Resident's lawsuit claims St. Johns County's memorandum with UF violates state law
Posted: June 4, 2016 - 12:07am
By JAKE MARTIN
jake.martin@staugustine.com
A lawsuit filed against St. Johns County and the University of Florida’s Board of Trustees claims a memorandum of understanding between the two entities unlawfully grants the university authority to hire faculty and staff at the county’s Agricultural Center without first getting approval from the county.
St. Johns County resident Charlie Henley, a retired attorney, filed the complaint Friday with the Seventh Judicial Circuit. He claims the memorandum is in violation of Florida Statute 1004.37, which deals with cooperation between counties and UF regarding extension programs, and is seeking a judgment declaring the memorandum invalid.
“Both the County and the University maintain that [Florida Statute 1004.37(3)] is not mandatory but permissive and does not require County approval of faculty and staff at the County’s extension facility,” Henley’s complaint says. “Plaintiff is in need of a declaration as to his and other St. Johns County residents’ and taxpayers’ rights, status, immunities, powers, and/or privileges relative to validity of the Agreement.”
The county on Friday issued the following statement: “The Office of the County Attorney is currently reviewing the complaint and will respond accordingly at the proper time.”
A spokeswoman for UF on Friday said the university believes its memorandum of understanding with St. Johns County is consistent with state law but declined to comment further, citing the litigation.
Henley’s complaint claims the university, since the memorandum’s implementation, has hired several extension employees who are working, or have worked, at the extension office without approval from the county. The county, per the memorandum, has continued to pay its proportionate share of funding for salaries and fringe benefits of extension employees, including those hired by the university without county approval.
Of the 12 extension positions identified in the county’s projected payroll budget for the 2015 fiscal year, eight were paid 100 percent by the county, three were paid 60 percent by the state and 40 percent by the county, and one was paid 20 percent by the state and 80 percent by the county.
The county’s reimbursement to UF for salaries and benefits for the 2015 fiscal year was $501,478 but budgeted at $582,715. Budgeted for the 2016 fiscal year was $600,200, which has again been requested for the 2017 fiscal year, according to this year’s Administrator’s Budget Workbook.
Henley told The Record that the county, with the passing of the memorandum, effectively relinquished its obligation and duty to authorize the spending of taxpayers’ dollars and unlawfully put that power in the hands of UF.
In addition to a declaratory judgment regarding the memorandum’s validity, Henley is requesting an order for the university to return to the county its proportionate share of the salaries and fringe benefits paid to employees hired by the university without county approval; an order requiring the university to submit to the county, for its approval or disapproval, the names of all current employees hired by the university but not approved by the county; an injunction prohibiting the university from hire employees without first receiving approval from the county; and recovery of attorney’s fees.
St. Johns County Commissioners had approved the memorandum with UF for extension services as a consent agenda item at their meeting on June 17, 2014.
As written in the memorandum, which went into effect July 3, 2014: “To assure that educational programs meet the needs of local clientele, and comply with Section 1004.37 of the Florida Statutes, it is essential that the University of Florida and the County identify respective responsibilities.”
The Agricultural Center is county, not UF, property although UF is responsible for the programs there. According to county documents, county responsibility for recurring operating costs and non-recurring capital costs at the extension were $94,326 and $27,497, respectively, for the 2015 fiscal year.
As laid out in the memorandum, with respect to broad program authorization, “all extension programs within the county are subject to the county authorization and approval.”
“Substantive program changes (additions, deletions, etc.) are subject to county approval prior to implementation,” the memorandum continues.
It is the university’s responsibility, per the memorandum, to “recruit, interview, screen and hire candidates for employment as extension faculty and staff,” but the university is not required to submit recommendations to the county for approval before a candidate is hired.
However, as written in Florida Statute 1004.37(3): “Boards of county commissioners or other legally constituted governing bodies will approve or disapprove of persons recommended for extension positions in the county.”
If a county’s governing body notifies the extension that it wants a list of three qualified candidates, the extension service “shall, for each position, make its recommendation by submitting a list of not fewer than three qualified persons, or all qualified persons if three or fewer.”
Even without such a resolution, the statute says “the extension service shall recommend one qualified candidate to the governing body.”
County attorney Patrick McCormack told The Record in May he did not think UF’s recent selection for a vacant horticulture agent position would have to come up before the Board of County Commissioners for consideration.
He said some of the statutory language only applies where a staff member is “recommended” to the county, which, he added, does not occur through the current agreement. He also said the statuses of extension employees, per the agreement, are not county personnel issues but rather UF personnel issues.
There are no reported cases specifically interpreting Florida Statute 1004.37. However, McCormack said the Florida Supreme Court has described that when directions of a statute pertain to “the proper, orderly and prompt conduct of business merely,” the provision may generally be regarded as directory and not mandatory.
He said the memorandum was mutually negotiated and that the county’s interest in entering the agreement stemmed from a situation in which the county was “forced to defend” personnel-related complaints against a university staff member the county could not control.
“The county does not want to be liable for something it does not have control over,” he said.
McCormack said the county is not alone in reacting to liability issues and that other counties, such as Leon County, have, or are considering, similar agreements.
“Any county agreement can be re-looked at,” he said. “I don’t think there’s necessarily any need to do that in this instance, but the county may consider revisions if needed to optimize the program.”
McCormack did not participate in the negotiation of the memorandum.
According to its website, UF/IFAS has extension offices in each of Florida’s 67 counties. But not all counties have memorandums of understanding with the university.
Polk, Lake, Martin, Sumter and Alachua counties all have agreements with the university requiring recommendations — for the respective county’s approval or disapproval — of qualified applicants for employment to vacant or new extension positions.
There is no explicit mention in St. Johns County’s memorandum of its involvement in the hiring or firing of extension employees. However, the terms of the memorandum changed the status of several employees at the Agricultural Center from long-standing county workers to non-tenured and non-permanent employees of UF. Among them was Keith Fuller, the former horticulture extension agent removed from his post last year by UF.
Fuller, who has also been an unpaid columnist for The Record for three decades, was given notice by UF of the non-renewal of his annual contract on Aug. 4,. Although his contract had been renewed only the month before, Fuller was transferred to the Florida Partnership for Water, Agriculture, and Community Sustainability in Hastings for the subsequent year. He is to be terminated in August at the expiration of his contract.
Administrators with the UF Institute of Food and Agricultural Sciences have said the university is not required to provide justification for Fuller’s dismissal because he does not have permanent status with the university, but administrators have also cited “personnel infractions” in meetings and communications with extension volunteers and community members.
County officials have said limiting liability of tenured faculty is the reason why St. Johns County has refused to amend or cancel the memorandum to bring Fuller back as horticulture extension agent.
Local opponents of the memorandum — many of whom are Fuller supporters — have said the county is paying for less responsibility, but also for less control, particularly in matters of the selection or retention of employees.
The county has continued to pay 100 percent of Fuller’s salary and benefits. According to county documents, Fuller’s salary for the 2015 fiscal year was $51,594.71 plus $14,343.33 in pooled fringe benefits.
UF/IFAS administrators told extension stakeholders in May that Fuller will be replaced by Terra Freeman, a Level II UF employee who holds a master’s degree in landscape design from a Massachusetts school. Fuller was a Level I employee due to his degree level. UF advertised the position at Levels II-IV, meaning the replacement would cost county taxpayers $10,000 to $60,000 more in annual salary.
Freeman is expected to start at the St. Johns County Extension on July 1. Fuller, in the meantime, is still in Step III arbitration of his grievance process with UF.
St. Johns County’s agreement with UF is effective through Sept. 30, 2019, barring modification or earlier termination. According to the memorandum, either party may terminate the agreement, without penalty or cause, with one year’s written notice to the other party. The memorandum may also be extended in five-year increments by mutual written agreement — and with formal approval by the board.
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