06-000627 Florida Agricultural &Amp; Mechanical University vs. Dana Barnes Status: Closed Recommended Order on Wednesday, August 2, 2006.

Summary: Respondent`s refusal to stop taping the meeting did not constitute insubordination under the circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AGRICULTURAL & )

MECHANICAL UNIVERSITY , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 0627

)

DANA BARNES , )

)

Respondent. )

)

RECOMMENDED ORDER

Up on due notice, a disputed - fact hearing was held in this

cause in Tallahassee , Florida, on April 21, 2006 , before Ella

Jane P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anto neia Roe, Esquire

David C. Self, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

For Respondent: Ben R. Patterson, Esquire

Patterson and Traynham

Post O ffice Box 4289

Tallahassee, Florida 32315 - 4289

STATEMENT OF THE ISSUE

Whether Respondent was properly terminated by Petitioner

for just cause or is entitled to reinstatement with back pay and

benefits.

PRELIMINARY STATEMENT

This cause arises f rom a referral of the case by Florida

Agricultural and Mechanical University (FAMU) to the Division of

Administrative Hearings on or about February 17, 2006.

By this referral and the absence of any pre - trial motions

in opposition to the initiating "Petiti on Against Termination of

Employment, Demand for Evidentiary Hearing," FAMU has submitted

to the jurisdiction of the Division of Administrative Hearings ,

pursuant to Section s 120.569 and 120.57(1), Florida Statutes.

A disputed - fact hearing was held April 21, 2006.

At the commencement of hearing, Mr. Barnes' Motion in

Limine and FAMU's Motion in Limine were each argued. Both

Motions were denied without prejudice.

Because by this case, FAMU seeks to terminate Mr. Barnes

and such termination would change t he status quo , it was orally

ruled , over objection, that FAMU had the duty to go forward and

prove its entitlement to terminate Mr. Barnes . The parties

stipulated that the burden of proof herein was “ by a

preponderance of the evidence. ” See Florida Depar tment of

Transportation v. J. W. C., Inc. , 396 So. 2d 778 (Fla. 1 st DCA

1981)

Eight Joint Exhibits were admitted in evidence. 1/

Petitioner FAMU presente d the oral testimony of John

Cot ton, Dr. Kenneth Perry, and Dr. Ja n ie Greenleaf , 2 / and had two

exhibit s admitted in evidence.

Respondent testified on his own behalf and had three

exhibits admitted in evidence.

A Transcript was filed on May 12, 2006. By agreement, the

parties each filed Proposed Recommended Orders on May 16, 2006.

On May 30, 2006, Respo ndent filed an Amended Proposed

Recommended Order, amended only to include Transcript citations.

No motion to strike same was filed by Petitioner, and so

Respondent's Amended Proposed Recommended Order has been

considered in lieu of the original.

FINDINGS OF FACT

1. Respondent is a 48 - year - old man who was employed

between 19 97 and August 15, 2005 (eight years), by Petitioner

FAMU. During that period, he had attained permanent status in

the classifications of Computer Program m er and Senior Computer

P rogram m er in Petitioner FAMU’s Information Technology (IT)

Services Unit.

2. Respondent is a member of an AFSCME union bargaining

unit.

3. Petitioner reorganized its IT unit in 2004 - 2005. As a

result, several employees of that unit, including Respo ndent ,

were target ed for lay off. FAMU’s standard procedure for

advising employees for the first time that they were being laid

off was to call them to the p erson nel o ffice.

4 . After returning to work from sick leave on August 15,

2005, Respondent wa s informed that he was to report to the

personnel office that afternoon.

5 . Four or five people already had been laid off , and

Respondent anticipated that he would be laid off.

6 . Indeed, Respondent’s position as a Senior Computer

Programmer An alyst had been eliminated as a result of the

reorganization, but he did not know this in advance of the

August 15, 2005, meeting.

7 . With apprehension, Respondent unsuccessfully attempted

to secure a union representative to accompany him to the

aft ernoon meeting. He subsequently secured a tape recorder from

his home , with the intent of recording the meeting.

8 . The meeting turned out to be scheduled in the off ice of

FAMU’s Human Resources Administrator. When Respondent arrived

at the meeting loca tion, there were two campus police officers,

John Cotton and Audrey Alexander, present. Also in attendance

were Dr. Janie Greenleaf, FAMU Human Resources Administrator;

Dr. Kenneth Perry, at that time Associate Vice - President and

Chief Technology Officer ; and Howard Murphy, the IT consultant

hired as special assistant to the university president .

Mr. Murphy had done the assessment leading to the layoffs , and

it was he who had recommended which employees to lay off.

9. The meeting was intended by the administrat ors as an

initial layoff meeting, wherein Respondent would be presented

with a letter advising him that he was being laid off as of that

date and of his rights under the rules governing layoffs (the

Notice of Layoff) ; he would sign another lett er acknowledging

that he had received the Notice of Layoff; and any questions he

had would be answered by those present .

10. Upon entering Dr. Greenleaf’s office, Respondent was

instructed to take a seat, and he did so. Dr. Greenleaf laid a

Notice of Layoff (Exhibit P - 2) , dated August 15, 2005, on a

table in front of him.

11. Respondent then removed his tape recorder from an

attaché case . This movement appears to have put the other

attendees on edge, because terminations , for whatever reason ,

can turn violent.

12. Respondent then placed the recorder on the table, and

announced that he intended to record the meeting. He stated

that anyone who did not want to be recorded could leave .

13. Respondent test ified that he had assumed that his

behav ior would cause the administrators to end the meeting and

do what they intended to do without any input from him. (TR - 74)

14. Instead, Dr. Greenleaf told Respondent that he could

not record the meeting because she did not want to be recorded.

She told h im to turn off his tape recorder. Apparently, Dr.

Greenleaf was the only attendee who objected out loud to being

taped. Respondent would not turn off his recorder .

15. Respondent believed that he had a right to tape the

meeting because of his status as a University Support Personnel

Services (USPS) employee. He testified that during his

employment with FAMU, he had attended workshops where he had

been allowed to record the meeting for accuracy and make his

written report to his superiors from the taped record . He also

testified that he had recorded “in the open” a conversation with

a superior about a promotion . He further testified that he had

been in meetings and hearings with an AFSCME union

representative when administrative personnel asked them to turn

off the recorder and told them when they could turn on the

recorder. In these instances, there were apparently “on the

record” and “off the record” conversations. (TR 73 - 74) There

is the suggestion in Respondent’s testimony that he believed

that, in the absence of a union representative, he was entitled

to tape any meeting.

16. More than once in the August 15, 2005, meeting,

Respondent stated to the assemblage that he had a right “as

USPS” to record the meeting.

1 7 . After reviewing either a sta tute book or labor union

book, Dr. Greenleaf advised everyone present that the meeting

could not be recorded without all attendees’ consent.

1 8 . Dr. Greenleaf advised Respondent that he could take

notes; have someone present to transcribe the meeting; or have

an AFSCME union representative present; but that she did not

wish to be recorded.

1 9 . From the evidence as a whole, it appears that

Respondent believed that since he could not get a union

representative there at that time, his only option was to tap e

the meeting, but there is no evidence that he requested to

reschedule the meeting for a time when he could be accompanied

by a union representative.

20 . Dr. Greenleaf repeatedly advised Respondent that he

could not record the meeting and/or ordered hi m to turn off his

tape recorder .

2 1 . Respondent repeatedly refused to cease taping and

repeatedly advised the assemblage that anyone who did not wish

to be recorded could leave.

2 2 . At least once, Dr. Greenleaf advised Respondent that

his refusal cou ld be construed as insubordination.

2 3 . Apparently, the volume of both Dr. Greenleaf’s and

Respondent’s voices became elevated.

2 4 . Respondent’s affect was described by all the witnesses

who testified as “defiant,” “ agitated,” “ adamant,” persistent,”

a nd/or “insistent.”

2 5 . Dr. Greenleaf then interrupted the meeting and asked

Respondent to wait outside. Dr. Greenleaf and Dr. Perry

consulted and decided that Respondent was being insubordinate.

A revised letter dismissing Respondent for insubordinati on (the

Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr.

Perry.

2 6 . When he was permitted to return to Dr. Greenleaf’s

office , Respondent turned on his tape recorder again. Dr.

Greenleaf had removed the original layoff letter from the tabl e

and delivered to Respondent the Notice of Di smissal for

insubordination , also dated August 15, 2005. 3/

2 7 . Respondent requested a copy of the original Notice of

Layoff , and was informed by Dr. Greenleaf that he was now

terminated for insubordination and the Notice of Layoff was

withdrawn. Respondent was not provided with a copy of the

Notice of Layoff.

2 8 . Respondent was ultimately conducted off campus by

Officers Cotton and Alexander without further incident.

2 9 . Although Respondent was dismissed f rom FAMU , effective

A ugust 15, 2005, he remained on the University’s payroll through

August 29, 2005, approximately two weeks following his

dismissal. The Notice of Dismissal retained the two week pay

provision that had been part of the Notice of Layoff.

30 . Subsequent to his termination by FAMU, Respondent has

sought other employment, but has been unsuccessful.

CONCLUSION S OF LAW

3 1 . The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this

proceeding, pursuant to Sections 120.569 and 120.57 (1), Florida

Statutes.

3 2 . The parties have stipulated that the burden of proof

herein is “ by a preponderance of the evidence ” to show that just

cause existed to terminate Respondent. 4/

3 3 . FAMU’s Proposed Recommended Or der acknowledges that

FAMU is a public agency, subject to Section 286.011, “Florida’s

Government in the Sunshine Law.”

3 4 . The undersigned also notes that neither layoff

materials or disciplinary actions against a permanent FAMU

employee are specifically excluded from Chapter 119, Florida

Statutes, “The Public Records Act.”

3 5 . FAMU’s Proposed Recommended Order cites the following

rules: “Florida Board of Governors’ Regulation 6C - 5.955 (1)

(c)” 5/ and “Florida A & M University Regulation s 10.337 (1),

(1) ,(b), and (2)(c).” 6/

3 6 . Th ose rules and others which may be applicable to this

case include :

6C - 5.955 (1)(c) - Separations From

Employment and Layoff -

(1) Separations from employment shall

be administered consistent with the

following provisions.

***

(c) The Chief Administrative Officer

may dismiss an employee for just cause in

accordance with University rules, policies

or procedures. (Joint Ex 7)

6C3 - 10.337 - Disciplinary and Separation

from Employment Actions for Uni versity

Support Personnel System Employees.

( 1) Scope and Purpose – The purpose of

this rule is to establish minimum standards

for supervisors and administrators to use in

administering discipline for various types

of offenses committed by a University

Su pport Personnel System (USPS) employee.

(a) The provisions of this rule are

supplemented by Rules 6C - 5.950 and 6C - 5.955

F.A.C. and the respective collective

bargaining agreement for the employees who

are represented by a collective bargaining

agent.

(b) The following guidelines and

standards for performance shall govern the

manner and extent to which disciplinary

action is taken, except that greater or

lesser penalties may be imposed, dependent

upon the seriousness of the offense and any

aggravating or mi tigating circumstances.

The Director of University Personnel

Relations provides guidance to University

department heads and supervisors in the

administration of discipline within these

standards.

(c) Delegation of Authority —

The authority to discipline e mployees

resides in the President or President’s

designee . The President has further

delegated the authority to department heads

and immediate supervisors to administer

written reprimands. All other forms of

discipline are administered in writing by

the President or the President’s designee.

(2 ) Types of Disciplinary Action

(a) Written Reprimand — For more serious

or repeated cases of rules infractions, the

supervisor, warns the employee in writing of

the specific conduct or performance standard

tha t was violated and places the employee on

notice of the next level of discipline if

the offense is repeated or the performance

fails to improve.

(b) Suspension - This is a severe form

of discipline which may be administered as a

step in progressive discipli ne following a

written reprimand or may be administered as

the first discipline for the commission of a

serious offense. Suspension is defined as

an action taken by the University to

temporarily relieve the employee of duties

and place the employee on lea ve without pay.

In an extraordinary situation, such as when

the retention of a permanent status USPS

employee is likely to result in damage to

property or is likely to result in injury to

the employee, a fellow employee, or some

other person, the employee may be suspended

immediately.

(c) Dismissal - This is the final and

most severe form of discipline that may be

imposed upon an employee. Dismissal is

de f ined as the action taken by the

University to separate an employee from the

USPS when continued employ ment would be

c ounter - productive to t he operations and

welfare of the University. Dismissal may be

appropriate for the first discipline for a

serious offense or as the final step in

progressive discipline.

(3) Offenses - Standards of Disciplinary

Action. The most common occurrences are

listed below, but the list is not all -

inclusive. The disciplinary action for the

listed offenses have been established to

help assure that employees who commit

offenses receive similar treatment in like

circumstances .

***

(r) Insubordination - A deliberate and

inexcusable refusal to obey a reasonable

order which relates to an employee’s job

function. This includes an unwillingness to

submit t o authority, failure to follow oral

or written instructions from a superi or or

an expressed refusal to obey a proper order,

as well as a deliberate failure to carry out

an order.

1. First occurrence - Written Reprimand

2. Second occurrence - Five (5) days

suspension or dismissal

3. Third occurrence - Dismissal (Joint

Exhibit 6; E mphasis supplied for ease of

reference)

3 7 . This case, of necessity, also requires consideration

of Section 934.03, Florida Statutes, which provides, in

pertinent part, as follows:

934.93 Interception and disclosure of

wire, oral, or electronic communic ations

prohibited. —

(1) Except as otherwise specifically

provided in this chapter, any person who:

(a) Intentionally intercepts,

endeavors to intercept, . . . any wire,

oral, or electronic communication;

***

shall be punis hed as provided in subsection

(4).

3 8 . Respondent submits that because FAMU’s activities are

subject to “government in the sunshine,” and the other attendees

at the August 15, 2005 , meeting had no reasonable expectation of

privacy, Respondent’s terminat ion for insubordination because he

p ersist ed in tape recording the layoff meeting was without just

cause. Respondent further asserts that Dr. Greenleaf’s order to

turn off his tape recorder was unrelated to the duties of his

job function, and therefore, R espondent’s refusal to turn off

his tape recorder , in defiance of Dr. Greenleaf’s direct order,

could not constitute “insubordination” as defined by rule.

Finally, Respondent asserts that even if his actions constituted

insubordination as defined by rule, his behavior on August 15,

2005, constituted his first and on l y act of insubordination, and

therefore, termination was a grossly excessive discipline. He

seeks reinstatement, back pay, and benefits. In support of

these positions, Respondent submits the case of Dept. of

Agriculture v. Edwards , 654 So. 2d 628 (Fla. 1 st DCA 1995).

3 9 . In Edwards , a law enforcement officer employed by the

Florida Department of Agriculture and Consumer Services , was

upset about being transfer red . He decided to tape record his

supervisor. The supervisor learned what was afoot and assigned

several officers to investigate . The se officers engaged the

aggrieved employee in conversation in one of their offices. A

bulge in the employee’s pocket turned out to be a voice -

activat ed tape recorder , which had recorded the disciplinary

investigation by the other officers. The employee was

criminally prosecuted by the State Attorney for violating

Section 934.03, Florida Statutes (intercepting or endeavoring to

intercept an oral commun ication), and the employing agency

terminated him for violating agency rules, regulations, policies

or procedures, and for exceeding his law enforcement authority.

The Public Employee Relations Commission (PERC) ordered the

employee reinstated. In the fo llowing terms, the First District

Court of Appeal upheld PERC’s final order which had adopt ed its

hearing officer’s order :

. . . We conclude that the hearing officer

was justified in finding that any subjective

expectation of privacy held by Edwards’s

supe rvisors was not reasonable under the

circumstances of this case. We reach this

conclusion based not on the officers’

suspicion that Edwards would record their

statements, but because of the number of

persons present when the statements were

made, the plac e chosen for the interview,

and the very nature of that interview. We

affirm the Commission’s final order

directing Edwards’ s reinstatement, and

awarding back pay, attorney’s fees, and

costs. We do so, because we conclude the

record contains competent, substantial

evidence to support the Commission’s

determination that the Department did not

have cause to discipline Edwards for a

violation of Section 934.03(1), Florida

Statu t es, or for exceeding his law

enforcement authority. It appears the

protections afforded by S ection 934.03 are

inapplicable in the circumstances of this

case. For an oral communication to fit

within the purview of chapter 934, it must

be “uttered by a person exhibiting an

expectation that such communication is not

subject to intercep tion under circumstances

justifying such expectation. ” . . . The

Commission was entitled to find that

supervising law enforcement officers engaged

in the investigation and interrogation of a

subordinate officer had no subjective

expectation of privacy in t heir statements.

Since the protections of Section 934.03 do

not apply to the oral communications here at

issue, the Department has failed to show

cause for terminating Edwards’s employment,

either for a rule violation or for exceeding

his law enforcement authority.

40 . FAMU contends that three elements are necessary to

bring the instant case within the parameters of the holding in

Edwards which concluded that : no expectation of privacy existed

for Edwards because of the number of people present; the pl ace

chosen; and the nature of the interview. FAMU submits that

because there is no evidence herein that the Respondent was, or

thought he was , involved in a disciplinary matter, the third

element described as the “nature of the interview” is missing

and R espondent is subject to termination . This distinction is

one of form, not of substance, as explored hereafter.

4 1 . FAMU further embraces the dissent in Edwards to the

effect that the expectation of privacy is separate and distinct

from the right to be free from electronic interception, and

submits that Dr. Greenleaf had a separate right not to be

recorded. That may be a societal ly better construction of an

employer 's rights, but it has not yet been engrafted onto our

jurisprudence.

4 2 . T he foregoing Findings of Fact establish that

R espondent herein was called to the August 15, 2005, meeting for

the employer’s purpose of laying him off. If he were going to

be laid off, he knew he was entitled to a number of rights,

simply by virtue of being a permane nt employee , and that he was

entitled to other rights as a result of being a member of a

collective bargaining unit . H e wanted to protect those rights. 7/

4 3 . Herein, n ot only due to the number of persons in the

room and the location of the meeting, but also for other

reasons , no one in the meeting could have reasonably expected

privacy. Indeed, the meeting’s director, Dr. Greenleaf, advised

Respondent he could have yet another person come in and take

down what was said. She even advised him he could h ave a union

representative present. All the documents involved were public

records, and the meeting was for the public purpose of managing

personnel within the agency's limited financial range . A ny

right of confidentiality in the documents prepared to go into

his personnel file was Respondent’s to assert, and the other

university personnel present had no such right in them. See

Chapter 119, Florida Statutes. Section 934.04 , Florida Statutes

does not apply to the oral communications herein. Furthermore,

u nlike Mr. Edwards’ situation, there is no evidence that

Respondent has been collaterally charged or prosecuted under

Section 934.04, or that he was fired by FAMU for exceeding his

authority with regard to that statute or for violating his

agency ’s rules, regulations, policies or procedures related to

that statute.

4 4 . Respondent herein was terminated for refusing to stop

recording a meeting in which none of the participants had any

reasonable expectation of privacy . 8/ At law, silence usually is

presume d to signify consent, not resistance, and n either the two

police officers nor the other two administrators b esides

Dr. Greenleaf , including Respondent’s direct superior in the

line of IT command, voiced any opposition to Respondent’s

recording what went on in their meeting . Granted, Dr. Greenleaf

appears to have been the university president’s designe e to

accomplish the ministerial act of a layoff, and granted,

Dr. Perry “signed off on” the Notice of Dismissal letter

Dr. Greenleaf, which cit ed Respondent f or insubordination, but

the real issue here is: “If a superior, not in the employee’s

regular chain of command gives an oral order , without any basis

in law and unrelated to the employee’s normal job functions, is

it insubordination if t he employee refuse s to obey that order?”

4 5 . A point may be made that proper decorum was part of

Respondent’s job description and that a function of his job was

participation in the bureaucratic process by which management

accomplished a layoff , but that does not render Dr. Greenleaf’s

oral order to stop recording or to turn off the recorder

reasonable under the circumstances. See Rule 6C 3 - 10.337(3)(r).

Since Dr. Greenleaf's order was not reasonable under the

circumstances, Respondent was not guilty of insubordination, and

he should not have been terminated for insubordination.

4 6 . Respondent was never formally laid off and is entitled

to be reinstated as of the date of the improper dismissal,

August 15, 2005. Since he was paid for two additional weeks, he

is not entit led to recover wages for that period of time, but he

is entitled to receive all other benefits to which he was

entitled from August 15 to August 29, 2005 . It also appears

that he has been unable to secure commensurate employment since

August 29, 2005, at least in part because he was “discharged for

cause” instead of merely “laid off.” That being the case, it is

appropriate for FAMU to correct its personnel records and

provide him salary and benefits from August 29 , 2005 , until the

date of the final order herein and to institute appropriate

layoff procedures , if still appropriate, simultaneously with

entry the final order.

4 7 . Respondent has not requested attorney’s fees and costs

in his Proposed Recommended Order , and the undersigned is

unaware of any pro vision for an award of same under the posture

of this case.

R ECOMMENDATION

Upon the foregoing Findings of Fact and Conclusion s of Law, it

is RECOMMENDED that Florida Agricultural and Mechanical

University enter a final order which:

(1) Reinstates Respond ent in his previous position as of

August 15, 2005 , and corrects all personnel records to reflect

that he was not discharged for insubordination;

(2) Provides him with back pay dating from August 29,

2005 , to the date of the final order;

(3) Provides h im with all commensurate employee benefits

dating from August 15, 2005 , to the date of the final order ; and

(4) As of the date of the final order, provide s him with

all layoff rights and entitlements appropriate to his job

position and bargaining unit un der the layoff procedures

applicable at that date.

DONE AND ENTERED this 2nd day of August , 200 6 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Heari ngs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of August , 200 6 .

ENDNOTE S

1/ Although the testimony of Dr. Greenleaf suggests an

inconsistency due to legislative changes in administrative

structure (TR - 52 - 54; 62 - 64), the parties stipulated that Joint

Exhibit Six constituted the rules of the University Support

Personn el System defining disciplinary standards at all times

material, including defining “insubordination” (TR 24); that

Joint Exhibit Seven, constituted applicable rules distinguished

from standard disciplinary action (the SUS Employment Rules) and

also were i n effect at all times material (TR - 25) ; and that

Joint Exhibit Eight constituted the lay - off rule (Florida

Administrative Code Rule 6C3 - 10.113) in effect at all times

material (TR - 25 - 26).

2/ The exhibits reveal this as the correct spelling of

Dr. Green leaf’s first name, which was apparently mis - heard by

the court reporter, and which erroneously appears in the

Transcript as “Jamie Greenleaf”.

3/ The transcription of Respondent’s tape recording (Barnes

Exhibit 1) is accurate as to the contents of the a ctual tape

(Barnes Exhibit 2), but it is clear that neither the tape nor

the transcript contain s the entire meeting. At most, they may

contain what was said upon Respondent’s return from the outer

office. Respondent concedes that he turned his recorder o n and

off at various times during the meeting, trying only to record

when something was actually happening.

4/ Regardless thereof, the evidence herein has met the “clear

and convincing” burden.

5/ This rule is shown on Joint Exhibit Seven , “Departm ent of

Education Board of Regents, Chapter 6C - 5",” the SUS Rules . See

also n. 1 , and Florida Administrative Code Rule 6C - 5 . 955(1)(c) .

6/ None of the exhibits show this citation. The undersigned has

assumed that FAMU inten ded to cite from Joint Exhibi t Six ,

Florida Admin istrative Code Rule 6C3 - 10.337. See also n. 1 .

7/ Respondent’s Proposed Recommended Order suggests that when

Dr. Greenleaf refused to give Respondent the original layoff

letter , she violat ed Chapter 119 , Florida Statutes , and further

s peculates that Dr. Greenleaf refus ed to be tape recorded because

she was not in compliance with, or was planning to not comply

with , Rule 6C - 5.955 , regarding layoff lists, unit designations,

retention points, etc. The evidence herein is insufficient to

establish either theory , and r esolution of those issues is not

necessary to resolution of the material issue presented in this

case . Those conjectures will not be addressed herein.

8/ The undersigned acknowledges that the Edwards court re v er sed

that por tion of PERC's hearing officer's order wherein he stated

that a disciplinary investigation for alleged illicit tape

recording constituted an "extension of a public meeting."

However, based on the different sequence of events, the

different situation , purp oses, and applicable personnel rules

herein , and the director's offer to bring in someone to

transcribe the hearing, one might accurately describ e the

instant situation as a "public meeting."

COPIES FURNISHED :

Antoneia Roe, Esquire

David C. Sel f, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

Dr. Castell V. Bryant, Interim President

Florida A & M University

400 Lee Hall

Tallahassee, Florida 32307 - 3100

Elizabeth T. McBride, Esquire

Flori da A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 - 3100

Ben R. Patterson, Esquire

Patterson and Traynham

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

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 Recommended Order should be filed with the agency that

will issue the final order in this case.