Woodard v. Florida State University, BS-451
| Decision Date | 15 December 1987 |
| Docket Number | No. BS-451,BS-451 |
| Citation | 518 So.2d 336,12 Fla. L. Weekly 2857 |
| Parties | 44 Ed. Law Rep. 900, 12 Fla. L. Weekly 2857 Wallace S. WOODARD, Appellant, v. FLORIDA STATE UNIVERSITY, Appellee. |
| Court | Florida District Court of Appeals |
Pamela L. Cooper of Meyer, Brooks and Cooper, P.A., Tallahassee, for appellant.
Gerald B. Jaski, Gen. Counsel, and Sonja P. Mathews, Associate Gen. Counsel, Florida State University, Tallahassee, for appellee.
Woodard appeals an order denying his request for an administrative hearing to contest his termination as a tenured professor at Florida State University. We affirm.
Woodard was charged by some of his students and former students with improper actions in his contact with them. In settlement and disposition of these charges and the pending disciplinary action against him, Woodard entered into a written agreement with the University dated November 14, 1985 in which Woodard agreed that he would be placed on compulsory disability leave status for the Spring semester of 1986 in accordance with the terms of Article 17.11, of the United Faculty of Florida/Board of Regents Collective Bargaining Agreement (CBA). He agreed to voluntarily participate in psychological counseling with psychiatric oversight by practitioners acceptable to the University and that he would not be eligible for employment at the University during the Summer term of 1986. He further agreed that he would successfully complete the program of treatment deemed necessary by his practitioners so that in the opinion of his psychologist/psychiatrist he would be able to return to teaching, research and service duties typically assigned and performed by him prior to January 1985. An addendum to the November 14 agreement placed certain other limitations on Woodard's activities at Florida State University and his contact with students at the University. Both the agreement and the addendum were signed by Woodard and his attorney Pamela L. Cooper.
Article 17.11, the compulsory disability leave provision of the CBA, provides in part:
If the employee fails to fulfill the terms and conditions of the compulsory disability leave and/or is unable to return to work and perform assigned duties at the end of a compulsory leave period, the President or representative may, based upon the university's needs:
(a) extend the leave without pay;
(b) offer the employee part-time employment;
(c) request the employee's resignation; or
(d) release the employee from employment, notwithstanding the provisions of Article 15.1 and 15.10. (Emphasis supplied.)
The provisions of Articles 15.1 and 15.10 set out the procedure to be followed when disciplining and terminating an employee for just cause. However, Article 17.11(d) above makes it clear that a release from employment because of failure to fulfill the terms and conditions of compulsory disability leave is not a disciplinary matter.
The only issue for decision on this appeal is whether Woodard's request for hearing was timely. The determination of this question is dependent upon whether the notice of termination pursuant to the compulsory disability leave agreement which was sent to Woodard in care of his attorney was sufficient notice to Woodard requiring that a request for hearing be filed within 21 days. We find that the notice was sufficient. Both the compulsory disability leave agreement and the addendum to that agreement were signed by Woodard and by Pamela Cooper, his attorney. All subsequent contact between the University and Woodard was between Cooper and a university representative. After Woodard failed to comply with the compulsory disability leave agreement the University notified him, in care of his attorney, of his failure to comply and of its election to terminate his employment as a tenured professor pursuant to Article 17.11(d) of the CBA. The notice to Woodard in care of his attorney was received by Cooper and was duly forwarded to Woodard. In his letter to the University acknowledging receipt of the notice Woodard admits that Pamela Cooper was his attorney. Fla. Admin. Code Rule 28-5.111 provides that persons requesting a hearing on an agency decision which does or may determine their substantial interest shall file a petition with the agency within twenty-one (21) days from receipt of written notice of the decision. The word "person," however, should not be taken literally so as to require receipt of notice by the party. Fla. Admin. Code Rule 28-5.109 specifically provides that unless otherwise ordered by the presiding officer, service of every pleading and every other paper filed in a proceeding shall be made upon the party or his representative. Similarly, Fla.R.Civ.P. 1.080(b), relating service of pleadings and papers, even requires that when service is to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Notice to his attorney and agent is notice to Woodard, and receipt by his attorney is receipt by Woodard. The time for filing a request for hearing had expired before any such request was made by Woodard or his attorney.
Accordingly, we affirm the order denying his request for an administrative hearing. AFFIRMED.
SHIVERS, J., dissents with written opinion.
Dr. Woodard was entitled to personal receipt of notice. He received such notice on January 12, 1987, after it was sent to him by the lawyer who had represented him in working out a compulsory disability leave agreement with the University. Dr. Woodard requested an administrative hearing within 21 days after his receipt of notice, which, in my opinion, was timely. I believe he is entitled to a formal hearing. The University's service of notice to his attorney who had represented him in negotiating the agreement was inadequate. Before discussing the legal basis for this conclusion, I would like to expand somewhat on the facts which engendered this appeal.
This case involves the University's firing of Dr. Woodard for his failure to participate in psychological and psychiatric counseling. Dr. Woodard had agreed to counseling when the University placed him on compulsory leave for reasons unrelated to this appeal. After the University fired Woodard, he requested a formal hearing under section 120.57(1) of the Florida Administrative Procedure Act (APA). The University refused Woodard's request on the grounds that he had waived his right to a hearing through his failure to seek one within 21 days. Hence, there has never been a formal agency hearing in this case. The story of how Dr. Woodard was denied access to the administrative process is revealed to us through a series of letters exchanged between the University, Dr. Woodard, and his attorney, Pamela Cooper.
By letter dated December 8, 1986, the University fired Woodard, a tenured faculty member at Florida State University. The University sent this letter in care of Cooper, who had represented Dr. Woodard in negotiations culminating in his signing a compulsory disability leave agreement (UFF/BOR Agreement). Dr. Woodard was teaching in Pennsylvania at the time the University sent the letter to Cooper because one of the provisions of the UFF/BOR Agreement directed him to go on leave through the fall of 1986.
The December 8 letter is addressed to Cooper, and it sets forth charges supporting the University's decision. It also advises Dr. Woodard, and not Cooper, of his right to contest the University's action through either a collective bargaining agreement grievance procedure or the Florida APA. As to the APA, the letter states "you [Dr. Woodard] may be entitled to request a hearing pursuant to the Florida Administrative Procedure Act, Chapter 120, Florida Statutes, by filing an appropriate petition with me within 21 days of receipt of this letter." (emphasis added) Upon receipt by Cooper's law firm, the letter was then forwarded to Dr. Woodard in Pennsylvania. Dr. Woodard did not receive the December 8 letter until January 12, 1987. On January 24, 1987, Dr. Woodard invoked his right to an administrative hearing in a letter to Dr. Gus Turnbull.
On February 20, 1987, the University denied Dr. Woodard's request for review under both the UFF/BOR Agreement and the Florida APA. The University's stated reason for denial was Dr. Woodard's failure to timely file a request for an administrative hearing. The University asserted in this letter that notice to Cooper, Dr. Woodard's attorney, rather than Dr. Woodard personally, constituted imputed notice to him which was legally sufficient to commence the running of the jurisdictional time limits. (The University is silent in this letter on why, in light of the language of the December 8 letter which is directed specifically at Dr. Woodard, it had not explained to him that the only notice he was to receive was to be effected through his counsel, or that it had deviated from the model rules of administrative procedure in sending notice to Cooper.) The February 20 letter concludes that Woodard waived his right to any administrative hearing because he had not timely requested review of his release from the University.
In a letter dated March 19, 1987, Dr. Woodard's attorney sought reconsideration and clarification of the University's denial of his request for a hearing. Although the University never identified its letter of February 20, 1987, as a final order, Cooper concluded that the February 20 letter constituted final agency action. The University never responded to Cooper's request for reconsideration.
The magnitude of the interests at stake in this case--a tenured professor's loss of his teaching position--as well as the applicable case law and rules of administrative procedure, mandate that Dr. Woodard have actually received notice of his entitlement to an administrative hearing. The contours of due process vary...
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