11-000740RU Cynthia Orndoff vs. Florida Gulf Coast University Status: Closed DOAH Final Order on Tuesday, May 3, 2011.

Summary: University's documents concerning faculty evaluation, retention, and organizational structure derived from exercise of article IX, section 7, Florida Constitution; thus, no subject matter jurisdiction for the Administrative Procedures Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA ORNDOFF , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0740RU

)

FLORIDA GULF COAST UNIVERSITY , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on March 16, 2011, by video teleconference in Tallahassee,

Florida , and Fort Myers, Florida, before Thomas P. Crapps, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia Orndoff, pro se

1425 Reynard Drive

Fort Myers, Florida 33919

For Respondent: Michael Mattimore, Esquire

Jason E. Vail, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Richard M. Pierro, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225

Tampa, Florida 33606

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hear ings has

jurisdiction to hear a petition, brought pursuant to

section 120.56(4), Florida Statutes ( 2010 ) , 1/ claiming that a

state university's documents concerning the process and criteria

for faculty performance evaluation; documents from the

university's College of Business setting out a Framework and

Standards for Contract Renewal and Promotion for faculty; and

documents showing the university's organization structure and

delegations of authority are "agency statements" that require

rule - making under the Administrative Procedure Act.

PRELIMINARY STATEMENT

On February 14, 2011, the Petiti oner, Cynthia Or n d off

(Petitioner) , filed a Petition for Administrative Determination

of Invalidity of Agency Statements (Petition) pursuant to

section 120.56(4 ) . The Petitioner alleged that she had been an

associate professor at the Respondent, Florida Gulf Coast

University ( hereafter referred to by proper name or University).

The Petitioner alleged that she had been terminated "based on

several unadopted rules involving published documents from FGCU

President, to the Provost, to the College." The Petition's

Prayer for Relie f specifically identified the following as

"agency statements , " which are "unadopted rules:" ( 1) The

Faculty Performance Evaluation Documents for 2003 and 2008;

( 2) College of Business Framework and Standards for Contract

Renewal and Promotion adopted on April 14, 2006 , and revis ed on

February 5, 2010 ("Framework"); ( 3) Delegation of Authority

Memorandum accessed on October 7, 2010 , from the University's

web - site; and ( 4) Florida Gulf Coast University's organizational

chart.

On February 16, 2011, the case was assigned to

Administrative Law Judge Susan B. Harrell (Judge Harrell) . On

February 21, 2011, Judge Harrell issued an Order of Pre - hearing

Instructions and set the case for final hearing on March 16,

2011. On March 10, 2011, the case was transferred t o

Administrative Law Judge Thomas P. Crapps (Judge Crapps) .

On March 14, 2011, the University filed a Motion to Dismiss

and/or Motion for Summary Dismissal of Petition. The University

argued that the Petition should be summarily dismissed for the

followin g reasons: ( 1) the University derives its powers to

regulate the evaluation and employment of academic personnel

from a rticle IX, s ection 7 , Florida Constitution, and , thus , is

not subject to the Administrative Procedure Act; ( 2) the

Petitioner waived her rights to challenge her termination

through chapter 120 "when she filed a grievance pursuant to the

applicable collective bargaining agreement " ; ( 3) the Petitioner

lacked standing to bring the rule challenge; and ( 4) the

Petition is untimely because the Petitioner filed her challenge

more than one year from the date that she was terminated.

On March 16, 2011, Judge Crapps conducted the final hearing

on the Petition and reserved ruling on the University's Motion

to Dismiss and/or Motion for Summary Dismiss al of Petition.

At the March 16, 2011, hearing the Petitioner testified in

her own behalf and offered Exhibits 1, 2, 6 through 15, 17

through 19, 23 through 31, and 36 through 37, which were

admitted into evidence. The University presented the testimony

o f Dr. Hudson Rogers and offered Exhibits 1 through 10 and 16

through 21 , which were admitted into evidence. The undersigned

also took judicial notice of Florida Statutes ( 2010 ) , a rticle IX

of the Florida Constitution, and Florida Board of Governors

Regula tion 1.001.

On March 28, 2011, a one - volume T ranscript of the

proceedings was filed with the Division of Administrative

Hearings. The parties filed proposed final orders on April 7,

2011.

On April 7, 2011, the Petitioner filed additional e xhibits

numbered 38 through 75 for consideration with her proposed final

order. On April 20, 2011, the University filed a Motion to

Strike the additional exhibits filed by the Petitioner. On

April 21, 2011, the Petitioner filed a response to the Motion to

Strike. The University's Motion to Strike is granted.

FINDINGS OF FACT

1. The Petitioner is a former a ssociate p rofessor with

Florida Gulf Coast University.

2. Florida Gulf Coast University is a member of the Florida

state university system. Since November 2002, with the voter's

adoption of a rticle IX, s ection 7 , Florida Constitution, the

state university system has been overseen by a Board of

Governors. Furt her, a rticle IX, s ection 7 , Florida Constitution,

designated that each university, including Florida Gulf Coast

University, would be managed by a local board of trustees. Thus,

the B oard of G overnors and board s of trustees for universities

derive power fr om the Florida Constituti on, not legislative

enactment.

3. The Board of Governors enacted Regulation 1.001 that

established power and duties for university board s of trustees.

Among the Board of Governor s ' powers and duties delegated to the

universities' board of trustees is the authority to manage

uni versity personnel and faculty.

4. Dr. Hudson Rogers (Dr. Rogers) , an a ssociate p rovost

with the University, testified that the University faculty are

organized and represented by the United Faculty of Flori da (UFF).

The University and UFF are parties to a Collective Bargaining

Agreement. 2/

5. The Collective Bargaining Agreement between the Florida

Gulf Coast University Board of Trustees and UFF addresses the

evaluation of faculty members. Under Article 10 of the

Collective Bargaining Agreement, each college within the

University is empowered to develop its faculty evaluation

procedures and forms consistent with the criteria agreed upon in

the Collective Bargaining Agreement. The colleges' promulgation

and implementation of their respective evaluation frameworks are

not subject to any special process other than that outlined in

the C ollective Bargaining Agreement.

6. The University's College of Business developed its own

evaluation framework for faculty evaluation , which was consistent

with the Collective Bargaining Agreement. Further, Dr. R ogers

credibly explained that the University faculty voted on and

approved the Faculty Performance and Evaluation Document in 2003

that is used to evaluate faculty.

7. In September 2008, the Petitioner signed a Professional

Development Plan that included a performance improvement plan.

The performance improvement plan identified objectives that the

U niversity expected the Petitioner to meet regarding her job

duties.

8. In August 2009, after completing a probationary period

of the 2008 - 2009 academic year , the Petitioner was evaluated by

her department chair. The department chair rated the Petitioner

as not meeting expectations by failing to publish at least one

journal article by the end of the 2008 - 2009 academ ic year to meet

the College of B usiness scho larship standards.

9. Based on the Petitioner's failure to publish, the

department chair recommended that the Petitioner not be

reappointed after the 2009 - 2010 academic year. A peer review

committee for the University's College of Business also

determine d the Petitioner had failed to meet the minimum

requirements. The peer review committee informed the Petitioner

of its d ecision on September 12, 2009.

1 0 . On October 21, 2009, the Petitioner filed a grievance

pursuant to the Collective Bargaining Agreeme nt. A review of the

Petitioner's grievance shows that it alleged numerous violations

of the Collective Bargaining Agreement concerning her faculty

evaluation and decision not to re - appoint her as an associate

professor.

11. On October 22, 2009, the dean for the College of

Business informed the Petitioner that "[a]fter reviewing your

request and all documents provided me by you and the Peer Review

Committee, my decision is that your contract will not be

renewed."

12. On November 20, 2009, the University r epresentative,

who reviewed the grievance, found that a majority of the claims

were time barred or did not constitute a violation. The

University r epresentative found "a partial violation of

[Collective Bargaining Agreement] Article 10.3A(1)" for failing

to timely finalize the Petitioner's annual evaluation for the

2008 - 2009 academic year . The University r epresentative noted

that the Collective Bargaining Agreement did not "indicate any

action to be taken in response to this violation."

13. On December 1 0, 2009, the Petitioner filed a Request

for Arbitration under the Collective Bargaining Agreement. On

February 23, 2010, the University received the Petitioner's

Notice of Intent to Arbitrate. On April 12, 2010, an arbitration

hearing was held on the Pet itioner's grievance. The arbitrator

held that the Petitioner's Notice of Intent to Arbitrate was not

timely under the Collective Bargaining Agreement; thus, it was

considered withdrawn.

14. On September 22, 2010, the Petitioner's supervisor,

Dr. Robert O'Neill (Dr. O'Neill) , wrote the Petitioner ,

confirming that her last date of employment at the Uni versity was

December 17, 2010.

15. The Petitioner's last day of employment with the

University was December 17, 2010.

16. On February 14, 2011, the Petiti oner filed the

Petition. The Petitioner alleged that the University is an

"agency" within the definition of chapter 120 and is subject to

the Administrative Procedure Act. Further, the Petitioner

alleged that the University has made the following agency

statements that are unadopted rules: ( 1) t he Faculty

Performance Evaluation Document for 2003 and 2008; ( 2) College

of Business Framework and Standards for Contract Renewal and

Promotion adopted on April 14, 2006 , and revis ed on February 5,

2010 ("Framework"); ( 3) Delegation of Authority Memorandum

accessed on October 7, 2010 , from the University's web - site; and

( 4) Florida Gulf Coast University's organizational chart.

17. The Petitioner also alleged that her substantial

inte rests are affected "because her employment has been

terminated based on several unadopted rules involving published

documents from the [Florida Gulf Coast University] President, to

the Provost, to the College." Further, a reading of the

Petitioner's chall enge here shows that she alleged that the

University failed to the follow the "unadopted rules" when it

evaluated her and decided not to re - appoint her to a teaching

position. For example, the Petitioner claimed that the Florida

Gulf Coast University Facu lty Performance and Evaluation document

is an agency statement that was not adopted as a rule under

chapter 120. Next, the Petitioner alleged that Dr. O'Neill, who

was her supervisor, failed to follow this Faculty Performance and

Evaluation document when he evaluated her.

CONCLUSIONS OF LAW

18. The University's Motion to Dismiss and/or Motion for

Summary Dismissal of Petition raises the dispositive issue that

the Division of Administrative Hearings does not have subject

matter jurisdiction in this case. The Petitioner filed the

Petition , seeking to invoke jurisdiction pursuant to

section 120.56(4)(a). The Division of Administrative Hearings,

however, does not have jurisdiction to hear the Petition

challenging statements concerning faculty evaluation, ret ention ,

and university organization , because Florida Gulf Coast

University is not an "agency" as defined by the Administrative

Procedure Act. This determination is based on a reading of

chapter 120 ; a rticle IX, s ection 7 , Florida Constitution ; and the

holding in NAACP, Inc. v. Florida Board of Regents and State

Board of Education , 876 So. 2d 636 (Fla. 1st DCA), review

dismissed , 82 2 So. 2d 386 (Fla. 2004).

19. An examination of chapter 120 shows that the

University's challenged documents here are not "agency

statements." Section 120.56(4)(a) provides "any person

substantially affected by an agency statement may seek an

administrative determination that the statement violates

section 120.54(1)(a)." Further, section 120.54(1)(a) provides

that " [e]ach agency statement defined as a rule by section 120.52

shall be adopted by the rulemaking procedure provided by this

section as soon as feasible and practicable." A "rule" is

defined , in pertinent part, in section 120.52(16) a s:

(16) "Rule" means ea ch agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not speci fically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. . . .

20. The statutory definition of a "rule" shows that it is

an "agency statement." Consequently, the question is whether the

University is an "agency" under the Administrative Procedure Act.

The term "agency" is defined, in pertinent part, in

section 120.52 as:

(1) "Agency" means the following officers

or governmental entities if acting pursuant

to powers other than those derived from the

constitution:

(a) The Governor; each state officer and

state department, and each departmental unit

described in s. 20.04; the Board of

Governors of the State University System;

the Commission on Ethics; the Fish and

Wildlife Conservation Commission; a r egional

water supply authority; a regional planning

agency; a multicounty special district, but

only when a majority of its governing board

is comprised of nonelected persons;

educational units; and each entity described

in chapters 163, 373, 380, and 582 and

s. 186.504.

21. The term "educational unit" referenced in

section 120.52(1)(a) is further defined as:

(6) "Educational unit" means a local school

district, a community college district, the

Florida School for the Deaf and the Blind,

or a state university when the university is

acting pursuant to statutory authority

derived from the Legislature.

22. Based on the definitions, it is clear that a state

university is subject to the Administrative Procedure Act only

when it is acting pursuant to a statutory authority derived from

the Legislature. When a state university is acting pursuant to

powers deri ved from the constitution, the university is not

subject to the Administrative Procedure Act.

23. In November 2002, the voters adopted a rticle IX,

s ection 7 , Florida Constitution. Article IX, s ection 7 , Florida

Constitution, establishes a system of gover nance for the state

university system which provides:

§ 7. State University System

(a) Purposes. -- In order to achieve

excellence through teaching students,

advancing research and providing public

service for the benefit of Florida's

citizens, their comm unities and economies,

the people hereby establish a system of

governance for the state university system

of Florida.

(b) State university system. -- There shall

be a single state university system

comprised of all public universities. A

board of trustees shall administer each

public university and a board of governors

shall govern the state university system.

(c) Local boards of trustees. -- Each local

constituent university shall be administered

by a board of trustees consisting of

thirteen members dedica ted to the purposes

of the state university system. The board

of governors shall establish the powers and

duties of the boards of trustees. Each

board of trustees shall consist of six

citizen members appointed by the governor

and five citizen members app ointed by the

board of governors. The appointed members

shall be confirmed by the senate and serve

staggered terms of five years as provided by

law. The chair of the faculty senate, or

the equivalent, and the president of the

student body of the universi ty shall also be

members.

(d) Statewide board of governors. -- The

board of governors shall be a body corporate

consisting of seventeen members. The board

shall operate, regulate, control, and be

fully responsible for the management of the

whole universit y system. These

responsibilities shall include, but not be

limited to, defining the distinctive mission

of each constituent university and its

articulation with free public schools and

community colleges, ensuring the well -

planned coordination and operation of the

s ystem, and avoiding wasteful duplication of

facilities or programs. The board's

management shall be subject to the powers of

the legislature to appropriate for the

expenditure of funds, and the board shall

account for such expenditures as provided by

law. The governor shall appoint to the

board fourteen citizens dedicated to the

purposes of the state university system.

The appointed members shall be confirmed by

the senate and serve staggered terms of

seven years as provided by law. The

commissioner of education, the chair of the

advisory council of faculty senates, or the

equivalent, and the president of the Florida

student association, or the equivalent,

shall also be members of the board.

24. On January 7, 2003, the Board of Governors established

re gulations pursuant to a rticle IX, s ection 7 , Florida

Constitution, that delegated authority to the local b oard of

t rustees for each university. In pertinent part, Florida Board

of Governors Regulation 1 . 001 provides:

(3) University Administration and

Ove rsight.

(a) Each board of trustees shall be

responsible for the administration of its

university in a manner that is dedicated to,

and consistent with the university's mission

which shall be otherwise consistent with the

mission and purposes of the State University

System as defined by the Board of Governors;

* * *

(5) Personnel

(a) Each board of trustees shall provide

for the establishment of the personnel

program for all employees of the university,

including the president, which may includ e

but is not limited to: compensation and

other conditions of employment, recruitment

and selection, nonreappointment, standards

for performance and conduct, evaluation

. . . appeals and grievance procedures, and

separation and termination from employment .

25. Article IX, s ection 7 , Florida Constitution, gives the

Board of Governors broad powers over the governance of the state

university system and creates a university board of trustees to

administer each university. Further, Florida Board of Governors

Regulation 1 . 001 shows that the Board of Governors has delegated

power and authority to the board s of trustees for administering

the universities, including the management of personnel.

26. The controlling case of NAACP, Inc. v. Florida Board

of Regents and State Board of Education , supra , held that

a rticle IX, s ection 7 , Florida Constitution, is self - executing

and that the Board of Governors, which oversees the state

university system, derives its power directly from the

constitution. 876 So. 2d at 639 - 640. The NAACP court reasoned

that because the Board of Governors derives its authority fr om

the constitution, its regulations are not subject to the Florida

Administrative Procedure Act. 876 So. 2d at 640. Therefore,

the court dismissed a challenge to the Board of Governor s '

regulations concerning university admissions as moot.

27. Further, the Legislature has recognized the Board of

Governor s ' duties as constitutional through its enactment of

section 1001.705, Florida Statutes. Section 1001.705(2) sets

out the Board of Governors' constitutional duties while

subsection (3) of the statute re cognizes the Legislature's

constitutional responsibilities concerning the state university

system. A reading of the statute shows that the Legislature

recognized that the Board of Governor's constitutional duties

included "[e]stablishing a personnel syste m for all state

university employees. . . ." In contrast, the portion of the

statute framing the Legislature's duties and responsibilities

does not reference university personnel. Therefore, it is clear

that the University's decisions concerning its pers onnel,

including faculty evaluations, re - appointment, promotion,

delegation of powers and organizational structure are derived

from the constitution.

28. Applying the rules of law to the Petition, it is clear

that a summary dismissal with prejudice is app ropriate here.

Although the University's m otion raises several issues, the issue

concerning subject matter jurisdiction is dispositive. The

Petition here seeks to challenge as "unadopted rules" the

following Florida Gulf Coast University statements or documents:

( 1) t he Faculty Performance Evalu ation Document for 2003 and

2008; ( 2) College of Business Framework and Standards for

Contract Renewal and Promotion adopted on April 14, 2006 , and

revisal on February 5, 2010 ("Framework"); ( 3) Delegation of

Authority Memorandum accessed on October 7, 201 0 , from the

University's web - site; and ( 4) Florida Gulf Coast University's

organizational chart.

29. As discussed earlier, the Board of Governor s ' power

and authority over the University is derived from a rticle IX,

s ection 7 , Florida Constitution . Furthe r, the Board of

Governors has delegated this constitutional authority to the

University's Board of Trustees to administer the University,

including faculty evaluations, standards of performance,

decisions on reappointment, and organizational structure. Al l

of the challenged statements identified by the Petitioner are

within the powers derived from the constitution and not subject

to chapter 120, the Administrative Procedure Act. None of the

challenged statements show that Florida Gulf Coast University is

acting as an "agency" as defined under section 120.52. Thus, it

is clear that jurisdiction does not exist , and the Petition is

to be dismissed with prejudice.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

A. Th e Petition for Administrative Determination of

Invalidity of Agency Statements is dismissed for lack of

jurisdiction;

B. The parties' requests for award of reasonable attorne y's

fees and costs are denied.

DONE AND ORDERED this 3rd day of May , 2011 , in Tallahassee,

Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of May , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

2/ The Collective Bargaining Agreement in th is case initially

covered years 2007 - 2010, but its terms have been extended for

2011 by an agreement between UFF and the Florida Gulf Coast

University Board of Trustees.

COPIES FURNISHED :

Michael Mattimore, Esq uire

Jason E. Vail, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Cynthia Jane Orndoff

1425 Reynard Drive

Fort Myers, Florida 33919

Richard M. Pierro, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenu e, Suite 225

Tampa, Florida 33606

Vee Leonard, General Counsel

Florida Gulf Coast University

10501 FGCU Boulevard, South

Fort Myers, Florida 33965

F. Scott Boyd, Executive Director and

General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to s ection 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the o riginal Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate Dis trict where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.