IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
DAVID WALTON,
Appellant,
v. Case No. 5D22-794 LT Case No. 2021-01
LAKE-SUMTER STATE COLLEGE,
Appellee.
________________________________/
Opinion filed April 14, 2023
Administrative Appeal from the Lake-Sumter State College.
Tobe M. Lev, of Lev & Siwica, P.A., Orlando, for Appellant.
Brian Koji, of Allen, Norton & Blue, P.A., Tampa, for Appellee.
MAKAR, J.
David Walton, Ph. D., was hired by Lake-Sumter State College as an
anthropology instructor in August 2015 and, after five years of service,
became eligible for, and was awarded, a continuing contract on July 31,
1 2020. The continuing contract, which is a form of academic tenure, stated
that Dr. Walton’s employment would remain in force from year to year “unless
terminated by mutual consent in writing by the parties hereto or unless [Dr.
Walton] is suspended or removed for cause pursuant to law and rules of the
State Board of Education and the Board.” (Emphasis added). Less than a
year later, on June 3, 2021, Dr. Walton was informed via letter from the
College’s president that his continuing contract would terminate at month’s
end and not be renewed. Dr. Walton elected to contest his termination in an
administrative hearing, which resulted in a recommended order upholding
the College’s action that the College’s board affirmed. Dr. Walton now
appeals.
Dr. Walton raises several issues on appeal, which we distill into two
distinct ones. The first is whether Dr. Walton’s termination was proper based
on the College’s determination that his workload, which included
anthropology courses and student success courses, was unsatisfactory and
thereby sufficient cause to end his contract. The second is whether the
College’s determination that demand for anthropology courses had declined
to the point that eliminating them entirely, and thereby also terminating Dr.
Walton’s employment, was sufficient cause under the continuing contract.
2 The applicable Florida administrative rule, entitled “Employment
Contracts for Full-Time Faculty,” states:
Each district board of trustees may, upon recommendation of the president, terminate a full-time faculty employee under continuing contract, or return the employee to an annual contract, for failure to meet post-award performance criteria, or, for cause in accordance with college policies and procedures upon recommendation by the president and approval by the board.
Fla. Admin. Code R. 6A-14.0411(7)(a). The administrative rule specifies two
paths to employee termination: (1) a faculty member’s failure to meet post-
award performance criteria, or (2) for cause in accordance with college
policies and procedures. The College’s written policy is consistent with the
administrative rule; Dr. Walton’s continuing contract is likewise consistent,
and also includes resignation and “discontinuance” of Dr. Walton’s position
as grounds for termination.
To begin, Dr. Walton argues, in part, that his dismissal was improper
because he did not fail to meet any post-award performance criteria by which
faculty are to be periodically reviewed. The purpose of the criteria is to
“contribute to the continual growth and development of faculty,” such that
each district board of trustees “shall adopt policy requiring periodic post-
award performance reviews for faculty under continuing contract” using the
same criteria for granting a continuing contract. Id. R. 6A-14.0411(6). A
poorly performing faculty member who falls short of meeting established
3 post-award criteria can be let go without a finding that his termination was
“for cause.” It is an independent basis for terminating a faculty member under
a continuing contract.
It is conceded that Dr. Walton performed commendably in his
academic life, including his teaching of the many courses that he was
assigned; his classroom performance and willingness to take on a heavy
workload were recognized as admirable. The College claims that Dr.
Walton’s termination is justified because he failed to teach enough
anthropology classes. Yet no post-award criteria had been established by
which the College could penalize Dr. Walton for teaching an insufficient
number of anthropology courses and too many student success courses, the
latter typically being relegated for economic reasons to adjunct or part-time
professors, rather than full-time professors. That the College had unilateral
but unadopted and undisclosed expectations that a full-time professor must
teach a certain percentage or number of courses within his discipline rather
than student success courses does not matter; those expectations must be
formally established as criteria pursuant to the administrative rule and the
College’s policy, and then made known to professors to be actionable, which
was not done as to Dr. Walton. As such, to the extent that Dr. Walton’s
termination was based on the College’s view that his anthropology workload
4 did not meet its unilateral, unadopted, and unwritten expectations, that
conclusion was erroneous as a basis to terminate him, whether “for cause”
or otherwise. Indeed, Dr. Walton could not be terminated “for cause” due to
inadequate anthropology courses; doing so would make the “failure to meet
post-award performance criteria” portion of the administrative rule
superfluous. See Holmes v. Fla. A & M Univ. by & Through Bd. of Trs., 260
So. 3d 400, 406 (Fla. 1st DCA 2018).
That said, a faculty member, even if stellar in his performance, can be
terminated under a continuing contract in Florida where a justifiable
determination is made that the adverse employment action is “for cause in
accordance with college policies and procedures.” The question presented
in this case is whether the evidentiary record supports the College’s
determination that discontinuing anthropology as an academic discipline
made available to its students was justified, thereby providing sufficient legal
cause for terminating its only anthropology professor, Dr. Walton.
As an initial matter, the meaning of the phrase “for cause” in the
continuing contract is a subject of substantial debate, justifiably so. It is not
defined in the contract, nor is it defined in any applicable administrative rule,
statute, or policy. According to the foremost legal dictionary, “for cause” is
defined as “[f]or a legal reason or ground. The phrase expresses a common
5 standard governing the removal of a civil servant or an employee under
contract.” For Cause, Black’s Law Dictionary 673 (8th ed. 2004); see, e.g.,
In re Piazza, 719 F.3d 1253, 1261 (11th Cir. 2013).1 Dictionary definitions
provide some guidance, but not much.
Likewise, caselaw is sparse as to the definitional breadth of “for cause”
terminations in the education realm. In Florida, the general notion of “good
cause”—a close cousin of “cause”—is that its lack of a definition gives
educational institutions a degree of leeway to determine what is a sufficient
basis for termination. For example, in Spurlin v. School Board of Sarasota
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
DAVID WALTON,
Appellant,
v. Case No. 5D22-794 LT Case No. 2021-01
LAKE-SUMTER STATE COLLEGE,
Appellee.
________________________________/
Opinion filed April 14, 2023
Administrative Appeal from the Lake-Sumter State College.
Tobe M. Lev, of Lev & Siwica, P.A., Orlando, for Appellant.
Brian Koji, of Allen, Norton & Blue, P.A., Tampa, for Appellee.
MAKAR, J.
David Walton, Ph. D., was hired by Lake-Sumter State College as an
anthropology instructor in August 2015 and, after five years of service,
became eligible for, and was awarded, a continuing contract on July 31,
1 2020. The continuing contract, which is a form of academic tenure, stated
that Dr. Walton’s employment would remain in force from year to year “unless
terminated by mutual consent in writing by the parties hereto or unless [Dr.
Walton] is suspended or removed for cause pursuant to law and rules of the
State Board of Education and the Board.” (Emphasis added). Less than a
year later, on June 3, 2021, Dr. Walton was informed via letter from the
College’s president that his continuing contract would terminate at month’s
end and not be renewed. Dr. Walton elected to contest his termination in an
administrative hearing, which resulted in a recommended order upholding
the College’s action that the College’s board affirmed. Dr. Walton now
appeals.
Dr. Walton raises several issues on appeal, which we distill into two
distinct ones. The first is whether Dr. Walton’s termination was proper based
on the College’s determination that his workload, which included
anthropology courses and student success courses, was unsatisfactory and
thereby sufficient cause to end his contract. The second is whether the
College’s determination that demand for anthropology courses had declined
to the point that eliminating them entirely, and thereby also terminating Dr.
Walton’s employment, was sufficient cause under the continuing contract.
2 The applicable Florida administrative rule, entitled “Employment
Contracts for Full-Time Faculty,” states:
Each district board of trustees may, upon recommendation of the president, terminate a full-time faculty employee under continuing contract, or return the employee to an annual contract, for failure to meet post-award performance criteria, or, for cause in accordance with college policies and procedures upon recommendation by the president and approval by the board.
Fla. Admin. Code R. 6A-14.0411(7)(a). The administrative rule specifies two
paths to employee termination: (1) a faculty member’s failure to meet post-
award performance criteria, or (2) for cause in accordance with college
policies and procedures. The College’s written policy is consistent with the
administrative rule; Dr. Walton’s continuing contract is likewise consistent,
and also includes resignation and “discontinuance” of Dr. Walton’s position
as grounds for termination.
To begin, Dr. Walton argues, in part, that his dismissal was improper
because he did not fail to meet any post-award performance criteria by which
faculty are to be periodically reviewed. The purpose of the criteria is to
“contribute to the continual growth and development of faculty,” such that
each district board of trustees “shall adopt policy requiring periodic post-
award performance reviews for faculty under continuing contract” using the
same criteria for granting a continuing contract. Id. R. 6A-14.0411(6). A
poorly performing faculty member who falls short of meeting established
3 post-award criteria can be let go without a finding that his termination was
“for cause.” It is an independent basis for terminating a faculty member under
a continuing contract.
It is conceded that Dr. Walton performed commendably in his
academic life, including his teaching of the many courses that he was
assigned; his classroom performance and willingness to take on a heavy
workload were recognized as admirable. The College claims that Dr.
Walton’s termination is justified because he failed to teach enough
anthropology classes. Yet no post-award criteria had been established by
which the College could penalize Dr. Walton for teaching an insufficient
number of anthropology courses and too many student success courses, the
latter typically being relegated for economic reasons to adjunct or part-time
professors, rather than full-time professors. That the College had unilateral
but unadopted and undisclosed expectations that a full-time professor must
teach a certain percentage or number of courses within his discipline rather
than student success courses does not matter; those expectations must be
formally established as criteria pursuant to the administrative rule and the
College’s policy, and then made known to professors to be actionable, which
was not done as to Dr. Walton. As such, to the extent that Dr. Walton’s
termination was based on the College’s view that his anthropology workload
4 did not meet its unilateral, unadopted, and unwritten expectations, that
conclusion was erroneous as a basis to terminate him, whether “for cause”
or otherwise. Indeed, Dr. Walton could not be terminated “for cause” due to
inadequate anthropology courses; doing so would make the “failure to meet
post-award performance criteria” portion of the administrative rule
superfluous. See Holmes v. Fla. A & M Univ. by & Through Bd. of Trs., 260
So. 3d 400, 406 (Fla. 1st DCA 2018).
That said, a faculty member, even if stellar in his performance, can be
terminated under a continuing contract in Florida where a justifiable
determination is made that the adverse employment action is “for cause in
accordance with college policies and procedures.” The question presented
in this case is whether the evidentiary record supports the College’s
determination that discontinuing anthropology as an academic discipline
made available to its students was justified, thereby providing sufficient legal
cause for terminating its only anthropology professor, Dr. Walton.
As an initial matter, the meaning of the phrase “for cause” in the
continuing contract is a subject of substantial debate, justifiably so. It is not
defined in the contract, nor is it defined in any applicable administrative rule,
statute, or policy. According to the foremost legal dictionary, “for cause” is
defined as “[f]or a legal reason or ground. The phrase expresses a common
5 standard governing the removal of a civil servant or an employee under
contract.” For Cause, Black’s Law Dictionary 673 (8th ed. 2004); see, e.g.,
In re Piazza, 719 F.3d 1253, 1261 (11th Cir. 2013).1 Dictionary definitions
provide some guidance, but not much.
Likewise, caselaw is sparse as to the definitional breadth of “for cause”
terminations in the education realm. In Florida, the general notion of “good
cause”—a close cousin of “cause”—is that its lack of a definition gives
educational institutions a degree of leeway to determine what is a sufficient
basis for termination. For example, in Spurlin v. School Board of Sarasota
County, 520 So. 2d 294, 296 (Fla. 2d DCA 1988), the deputy school
superintendent argued that “good cause” for termination was limited to the
“seven-deadly sins” set out in the statute then applicable to teachers (i.e.,
immorality, misconduct in office, incompetency, gross insubordination, willful
neglect of duty, drunkenness, and conviction of a crime involving moral
turpitude).
1 The Eleventh Circuit in Piazza quotes Black’s Law Dictionary but adds that the understanding of “cause” “is not limited to legal dictionaries. Non-legal sources from 1978 to the present have consistently defined ‘cause’ as ‘[g]ood or sufficient reason,’ as ‘[g]ood, proper, or adequate ground of action,’ or as ‘reasonable grounds for doing . . . something.’” 719 F.3d at 1261 (dictionary citations omitted).
6 The Second District rejected this narrow view, concluding the “good
cause” standard that applied to the deputy school superintendent went
beyond the seven offenses because the phrase “good cause” was
undefined. The court stated that as “amorphous and unbounded as the
words ‘good cause’ may seem when not specifically elaborated upon by the
legislature, we are unwilling to ascribe to the expression a limitation which
forecloses a school board from exercising its ability to decline a
recommendation for a lawful, rational, non-arbitrary, non-statutory reason.”
Id. at 296 (emphasis added). It also noted the existence of “significant
considerations, both practical and literal, for not binding a school board to a
definition of ‘good cause’” in an overly cramped way. Id.; see also Dietz v.
Lee Cnty. Sch. Bd., 647 So. 2d 217, 218 (Fla. 2d DCA 1994) (Blue, J.,
specially concurring) (noting that “by failing to further define just cause, the
legislature gave school boards broad discretion to determine when a teacher
may be dismissed during the contract term”). A synthesis of the admittedly
limited caselaw supports the view that a termination “for cause” under a
continuing contract is permissible if an educational institution proves a lawful,
rational, non-arbitrary reason for doing so and no other impediment, such as
a lack of due process, stands in the way. See generally Gwen Seaquist &
Eileen Kelly, Faculty Dismissal Because of Enrollment Declines, 28 J.L. &
7 Educ. 193, 207 (1999) (“For tenured, public faculty . . . the courts have
affirmed downsizing in those instances where the faculty received notice and
a hearing and the institution could demonstrate the need for the cuts. Only
in the cases of violations of an institution’s internal procedures have faculty
successfully challenged their dismissal.”).
On this basis, we conclude that the College has the legal authority to
discontinue a discipline due to a documented lack of student interest and
enrollment. As a general matter, a college or university—like other
educational institutions serving their communities—has the discretion, within
legislative and institutional parameters, to define the scope of its course
offerings. The College, believing that anthropology would generate student
interest, hired Dr. Walton and marketed the discipline, hoping for sufficient
enrollment in the various courses he offered; it even awarded him a
continuing contract. When those efforts at establishing a beachhead for
anthropology courses were unsuccessful, nothing legally stood in the
College’s way from reassessing the ongoing viability of the discipline and
ultimately making the difficult decision to end the endeavor, particularly in the
face of declining overall enrollments. Discontinuation of anthropology was a
lawful and rational option.
8 We note that the administrative rule also allows for the termination of
a full-time faculty member under continuing contract upon “consolidation,
reduction, or elimination of an institution’s program.” Fla. Admin. Code R. 6A-
14.0411(7)(b). The parties agree, however, that anthropology is not a
program; instead, it is a “discipline” within the general education program. If
an institution can terminate a full-time faculty member under a continuing
contract for elimination of a program, it implicitly has the right to do so when
only a discipline is eliminated.
Next, an inevitable result when a discipline is discontinued is that a
college or university must decide how it will handle the employment of
affected faculty and staff, perhaps by reassigning them to other disciplines,
if feasible, or by terminating them. The authority for doing the latter is
grounded in the principle that “for cause” terminations include those
necessarily resulting from the legally justified discontinuation of a discipline.
Dr. Walton claims that his termination was improper because the
College president’s termination letter preceded the Board’s final action and
that the “discontinuance” of his professorship required more procedural
protections, but he failed to make these arguments prior to this appeal,
relying now on evidence not previously presented in the administrative
proceeding. To be consistent with the administrative rule, the College
9 president should have recommended Dr. Walton’s dismissal, rather than
phrasing the letter as a termination, under the “for cause” standard. Fla.
Admin. Code R. 6A-14.0411(7)(a) (“Each district board of trustees may, upon
recommendation of the president, terminate a full-time faculty employee
under continuing contract . . . .”). Even so, the purported oversight is
harmless because Dr. Walton received an administrative hearing with full
due process that protected his vested contractual rights. Moreover, the
College sought to discontinue anthropology as a discipline; it did not seek to
discontinue Dr. Walton’s specific position while retaining anthropology. Had
it sought only the latter, the contractual provision upon which Dr. Walton
relies, but did not raise below, might have been implicated.
The remaining factual question is whether the College adequately
documented its decision in the evidentiary proceedings in this case, such
that its determination to terminate Dr. Walton was based on sufficient cause
to discontinue anthropology as a discipline, which requires competent
substantial evidence.
As background, the College, which has about 67-70 full-time faculty
members, provides educational services in Lake and Sumter Counties at
three campuses (Leesburg, Clermont, and Sumterville). Like many
educational institutions, the College had experienced significant declining
10 enrollment since the peak in the 2019-2020 term. As for anthropology,
although efforts were made to increase student awareness of and enrollment
in various course offerings, the number of students enrolled was minimal.
For example, during the 2019 Fall Semester, when overall student
enrollment topped 5,000 college-wide, the number of students interested in
anthropology justified only two courses. Dr. Walton taught both courses as
well as student success courses to balance out his teaching load. His
workload, by itself, was not a basis for his termination because no post-
award criteria had been established; but it is a factor demonstrating that
student interest in anthropology was waning. Indeed, since before and after
Dr. Walton was awarded a continuing contract, the specter of low student
enrollment in anthropology courses in the Lake-Sumter State College system
hung over the curriculum. Ongoing low student enrollments in anthropology
courses continually required their cancellation, notwithstanding efforts by the
College and Dr. Walton to stave off what became inevitable: the
discontinuation of anthropology as a discipline for undergraduate
exploration.
Both Dr. Walton and the College raise several other points and
counterpoints in their legal papers, but in the end the overarching legal
question is whether the College had the legal authority to discontinue a
11 discipline, the study of anthropology, based on a lack of student interest and
enrollment and whether it adequately documented its decision in the
evidentiary proceedings in this case thereby justifying its decision to
terminate Dr. Walton, its only anthropology professor, notwithstanding his
unblemished performance. We conclude that it did.
AFFIRMED.
LAMBERT, C.J., concurs. HARRIS, J., concurs in part, and dissents in part, with opinion.
12 5D22-794 LT Case No. 2021-01
HARRIS, J., concurring, in part, and dissenting, in part.
I am in full agreement with the majority’s conclusion that it would have
been improper for Lake-Sumter State College to terminate the employment
of Dr. Walton based on a determination that his anthropology workload “did
not meet [the College’s] unilateral, unadopted, and unwritten expectations.”
However, I would further conclude that the College was not legally justified
in terminating Dr. Walton’s continuing contract for cause under the facts of
this case and would reverse the final order.
Dr. Walton’s contract, drafted by and presented to him by the College,
sets forth four separate ways in which it could be terminated: by mutual
consent, suspension or removal for cause, by written resignation, or because
the position has been discontinued. The majority correctly notes that there is
no precise definition of “for cause” and then concludes that elimination of Dr.
Walton’s anthropology courses could constitute good cause sufficient to
terminate his contract.
My reading of the contract leads me to the opposite conclusion. By
listing discontinuance of Dr. Walton’s position as a separate, distinct, and
alternative basis for termination, that ground is specifically excluded from
whatever “good cause” is ultimately determined to be.
13 While the College certainly has the ability to discontinue anthropology
as a discipline for undergraduate exploration, such a determination cannot,
under the terms of Dr. Walton’s contract, constitute good cause for his
termination. The reality is that Dr. Walton’s contract was unilaterally
terminated by the College’s president well before the Board made any
decision regarding program discontinuance. None of the contractual grounds
for termination existed at the time Dr. Walton was terminated. I would
therefore vacate the College’s final order and remand with instructions to
immediately reinstate Dr. Walton unless and until such time as the College
properly terminates his continuing contract of employment.