96-002366 Michael Phillip vs. University Of Florida Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, September 19, 1996.

Summary: University is estopped from denying 120.57 hearing on basis of timeliness ab sent clear directions, particularly in view of other misleading information.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL PHILLIP )

)

Petitioner, )

)

vs. ) CASE NO. 96-2366

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 21,

1996, by video conference technology, in Gainesville, Florida, before the

Division of Administrative Hearings, by its designated Hearing Officer, Don W.

Davis.

APPEARANCES

For Petitioner: Paul A. Donnelly, Esquire

Post Office Box 1308

Gainesville, Florida 32602

For Respondent: Barbara C. Wingo, Esquire

University of Florida

Post Office Box 113125

Gainesville, Florida 32611-3125

STATEMENT OF THE ISSUE

Whether Petitioner's untimely filing of a Petition For Formal

Administrative Hearing should be excused.

PRELIMINARY STATEMENT

By letter dated June 30, 1995, Respondent's representative informed

Petitioner that Petitioner's appointment as a faculty member would not be

renewed.

By order dated August 23, 1995, Respondent denied Petitioner's request for

formal administrative proceedings as untimely.

Petitioner's motion for reconsideration, alleging that Respondent was

estopped from denial of such proceedings because of actions of Respondent's

employee, was denied by Respondent on September 15, 1995.

On April 23, 1996, the First District Court of Appeal found that Petitioner

"has alleged facts, supported by affidavit, that would excuse the untimely

filing of his petition." The matter was remanded for formal proceedings on

whether Petitioner's untimely filing for formal proceedings should be excused.

By correspondence and attachments filed May 17, 1996, Respondent referred

the matter to the Division of Administrative Hearings.

At the final hearing, the parties jointly sponsored and introduced exhibits

A through J, which were admitted into evidence. Petitioner presented testimony

of one witness. Respondent presented testimony of three witnesses.

A transcript of the August 21, 1996 final hearing was filed with the

Division of Administrative Hearings on September 5, 1996. Proposed findings of

fact submitted by the parties are addressed in the appendix to this recommended

order.

FINDINGS OF FACT

1. Petitioner gave Respondent's June 30, 1995 correspondence, informing

Petitioner that his employment contract would not be renewed, to Petitioner's

attorney. That correspondence informed Petitioner that he could appeal

Respondent's decision through "the appropriate administrative structure" or the

formal grievance procedures contained in Respondent's Rule 6C1-7.041, Florida

Administrative Code.

2. A copy of Rule 6C1-7.041, Florida Administrative Code, was attached to

the June 30, 1995 letter. Pertinent to this proceeding is the language of a

portion of the rule contained in paragraph 6C1-7.041(4)(a), Florida

Administrative Code, which reads as follows:

Initiation of a proceeding under Section

120.57, F.S. shall be made by submitting a

petition to the Clerk of the University of

Florida, as provided in Rule 6C1-1.005,

F.A.C. A copy of the petition should also

be sent to the President of the University.

The petition should be printed, typewritten,

or otherwise duplicated in legible form on

white paper. Unless printed, the impression

should be on one side of the paper only, and

lines shall be double-spaced and indented.

3. The June 30, 1995 letter did not state the location or personal

identity of the Clerk of the University. Rule 6C1-1.005, Florida Administrative

Code, referenced in Rule 6C1-7.041(4)(a), Florida Administrative Code was not

included in Respondent's correspondence. Rule 6C1-1.005(1), Florida

Administrative Code, provides:

The Clerk of the University is the

administrative assistant in the Office of

the General Counsel at 207 Tigert Hall,

University of Florida, Gainesville, Florida

32611. In the absence of the individual

holding this position, the administrative

assistant to the Vice-President for Admin-

istrative Affairs shall act as the Clerk of

the University of Florida.

4. Petitioner did not obtain and was not provided by Respondent with a

copy of Rule 6C1-1.005(1), Florida Administrative Code. Petitioner's counsel

did not know who was the Clerk of the University or where that office was

located.

5. Petitioner's counsel telephoned the University's information services

on August 8, 1995, and asked for a telephone listing for the Clerk of the

University of Florida at Tigert Hall. Information services was unable to

provide such a telephone listing and referred counsel to the University's

President.

6. On August 8, 1995, Petitioner's counsel telephoned the office of the

University's President and spoke with Lois Ivanko. A senior secretary in the

President's office for eight years, Ivanko greets guests, opens and directs

mail, and receives grievances. When informed by Petitioner's counsel of the

need to file an administrative petition with the Clerk of the University of

Florida on that very day, Ivanko said she would be happy to help counsel with

the filing process and that he should send his law clerk, Joseph Marlar, to her,

that she would take the petition and that she would file it.

7. Marlar went to Ivanko's office on August 8, 1995, and spoke with

Ivanko. Marlar explained that his mission was to file Petitioner's Petition For

Formal Administrative Hearing. Marlar specifically told Ivanko that the

document had to be filed with the Clerk of the University of Florida that day.

Ivanko, ignorant of the existence of a Clerk for the University, assured Marlar

that he was at the right place and that leaving the documents with her would

constitute appropriate filing. Marlar left Petitioner's Petition For Formal

Administrative Hearing with Ivanko who date and time stamped the document.

Ivanko later brought the original to the office of the University's Vice-

President of Academic Affairs.

8. Ivanko placed a date and time stamp on a copy of the documents provided

by Marlar so that Marlar would have proof of the filing of the document. All

three documents, one original and two copies, were clearly entitled "Petition

For Formal Administrative Hearing (CH.120)."

9. Karen Grabel is the Clerk of the University of Florida. She has held

that position since May 1993. Grabel works in the General Counsel's office,

located at 207 Tigert Hall. Ivanko works in the Office of the President at 226

Tigert Hall on the same floor of the building as Grabel.

10. Petitioner's Petition For Formal Administrative Hearing was not filed

in Grabel's office by the required deadline of close of business on August 8,

1995. By order of the University's President dated August 23, 1995, the

Petition was denied on the basis that it was not filed with the Clerk.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over this

subject matter and the parties to this action pursuant to Section 120.57(1),

Florida Statutes.

12. Petitioner has the burden of proving entitlement to the relief sought

in this proceeding. Fla. DOT v.J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA,

1981).

13. Central to resolution of the issue in this proceeding is the question

of equitable estoppel. See Tri-State Systems v. Department of Transportation,

500 So. 2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041 (1987). See

also Warren v. Department of Administration, 554 So. 2d 568 (Fla. 5th DCA 1989),

review denied, 562 So. 2d 345 (Fla. 1990). Estoppel must be considered in view

of the apparent and reasonable reality that Petitioner's counsel and counsel's

clerk were misled by Ivanko, regarding the location and propriety of document

filing.

14. Ivanko acted on behalf of Respondent when she accepted Petitioner's

Petition For Formal Administrative Hearing and gave her assurances to Marlar of

the propriety of the filing of those documents with Ivanko. Petitioner's

representatives placed reasonable reliance upon the representations of Ivanko.

To conclude that the Petition For Formal Administrative Hearing was not timely

filed is detrimental to the interests of Petitioner and his representatives who

relied and acted upon Ivanko's representations. Harris v. State, Department of

Administration, 577 So. 2d 1363 (Fla. 1st DCA 1991).

15. Respondent's argument that Petitioner was fairly informed by reference

in an enclosure with the June 30, 1995 letter to yet another, and not enclosed,

rule containing details governing proper filing requirements is not persuasive

in view of the actions of Ivanko. The proof establishes that filing delay of

the Petition For Formal Administrative Hearing, occasioned by filing the

documents with Ivanko in room 226 instead of room 207 of Tigert Hall, should be

excused and that Respondent should be estopped from denying Petitioner formal

proceedings on that basis.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a final order be entered finding Petitioner's Petition For Formal

Administrative Hearing to have been timely filed.

DONE and ENTERED this 19th day of September, 1996, in Tallahassee, Leon

County, Florida.

___________________________________

DON W. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 1996.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the

following rulings are made on the proposed findings of fact submitted on behalf

of the parties.

Petitioner's Proposed Findings

1.-33. Accepted and incorporated in HO findings, although not verbatim.

Respondent's Proposed Findings

1.-3. Accepted, not verbatim.

4.-5. Rejected, relevance.

6. Incorporated by reference.

7.-8. Accepted.

9. Rejected, subordinate to HO findings.

10.-12. Accepted.

13. Rejected, cumulative.

14. Rejected, relevance to this proceeding.

COPIES FURNISHED:

Paul A. Donnelly, Esquire

Post Office Box 1308

Gainesville, Florida 32602

Barbara C. Wingo, Esquire

University of Florida

Post Office Box 113125

Gainesville, Florida 32611-3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.