16-003613 Darryll K. Jones vs. Florida A &Amp; M University Board Of Trustees Status: Closed Recommended Order on Thursday, November 3, 2016.

Summary: Petitioner's base salary was correctly adjusted after he was converted from a 12-month teaching contract to a nine-month teaching contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRYLL K. JONES,

Petitioner,

vs. Case No. 1 6 - 3613

FLORIDA A & M UNIVERSITY

BOARD OF TRUSTEES ,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Admi nistrative Law Judge of the Division

of Administrative Hearings (DOAH) , conducted a hearing in this

case in Tallahassee, Florida , on August 1 8 , 2016 .

APPEARANCES

For Petitioner : Darryll K. Jones, pro se

10609 Arbor View Boulevard

Orlando, Florida 328 25 - 4479

For Respondent : Olorunfunmi O. Ojetay o, Esquire

Ana M. Gargollo - McDonald, Esquire

Florida A&M Univers ity

FHAC, Suite 304

1700 Lee Hall Drive

Tallahassee, Florida 32307 - 3100

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to the relief

requested in his Step Three salary grievance with Florida A&M

University (FAMU).

PRELIMINARY STATEMENT

In this salary dispute, Petitioner, a P rofessor at FAMU

College of Law ( College of Law), contests a reduction in his

base salary after being reassigned from his position as Interim

Dean to Professor in early 2016 . After Petitioner filed a

grieva nce under FAMU Regulation 10.206 to contest the adjusted

salary , b y memorandum dated May 13, 2016, FAMU informed

Petitioner that his Step Two grievance had been denied.

Petitioner timely filed a Step Three grievance in which he

requested a formal hearing to adjudicate the dispute. Pursuant

to a contract, the matter was referred by FAMU to DOAH to

conduct a formal hearing.

At the hearing, Petitioner testified on h is own behalf and

presented two witness es , on e by telephone . Petitioner's

Exhibits 1 through 5 were accepted into evidence. FAMU

presented the testimony of one witness. Respondent's Exhibits 1

th rough 6 and 12 through 14 were accepted in evidence. Finally,

Joint Exhibits 1 through 10 were accepted in evidence.

A one - volume T ranscript of the hea ri ng was prepared.

Proposed f indings of f act and c onclusions of l aw were filed by

the parties , and they have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. In school year 2008 - 2009 , Petitioner was a tenured

professo r at Stetson University College of Law (Stetson ) in

St. Petersburg . The FAMU College of Law , located in Orlando ,

was recruiting new faculty to improve its stature and academic

standing . Besides Petitioner's academic stature as a tax and

business law pr ofessor , the College of Law was then only

provisionally accredited by the American Bar Association, and it

sought an individual , such as Petitioner, who could help the

College of Law achiev e and retain full accreditation.

2. Like other state universities , College of Law faculty

members are either on a nine - month (academic calendar), ten -

month, or 12 - month (annual calendar) contract. A 12 - month

contract is justified when a faculty member has regular year -

round teach ing , research, and/or administrative dut ies.

3 . In late 2008, P etitioner was first contacted by the

Dean of the College of Law, LeRoy Pernell, regarding a teaching

position for the upcoming school year 2009 - 2010 . By letter

dated February 26, 2009, Dean Pernell informed Petitioner that

he would recommend his appointment as a tenured, full professor

under a nine - month contract at a salary of $177,000.00 . See

Pet'r Ex. 1.

4 . Had he returned to Stetson f or the 2009 - 2010 academic

year, Petitioner's base salary would have been $154,230.00, plus

"be nefit costs , " including a summer teaching supplement and a

tuition - matching program for his family , which totaled more than

Dean Pernell's initial offer. See Pet'r Ex. 3. Accordingly,

Petitioner rejected the offer and asked for a compensation

package of around $200,000.00.

5 . Although Dean Pernell had no authority to establish a

salary level, he agreed to recommend that Petitioner receive a

salary of $18 0 ,000.00 for a nine - month faculty contract , rather

than $177,000.00, and t o "commit to providing a f unded summer

research grant to equal no less than $15,000 for summer s 2010 -

2012, assuming continuing availability of funding ." See P et'r

Ex. 2. These proposed changes were handwritten on the initial

offer letter previously tende re d by Dean Pernell.

6 . D ean Pernell's offer letter required that Petitioner

work 12 months -- nine months as a professor and three months in

a research role. Th e new offer was memorialized by the Dean in

a third version of the initial offer letter dated February 26,

2009 . As th e testimony at hearing confirmed , the final version

of the letter simply incorporated Dean Pernell's hand written

changes found on the second version and read s in pertinent part

as follows:

This is to advise you that by a vote of the

faculty and my full sup port, I am

recommending that you be appointed to the

faculty of the Florida A&M University

College of Law as a professor. The formal

letter of offer from the Senior Vice

President and Provost of Florida A&M

University is forthcoming. This

recommendation is as a tenured Professor

[of] Law. The recommendation is that this

appointment be effective commencing with the

2009 - 2010 academic year and commencing with

a salary of $180,000.00 for a 9 month

contract. In addition, I will recommend

that the College of Law commit to providing

you a funded summer research grant equal to

no less than $15,000.00 for the summers

2010 - 201 2 , assuming continued availability

of fund s .

See also Jt. Ex. 9, p. 3.

7 . The authority to make formal employment and salary

offers to fa culty members lies with the Provost and Vice

President for Academic Affairs , who at that time was Dr. Cynthia

Hughes - Harris . See FAMU Reg. 1.021 ; Jt. Ex. 2 . She was not

required to accept the recommendation of Dean Pernell and could

make an offer that fi t within FAMU's administrative and budget

considerations. Dean Pernell made this clear during his

negotiations with Petitioner.

8 . On April 20 , 2009, Provost Hughes - Harris informed

Petitioner by letter that FAMU was offering him a full - time

position wit h the College of Law. The letter stated in part as

follows:

I am pleased to offer you a 12 month, full -

time position as a full Professor and also,

Associate Dean for Research & Faculty

Development in the College of Law. Your

position as professor is with tenure,

subject to the approval of the Board of

Trustees. The Board of Trustees will

meet regarding this matter no later than

June 2009. The annual salary of $180,000

with a $20,000 stipend for administrative

responsibilities will be paid on a bi - we ekly

rate of $7,662.83. The appointment period

is for the fiscal year , which will begin on

July 1, 2009 and end on June 30, 2010.

Jt. Ex. 1.

9 . While Provost Hughes - Harris' offer essentially matched

the compensation recommended by Dean Pernell, the terms of the

offer deviated in two material respects. First, rather than a

nine - month faculty contract, Petitioner was offered a 12 - month

faculty contract. Second, rather than a "summer research grant"

to supplement his salary, he was offered a 12 - month position as

Associate Dean for Research & Faculty Development , which

required that he perform administrative duties on a year - round

basis . B ecause of administrative duties, his teaching

responsibilities were limited to a " maximum of two courses per

academ ic year while Associate Dean. " Id. The bottom line here

is that Petitioner was offered the same compensation recommended

by Dean Pernell, but he now had year - round administrative

duties.

10 . Petitioner voluntarily accepted the offer on April 28,

2009. See Jt. Ex. 1 , p. 2.

1 1 . At hearing, Provost Hughes - Harris denied ever

receiving a copy of any offer letter by Dean Pernell , except the

initial offer letter of $177,000.00. However, Provost Hughes -

Harris did not make employment and salary offers without

conferring with the recommending dean, and she acknowledged that

there "was certainly conversation" with Dean Pernell before the

offer letter was tendered. While she could not recall any

details regarding that conversation, she recalled that her offer

let ter was for a 12 - month faculty contract, and there was no way

to "blend" a nine - month teaching contract with a 12 - month

administrat or contract . This is because a nine - month position

and a 12 - month position require separate contracts and cannot be

combined .

1 2 . Each employment contract signed by Petitioner included

the following conditions:

This Employment Contract between Florida A&M

University Board of Trustees (FAMU) and the

Employee is subject to the Constitution and

laws of the State of Florida as

con stitutionally permissible, and the

regulations, policies and procedures of

[the] U.S. and the Florida Board of

Governors and FAMU as now existing or

hereafter promulgated.

* * *

This Employment Contract supersedes any and

all prior agreements, co ntracts,

understandings, and communications between

the Employee and FAMU, whether written or

oral, expressed or implied, relating to the

subject matter of this Employment Contract

and is intended as a complete and final

expression of the terms of the Empl oyment

Contract between FAMU and the Employee and

shall not be changed or subject to change

orally.

Jt. Ex. 1, 4, 5, 6, and 7.

1 3 . Petitioner commenced employment with the College of

Law in July 2009 and continued working as Associate Dean and a

full Pro fessor until the summer of 2015. During that period of

time, he taught at least one class in the fall and spring

semesters and performed administrative duties as Associate Dean

on a year - round basis. By th en , regular pay adjustments had

increased h is bas e salary for fiscal year July 1, 2015, through

June 30, 2016, to $1 8 9,304.30 , plus a supplement of $20,000.00

as Associate Dean . See Jt. Ex. 6.

1 4 . When Dean Pernell stepped down as Dean in the summer

of 2015, by letter dated June 15, 201 5 , the new Pro vost and Vice

President for Academic Affairs, Marcella David, appointed

Petitioner Interim Dean while a search for a new Dean was

undertaken. Besides the base salary and supplement he already

received as Associate Dean , Petitioner was given an additional

supplement of $10,000.00 for serving as Interim Dean , for a

total supplement of $ 30,000.00. See Jt. Ex. 8.

1 5 . On June 26, 2015, Petitioner voluntarily signed the

offer letter confirming his acceptance. Id.

1 6 . Provost David's letter informed Petit ioner that "upon

cessation of [his] appointment as Interim Dean of the College of

Law and return to the position of Associate Dean," his salary

would "be adjusted consistent with applicable FAMU Board of

Trustee Regulations and Policies ." Id. This obviou sly meant

that once a new Dean was hired, and he reassumed the position of

Associate Dean , he would no longer receive the extra $10,000.00

supplement.

1 7 . For the first time, the letter specifically advised

Petitioner to be aware of Regulation 10.102 an d Policy 2005 - 15 .

Id. Prior to that time, no reference to specific regulations or

policies was made . However, each employment contract placed him

on notice t hat all FAMU policies and regulations appl ied to

employment contracts . 1/

1 8 . Regulation 10.10 2 and Policy 2005 - 15 govern pay

actions when faculty members serving in an administrative

position return to a faculty only position. This meant that if

Petitioner resumed full - time teaching with no administrative

duties, he would be subject to the terms of those provisions.

1 9 . B efore signing the June 15, 2015 , offer letter,

Petitioner did not ask how the Regulation and Policy would

affect his base salary if he returned to a full - time faculty

position since more than likely he assumed he would again se rve

as Associate Dean and a tenured p rofessor.

20 . Subsection s (11) and (12) of Regulation 10.102 read as

follows:

(11) When the assignment of Faculty serving

in an administrative position such as Vice

President, Dean, Director, or Department

Chair is ch anged, the pay and appointment

period shall be adjusted to reflect the new

responsibilities. Pay adjustments shall be

completed in accordance with the Board of

Trustees Policy 2005 - 15 (Separation and

Return of Senior Administrative and Academic

Officers t o Faculty), as now or hereafter

amended.

(12) An employee's base salary shall be

adjusted 81.8 percent when changing from a

twelve - month appointment to a nine - month

appointment. An employee's base salary

shall be adjusted by 122.2 percent when

changing from a nine - month appointment to a

twelve - month appointment.

Jt. Ex. 10, p. 2.

2 1 . Section IV . , Policy 2005 - 15, "Salary upon Change in

Assignment to a Faculty Position , " describes three ways in which

to calculate an employee's salary after being reassign ed from an

administrative to faculty position. It reads as follows:

A. New Hire as Administrator

If the employee was hired upon initial

appointment as an administrator, his or her

new salary will be the median salary of the

employees within the same pro fessorial rank

and discipline.

B. Tenured Faculty Prior to Becoming an

Administrator.

If the employee was previously a tenured

faculty member prior to becoming an

administrator, his or her new salary will be

the salary held by the employee immediately

prior to the time of the administrative

appointment and any increases received by

the faculty during the time of service as an

administrator. These separate compensations

will be noted in the appointment letter.

C. Other Consideration

Notwithstanding the provisions of IV.A. and

IV.B., any agreed upon salary arrangement

negotiated by the President or President's

designee upon appointment as an

administrator shall also be considered.

Jt. Ex. 3, p. 2.

2 2 . On January 4, 2016, A. Felecia Epps was select ed

as the new D ean of the College of Law, with a start date of

January 4, 2016. After assuming the position, Dean Epps

restructured the College of Law leadership and its personnel .

A determination was made that Petitioner would not continue in

his r ole as Associate Dean and he would return to a full - time

position as instructional faculty .

2 3 . B ecause Petitioner no longer had the position and

responsibilities as Associate Dean, and would work only nine

months each year as a p rofess or , he was tender ed a new contract

on March 3, 2016, which adjusted his base salary downward from

$ 18 9 ,3 04.00 to $148,306.00. See Jt. Ex. 5. This calculation

was consistent with Regulation 10.102(12). The term of

employment was from August 1, 2016, through May 5, 2017, with no

special supplements or conditions. The new salary represented

compensation based on a nine - month contract as a professor

rather than a 12 - month contract with dual duties .

2 4 . According to P rovost David, who tendered the offer,

this salary adjus tment was in accord with s ection IV. A . , Policy

2005 - 15 , which governs salary changes for employees who are

reassigned from an administrative position to a faculty position

and were hired upon initial appointment as an administrator.

She explained that Pet itioner was initially hired by the College

of Law as Associate Dean , and upon cessation of that

appointment, s ection IV.A. provides that the employee's new

salary "be the median salary of the employees within the same

professorial rank and discipline." Sh e further explained that

t he provision assumes the person being appointed as a new

administrator is a faculty member , as it would not otherwise

refer to the employee as having a professorial rank. This

interpretation of the Policy is a re a sonable one and not clearly

erroneous.

2 5 . On March 7, 2016, Petitioner filed a grievance arguing

that he was entitled to the same compensation ($18 0,000 .00)

agreed upon when he was initially hired as a professor in 2009,

plus annual accruals . On March 18, 2016, P etitio ner signed the

contract under protest and subject to his grievance . See

Jt. Ex. 5.

2 6 . The current median salary of faculty members in the

College of L aw is $148,306.00 , which is the same as the adjusted

salary first offered Petitioner in March 201 6 . Petitioner

points out, however, that a t least three current College of Law

faculty members of similar experience and expertise, hired just

before or after he was hired in 2009 , were given nine - month

employment contracts with a base salary of around $18 0,000.00 .

2 7 . Ten days before the final hearing, Provost David

tendered Petitioner another employment contract that increased

his annual base salary from $148,306.00 to $154,850.92. See

Jt. Ex. 4. Th e rationale for th is increase was first outlined

in Provost David 's memorandum dated May 13, 2016, which denied

Petitioner's Step Two grievance. See Jt. Ex. 9 , p. 6 . A s

further explained by Provost David at hearing, by "generously"

interpret ing section IV. C . , Petitioner's appointment as Interim

Dean coul d be treated " as a new appointment as an administrator

with a base salary identified there on a 12 - month basis of

$189,000 and change, which allowed me to add approximately

$6,000 to the median salary that was calculated under

Paragraph A."

2 8 . Facult y members with a 12 - month contract accrue both

vacation and sick leave. A nine - month faculty member does not.

Petitioner is aware of this distinction. After this dispute

arose, Petitioner requested a pay - out of his unused accrued

vacation leave and was given $31,912.32.

CONCLUSIONS OF LAW

2 9 . This matter was heard pursuant to a contract between

FAMU and DOAH. See FAMU Reg. 10 - 206(9).

30 . The burden of proof is on Petitioner to establish by a

preponderance of the evidence that he is entitled to t he

requested relief. See FAMU Reg. 10.206(3) ; § 120.57(1)( j), Fla.

Stat .

31 . Section 1012.80(1)(b), Florida Statutes (2016),

provides in part :

(b) Any person who accepts the privilege

extended by the laws of this state of

employment at any state univ ersity shall, by

working at such institution, be deemed to

have given his or her consent to the

policies of that institution, the policies

of the Board of Governors, and the laws of

this state . . . .

32. Section IV . , Policy 2005 - 15 , governs the process for

determining the salary of an employee upon change in assignment

from an administrative position to a faculty position. The

evidence clearly shows that Petitioner was initially hired under

a 12 - month contract with dual administrative and teaching

resp onsibilities . After being reassigned to a teaching position

only, his employment contract was converted from a 12 - month

appointment with year - round duties to a nine - month faculty

appointment . Thus , he is subject to th e policy. By

interpreting th e policy in a manner that is most favorable to

Petitioner , he is entitled to a base salary of $154, 850.92 under

a nine - month contract .

33. Petitioner argues the 2009 contract is ambiguous and

extrinsic evidence should be considered to determine the

parties' int ent when he signed the contract . Barnett v. Destiny

Owners Ass'n , Inc. , 856 So. 2d 1090, 1092 (Fla. 1st DCA 2003).

Because of this ambiguity, he contends one must look at the

negotiations between h im and Dean Pernell in order to determine

what the partie s intended. Petitioner asserts that the offer

letter from Dean Pernell shows that the parties clearly intended

that he be hired under a nine - month teaching contract.

34. There is no ambiguity in the contracts. The Provost's

initial offer letter, the 20 09 contract, and all subsequent

contracts explicitly spell out that Petitioner was offered a

"12 month, full - time position as a full Professor" with

additional year - round administrative duties. At hearing,

Petitioner acknowledged that he knew the differe nce between a

nine - month and 12 - month contract, and he agreed the 2009

contract stated it was for a term of 12 months. Moreover, each

contract includes language that the contract supersede s any and

all prior agreements, understandings, and communications between

the employee and FAMU.

35 . Petitioner also contends there is no evidence that

Provost Hughes - Harris rejected Dean Pernell's offer. The

accepted evidence belies this assertion. Petitioner further

argues that Policy 2005 - 15 was never mentioned in the first

offer letter or contract . However, the first paragraph in each

contract Petitioner signed provides that the employee is subject

to the regulations, policies, and procedures of FAMU.

36. All other arguments have been considered and rejected.

3 7 . Because the new base salary complies with the Policy

and Regulation of FAMU , the grievance should be denied .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Florida A &M University enter a final ord er

denying Petitioner's Step Three grievance.

DONE AND ENTERED this 3rd day of November, 201 6 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

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 November , 201 6 .

ENDNOTE

1/ Petitioner was well aware of the ramifications of the Policy

and Regulation before that time, as another College of Law

faculty member, Markita Cooper, filed a grievance over the same

salary issue w hen she stepped down as Associate Dean for Academic

Affairs and returned to a full - time teaching position i n school

year 2012 - 2013 . See Resp. Ex. 6.

COPIES FURNISHED:

Shira R. T homas, Acting General Counsel

Florida A&M University

FHAC, Suite 304

1700 Lee Hall Drive

Tallahassee, Florida 32307 - 3100

(eServed)

Darryll K. Jones

10609 Arbor View Boulevard

Orlan do, Florida 32825 - 4479

(eServed)

Olorunfunmi O. Ojetayo, Esquire

Florida A&M University

FHAC , Suite 304

1700 Lee Hall Drive

Tallahassee, Florida 32307 - 3100

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions within

ten days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the University.

FAMU Reg. 10.206(9)(c).