment,

Mr. Cunningham was not required to be present at the law school.

59. After receiving advice from the Department of

Financial Services Investigators, Mr. Brown confiscated the

computers of Mr. Cunningham, Petitioner’s assistant and

Petitioner, along with certain documents. The evidence was

subsequently turned over to both state and federal prosecutors

for related criminal investigations. Mr. Cunningham is

represented by Steph en Dobson, Esquire, and is the subject of a

criminal investigation in the United States District Court for

the Northern District of Florida. As a result, Mr. Brown's

investigation of Mr. Cunningham has been suspended pending the

outcome of the criminal ma tter. Because of the criminal

investigation, Mr. Cunningham, through his attorney, did not

testify at his scheduled deposition, or at the hearing, in this

case, based on his Fifth Amendment privilege.

60. Prior to returning to Tallahassee, Mr. Brown

int erviewed Petitioner regarding Mr. Cunningham. In response to

Mr. Brown's request for any information substantiating

Mr. Cunningham's employment, Petitioner provided Mr. Brown with

a packet that he had prepared. The packet included a memorandum

and attach ments. The memorandum was entitled "Job

Responsibilities of Shirley Cunningham." In the poorly worded

and somewhat vague memorandum, Petitioner discusses a bar

preparation course that was implemented, a summer conditional

program that was "getting off t he ground th[a]t year," and

several fundraising commitments that the law school received

that year. Throughout the memorandum, Petitioner refers to the

"we" as being responsible for these efforts. Mr. Brown

understood Petitioner's memorandum to be refere ncing

collaborative efforts between he and Mr. Cunningham. The use of

the word “we” is just as easily understood to be referring to

the law school. In reality, Mr. Cunningham was not directly

responsible for any of the efforts referred to in Petitioner’s

memorandum, but had been involved with limited discussions with

Petitioner regarding some of the items in that memorandum. The

language of the memorandum appears to be Petitioner’s attempt

to, not so much cover - up Mr. Cunningham’s employment and

performa nce as, to, through vague use of language, dodge the

impending storm he saw coming at him over that employment.

Petitioner, also orally informed Mr. Brown that he had no

documentation showing the activities of Mr. Cunningham and that

Mr. Cunningham was no t expected to be present at the law school

in order to perform his duties. Petitioner also told Mr. Brown

that FAMU’s administration had been aware of the conditions of

Mr. Cunningham’s employment.

61. Upon returning to Tallahassee, Mr. Brown met with

Dr. Bryant and General Counsel McBride and discussed his

investigation in more detail. Mr. Brown also provided them with

a copy of the materials Petitioner gave him referencing

Mr. Cunningham's job responsibilities. Based on his

investigation, Mr. Brown concluded that Mr. Cunningham had not

performed any services for the University to justify his

$100,000 per year salary. Further, Mr. Brown felt that

Petitioner had engaged in deception by executing

Mr. Cunningham's payroll certifications and mailing his

paychecks to Kentucky. In addition, Mr. Brown concluded that

Mr. Cunningham was not responsible for any of the efforts

delineated in Petitioner’s memorandum and that Petitioner had

engaged in fraud or was, at a minimum, complicit in the fraud of

Mr. Cunn ingham. Mr. Brown relayed these conclusions to

Dr. Bryant and Ms. McBride, and further informed them that there

was no policy at FAMU that would allow for Mr. Cunningham's

telecommuting. However, the evidence did not establish that

there was a policy aga inst such telecommuting either.

62. The following day, April 22, 2005, and for the first

time since Mr. Cunningham's employment, Petitioner refused to

sign the Payroll Certification Form and indicated that

Dr. Bryant would have to approve Mr. Cunningham' s work.

Petitioner refused to certify the form because he knew the

matter was being investigated by the University and the

authenticity of Mr. Cunningham’s performance was in question.

He also knew the current administration no longer sanctioned the

cond itions of Mr. Cunningham’s employment. The Certification

Form was forwarded to Dr. Bryant. Dr. Bryant advised Petitioner

that, as Dean of Law School, it was his responsibility, not

hers, to ensure that the payroll certifications were accurate

and sent th e form back to Petitioner.

63. Subsequently, Dr. Bryant contacted Petitioner and

requested information about Mr. Cunningham's performance at the

law school. Apart from the memorandum she received from

Mr. Brown, Petitioner never provided her any additio nal

documentation related to Mr. Cunningham. Because Mr. Cunningham

had been paid from State funds but had not performed any

verifiable work, Dr. Bryant considered Mr. Cunningham's

employment fraudulent and that Petitioner had participated in

that fraud o r been grossly incompetent in his supervision of

Mr. Cunningham and certification of the payroll records based on

that supervision. Importantly, the evidence at the hearing did

not demonstrate that Mr. Cunningham’s contract was unlawful, but

that his perf ormance was not verified by Petitioner. The lack

of evidence in that regard was due to the lack of testimony from

Mr. Cunningham, who did not testify at the hearing.

64. On June 27, 2005, Petitioner was placed on

administrative leave with pay and provid ed an opportunity to

address the allegations of misconduct and/or incompetence

against him. Dr. Bryant placed Petitioner on administrative

leave because she believed it to be in the best interests of the

University, law school and students. She did not w ant the new

law school students to believe that the University in any way

condoned not abiding by the law. Petitioner denied any fraud on

his part but did not offer any evidence that would refute the

allegations that he knowingly permitted Mr. Cunningham to be

employed at the University while not performing any work.

65. Accordingly, Petitioner was terminated by Dr. Bryant

by letter dated September 19, 2005. Dr. Bryant reached this

decision based upon the documentation that had been provided to

her, the interviews of Petitioner and her consultations with

General Counsel McBride, Inspector General Brown, the FAMU Human

Resource Director and Provost Larry Robinson.

66. Dr. Bryant did not consider terminating Petitioner as

Dean, but allowing him to cont inue as a professor, because she

did not believe it was in the best interest of the law school or

its students. Prior to terminating Petitioner, however,

Dr. Bryant met with Petitioner in Orlando and provided him an

opportunity to resign. Petitioner decl ined to resign because he

did not believe that he had committed any fraudulent acts, but

admitted he had been negligent in supervising Mr. Cunningham.

67. Petitioner’s termination letter, dated September 19,

2005, provides the reasons for his termina tion and states, in

part:

This action is being taken due to your engaging in

conduct which adversely affected the functioning of

the University and failing to adhere to established

University obligations appropriate to your

appointment. Specifically, you knew or should have

known:

1. The duties and responsibilities designated for

Shirley Cunningham, Jr. (Cunningham), in your

memorandum dated July 10, 2003, failed to have any

measurable standards.

3 3

2. There is a lack of supporting documentation

demonstra ting Cunningham’s involvement in or “working

towards” any duties and responsibilities outlined in

the letter at the College of Law.

3. That Cunningham failed to present and failed to

perform job duties and responsibilities as a full - time

employee at the College of Law.

4. Your certification of payroll documents for

Cunningham, to receive pay warrants, or payroll

checks, from the University during the time period

August, 2003 through April, 2005 was improper.

5. Pay warrants or payroll checks were mail ed from

your office at the College of Law to Cunningham in the

State of Kentucky, even though Cunningham failed to

present or perform any documented duties and

responsibilities to justify the receipt of a warrant

or check for any pay period.

6. The failu re of your staff to provide the

University’s Inspector General with immediate access

to the office space designated for the documents

relative to the employment of Cunningham delayed and

hampered the Inspector General’s investigation of the

complaint regar ding Cunningham.

68. In this case the evidence does not demonstrate that

Petitioner had an intent to defraud the University. After all,

Petitioner’s then current superiors were aware of the terms of

Mr. Cunningham’s employment, that he was in a visitin g status

and that he would continue his law practice in Kentucky. The

evidence does demonstrate that Petitioner was grossly negligent

in his poor supervision of Mr. Cunningham and his willingness to

accept the discussions he had with Mr. Cunningham as evi dence

that Mr. Cunningham was fulfilling his contract with the

University. By any terms, the contract with Mr. Cunningham was

a bad contract because of its lack of specificity especially

since the contract was developed by an attorney and Dean who was

res ponsible for protecting the University. It ultimately was

not in the best interest of the University and should have been

questioned by Petitioner earlier than it was. However, the

conduct for which Petitioner was terminated arose out of his

duties as De an, and not as a professor, since Petitioner never

performed any professorial duties at FAMU. On the other hand,

Petitioner’s year and a - half - long negligence calls into question

his competence and judgment as a professor who might have to

supervise and in struct students in the law, as well as protect

the University’s interests in any professorial capacity.

Admittedly, Petitioner had more important matters than

Mr. Cunningham, related to the law school, that occupied his

time. Moreover, the death of his f ather certainly affected the

performance of his supervisory functions in 2004 and January

2005. By February or March 2005, Mr. Cunningham’s employment

should have raised red flags with any administrator, like

Petitioner, responsible for protecting the int erests of the law

school and the University. Given these facts, Petitioner’s

termination should be upheld.

CONCLUSIONS OF LAW

69. The Division of Administrative Hearing has

jurisdiction of the parties to and the subject matter of these

proceedi ngs. §§ 120.57(1) and 120.569, Fla. Stat.

70. The Respondent has the burden to establish by a

preponderance of the evidence that there was just cause to

terminate the Petitioner in accordance with Florida

Administrative Rule Section 6C3 - 10.232(3). See also

§ 120.57(j), Fla. Stat.

71. Rule 6C3 - 10.230(5)(a) provides that:

The President or President's designee may discipline a

faculty or A & P employee for just cause in accordance

with the provisions set forth herein:

(a). Just Cause shall be defined as:

1. Incompetence; or

2. Misconduct.

(f) Dismissal - The employee may be dismissed during

the term of the employment contract for just cause,

regardless of tenure status where it appears to the

President or President's designee that an emp loyee's

action adversely affects the functioning of the

University or jeopardizes the safety or welfare of the

employee, other employees or students.

72. In Allen v. Fla. A & M Univ. , 2004 WL 1269181 (DOAH

2004), a tenured professor at FAMU was terminat ed for sexual

harassment. In construing the identical standards of just cause

applicable in the case sub judice (Rule 6C3 - 10.230), the

Administrative Law Judge stated:

Black's Law Dictionary defines 'misconduct' as 'a

transgression of some established de finite rule of

action, a forbidden act, a dereliction from duty,

unlawful behavior, willful in character, improper or

wrong behavior.'

In light of the foregoing definition, the Administrative Law

Judge concluded that sexual harassment "certainly fit[] w ithin

the dictionary definition of 'misconduct' and upheld the

dismissal." Id.

73. In this case, on September 19, 2005, Petitioner was

terminated. Petitioner's dismissal letter outlines six areas of

misconduct and/or incompetence that constituted just cause.

These reasons involved the manner in which Petitioner negotiated

and documented Mr. Cunningham's employment, supervised his

employment, certified his time records and responded to the

Inspector General's Investigation. The stated reasons als o

related to how Petitioner’s actions failed to protect the

interests of the University.

74. Petitioner, an attorney, negotiated duties for

Mr. Cunningham that could not be measured and that resulted in a

very bad contract for the University and did no t produce any

material value to the University.

75. In the 20 months that Mr. Cunningham was employed,

Petitioner could only recall having two or three meetings with

him. Petitioner’s contact with Respondent was primarily through

electronic communicat ion. The evidence did not show the amount

of communication between Petitioner and Mr. Cunningham.

However, Petitioner admits that he never received any work

product from Mr. Cunningham, that Mr. Cunningham failed to

accomplish any aspect of his July 10, 2003, position duties and

did not provide any value to the University the entire time he

was employed. Petitioner also admits that he never evaluated

Mr. Cunningham during the almost two years of Mr. Cunningham's

employment. Therefore, even though Petiti oner had no direct

knowledge of Mr. Cunningham's lack of performance, at a minimum,

he should have protected the University’s interests and found

out what Mr. Cunningham was doing to earn his salary.

Petitioner's failure to supervise Mr. Cunningham consti tutes a

significant dereliction of duties.

76. Additionally, Petitioner submitted a memorandum and

documents to Inspector General Brown that, at best, did not

address Mr. Brown’s questions about Mr. Cunningham’s performance

in an effort to avoid answerin g directly Mr. Brown’s inquiry.

These documents were presented in response to Mr. Brown's

request for documentation concerning Mr. Cunningham's work, and

were entitled by Petitioner as "Job Responsibilities of Shirley

Cunningham." Petitioner admits that the memorandum was "an

effort to address the job responsibilities of Mr. Cunningham."

The memorandum shows a lack of forthrightness about

Mr. Cunningham’s duties and does not comport with what is

expected of either a law school dean or professor.

77. The removal of Petitioner from his position as a

tenured professor is further substantiated by remembering the

high ethical and professional standards the law requires and by

considering the responsibility of training future lawyers in

this regard as a pri vilege not to be taken lightly. See Fla.

State Univ. v. McHugh , 2000 WL 292137 (DOAH 2000) (holding that

conduct which interferes with the effective functioning of the

FSU law school constitutes just cause). Petitioner’s year and

a - half - long negligence ca lls into question his competence and

judgment as a professor who might have to supervise and instruct

students in the law, as well as protect the University’s

interests in any professorial capacity.

78. The removal of Petitioner's tenure for actions take n

while serving as Dean is supported by Cooper v. Williamson

County Bd. Of Educ. , 803 S.W.2d 200 (Tenn. 1990). In Cooper , a

school principal, who was also a tenured teacher, was dismissed

in both capacities on grounds of incompetence, inefficiency and

neg lect of duty, among others. Like Petitioner, Cooper had

engaged in the actions leading to his termination while serving

in his administrative capacity. In upholding his termination

from his tenured position as well, the court reasoned that:

where the c harges reflect adversely on

plaintiff's ability to subject himself to

the authority of superiors, and on his

ability to perform work assignments in an

efficient and competent manner, the charges

properly can and should be the bases of his

dismissal, both a s a principal and as a

[tenured] teacher.

Cooper , 803 S.W.2d at 202.

79. Here, like Cooper , the charges against Petitioner

reflect on his competency as a tenured professor. Here, like in

Cooper, Petitioner's actions as Dean justified his dismissal in

b oth capacities. Accordingly, the Board's dismissal and removal

of Petitioner's tenure for just cause should be upheld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board issue a final order terminating

Respondent's employment.

DONE AND ENTERED this 12th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 2006.

COPIES FURNI SHED :

Thomas Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Robert L. Norton, Esquire

Allen, Norton & Blue, P.A.

121 Majorca, Suite 300

Coral Gables, Florida 33134

Robert E. Larkin, III , Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Elizabeth T. McBride, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 - 3100

Dr. Castell V. Bryant, Interim Pre sident

Florida A & M University

400 Lee Hall

Tallahassee, Florida 32307 - 3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Re commended Order should be filed with the agency that

will issue the final order in this case.