03-004216SED Joseph A. Conley vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, March 31, 2004.

Summary: Respondent proved that it properly reclassified Petitioner`s employment position from Career Service to Select Exempt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. CONLEY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4216SED

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORD ER

Pursuant to notice, an administrative hearing was held in

the above - styled case on February 3, 2004, in Tampa, Florida,

before William R. Pfeiffer, a designated Administrative Law

Judge (ALJ) of the Division of Administrative Hearings (DOAH).

APPEARANC ES

For Petitioner: Joseph A. Conley, Jr., pro se

8511 Sunflower Lane

Bayonet Point, Florida 34667

For Respondent: Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 350

Tampa, Florida 33606

Jennifer Lima - Smith, Esquire

Department of Children and

Family Services

9393 Florida Avenue, Room 902

Tampa, Florida 33612 - 7236

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent properly

reclassified Petitioner's employment position from Career

Service status to Selected Exempt Se rvice status.

PRELIMINARY STATEMENT

On July 29, 2003, Respondent advised Petitioner that his

position of employment with the State of Florida was being

reclassified from Career Service status to Selected Exempt

Service status in accordance with the Servi ce First initiative

Chapter 2001 - 43, Laws of Florida. Petitioner timely filed a

petition challenging the reclassification, and a final hearing

was held before the undersigned on February 3, 2004, in Tampa,

Florida.

At final hearing, Petitioner appeared pr o se and testified

on his own behalf. Petitioner introduced Composite Exhibit 1

which was received into evidence. Respondent presented the

testimony of Patty Roberts, Roseann Liriano, Nancy Levy, and

James Saxon. Respondent introduced Composite Exhibits 1

through 6 which were received into evidence. The one - volume

Transcript of the final hearing was filed with DOAH on March 16,

2004. Respondent timely filed its terse proposed recommended

order on March 16, 2004, which was carefully considered.

FINDING S OF FACT

1. In 2001, the Florida Legislature enacted a substantial

revision to Florida's civil service system commonly referred to

as the "Service First" initiative. See Ch. 2001 - 43, Laws

of Fla. Among the significant changes, the revision redefined

t he parameters of the Selected Exempt Service classification for

public employees. In essence, the Selected Exempt Service

classification was expanded to include most of the supervisory

level employee classifications which had previously been

identified as part of the Career Service classification.

2. The statutory changes brought about by the Service

First initiative became effective on May 14, 2001. Id. at 15.

3. Petitioner was employed under the Career Service

classification by the Department of Chi ldren and Family Services

since 1990, and served as a Public Assistance Specialist

Supervisor, position number 64817, in the Suncoast Region.

4. In light of Section 110.25(2)(x), Florida Statutes

(2003), Respondent reclassified Petitioner's Career Servi ce

position to Selected Exempt Service status in July 2003.

5. Petitioner's Career Service position description

remained unchanged when it was reclassified to Select Exempt

Service status. The position description specifically

identifies supervisory res ponsibilities and states:

Duties and Responsibilities: This is a

professional position primarily responsible

for the supervision of a public assistance

unit for determining the initial and ongoing

eligibility of applicants for programs such

as Food Stamps , Medicaid, ICP, OSS, Waiver,

etc.

6. More specifically, pursuant to the written position

description, the Public Assistance Specialist Supervisor is

required to "supervise the appointment and case management

system" to ensure that subordinates are cor rectly processing

applications. The position is responsible for evaluating all

scheduled work and appropriately reassigning work.

7. In addition, pursuant to the position description, the

supervisor shall analyze work reports provided by subordinate

em ployees, educate staff, schedule case reviews with supervised

employees, and conduct monthly conferences with each employee.

The supervisor is obligated to review their performance,

identify their strengths and weaknesses, and provide supervisory

assistan ce in achieving acceptable standards. The supervisor is

required to prepare written evaluations, conduct staff meetings,

and develop in - service training for under achieving employees.

8. Petitioner's actual duties and work - load were

consistent wit h the written position description. Petitioner

interviewed applicants and recommended candidates for job

vacancies in his area. He supervised subordinates, recommended

and levied appropriate corrective action, and organized and

distributed work. Petitio ner set organizational goals,

motivated employees, trained and developed their technical

skills, resolved employee problems, and implemented performance

and quality control standards.

9. Petitioner was responsible for ensuring that the staff

assigned to him maintained at least a 90 percent accuracy rate

on case reviews processed and a 96 percent processing rate on

unit assigned client applications.

10. Petitioner admits that his supervisory duties consumed

most of his time. He acknowledges that clien t interviews were

not part of his normal duties and concedes that he regularly

supervised employees, provided feedback to employees, and

performed evaluations. In addition, he agrees that his

recommendations regarding discipline were usually followed.

11. Petitioner routinely led staff meetings with his

subordinates and frequently met with them individually. He

controlled work - flow and made changes as he deemed appropriate

within his department. Petitioner admits that he functioned as

the supervisor in an area that was distinct and separate from

the other units.

12. The evidence presented at hearing establishes that

Petitioner's written and actual duties were supervisory in

nature, and he spent the majority of his time performing those

duties.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2003).

14. Although neither party addressed the issue of burden

of proof, Respondent is seeking to change Petitioner's existing

status quo and reclassify his employment position from Career

Service status to Selected Exempt Service status. Hence,

Respondent has the burden of proving its claim by a

pre ponderance of the evidence. See Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981); The Board of Trustees of the Northwest Florida

Community Hospital v. Department of Management Services , 651

So. 2d 170 (Fla. 1st DCA 1995)(" In accordance with the general

rule, applicable in court proceedings, 'the burden of proof,

apart from statute, is on the party asserting the affirmative of

an issue before an administrative tribunal.'"); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977); § 120.57(1)(j), Fla. Stat. (2002)("Findings

of fact shall be based upon a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by s tatute, and shall be based exclusively

on the evidence of record and on matters officially

recognized.").

15. Pursuant to Subsection 110.205(2)(x), Florida Statutes

(2003), employees exempt from Career Service status include:

supe rvisory employees who s pend the majority

of their time communicating with,

motivating, training, and evaluating

employees, and planning and directing

employees' work, and who have the authority

to hire, transfer, suspend, lay off, recall,

promote, discharge, assign, reward, or

d iscipline subordinate employees or

effectively recommend such action, including

all employees serving as supervisors,

administrators, and directors.

16. Respondent sufficiently proved that Petitioner spent

the majority of his time motivating, training, evaluating, and

directing employees' work. Furthermore, Respondent adequately

demonstrated that Petitioner had the authority to hire and

discipline subordinate employees or effectively recommend such

action. Based upon the evidence, Respondent properly

transferred Petitioner's Career Service position of Public

Assistance Specialist Supervisor to the Selected Exempt Service

status.

17. While Petitioner seemed to suggest that the Florida

Legislature lacked the authority to unilaterally, retroactively,

and statutorily rescind his existing property right of

employment within a protected class, the undersigned does not

have the jurisdiction to determine the constitutionality of the

statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is

RECOMMENDED that Respondent enter a final order approving

Petitioner's reclassification.

DONE AND ENTERED this 31st day of March, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

Adminis trative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 31st day of March, 2004.

COPIES FURNISHED :

Joseph A. Conley, Jr.

8511 Sunflower Lane

Bayonet Point, Florida 34667

Jennifer Lima - Smith, Esquire

Department of Children and

Family Services

9393 Florida Avenue, Room 902

Tampa, Fl orida 33612 - 7236

Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 350

Tampa, Florida 33606

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Paul Flounlacker , Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulev ard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.