03-004263SED Britton Townsend vs. Department Of Education Status: Closed Recommended Order on Tuesday, April 13, 2004.

Summary: Petitioner`s position was properly reclassified to Selected Exempt Service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTON TOWNSEND, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4263SED

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 2, 2004, an administrative hearing in this case

was held in Palmetto, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Britton Townsend, pro se

331 11th Avenue, West

Palmetto, Florida 34221

For Respondent: Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Boulevard

Hyde Park Plaza, Suite 350

Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's

employment position was properly reclassified from Career

Service to Selected Exempt Service pursuant to Section

110.205(2)(x), Florida Statutes (2001).

PRELIMINA RY STATEMENT

In July 2001, the Department of Education (Respondent)

reclassified the position of "Vocational Rehabilitation

Supervisor" from the Career Service System to the Selected

Exempt System pursuant to Section 110.205(2(x), Florida Statutes

(2001). At the time of the reclassification, Britton Townsend

(Petitioner) was employed by the Respondent as a Vocational

Rehabilitation Supervisor.

Following the decision rendered in Reinshuttle v. Agency

for Health Care Admin. , 849 So. 2d 434 (Fla. 1st DCA 20 03), the

Petitioner was notified by Respondent's letter dated July 22,

2003, that he could file a petition challenging the

reclassification of his position. The Petitioner petitioned for

review of the reclassification. The Respondent forwarded the

petiti on to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf.

The Respondent presented the testimony of one witness, and had

Exhibits numbered 1 through 5, 7, and 8 admitted into evidence.

The Respondent filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was

employed by the Respondent as a Vocational Rehabilitation

Supervisor.

2. As a Vocational Rehabil itation Supervisor, the

Petitioner was responsible for supervising the performance of

counselors and other employees in the Manatee County office.

3. The Manatee County office employed nine persons,

including five Vocational Counselors and four clerical and

administrative employees.

4. The position description applicable to the Petitioner's

employment provided that he was responsible for hiring,

evaluating, training, and managing employees in the office. He

was responsible for managing and coordinating the fiscal

resources available to the office. He was responsible for

recruitment of new employees, and for the performance evaluation

of existing employees.

5. The Petitioner developed criteria used to hire new

employees, created interview questions, and participated in the

interview process. The Petitioner's employment recommendations

were always approved by his supervisor.

6. The review of the Petitioner's job performance focused

primarily on his success in supervising his employees. He

received a n evaluation of "excellent" and "effective" in such

categories as planning based on the missions and goals of the

agency, implementation of quality control standards, efficient

work organization, budget management, leadership, staff

management and discipli ne, and effective evaluation of

subordinates.

7. As part of his supervisory responsibilities, the

Petitioner was responsible for approval of all leave requests

and travel reimbursement. He was also responsible for the

employee evaluation process, inclu ding recommending staff

members for performance based bonuses.

8. The Petitioner was also responsible for any

disciplinary action taken related to his subordinate employees.

9. There is no evidence that the Petitioner did not

perform his duties as desc ribed by the applicable position

description. At the hearing, the Petitioner acknowledged that

he was the supervisor for the office and its employees.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to a nd subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2003).

11. Section 110.602, Florida Statutes (2001), creates the

Selected Exempt Service employment classification as follows:

Selected Exempt Service; creation,

coverage. -- The Selected Exe mpt Service is

created as a separate system of personnel

administration for select exempt positions.

Such positions shall include, and shall be

limited to, those positions which are exempt

from the Career Service System pursuant to

s. 110.205 (2) and (5) an d for which the

salaries and benefits are set by the

department in accordance with the rules of

the Selected Exempt Service. The department

shall designate all positions included in

the Selected Exempt Service as either

managerial/policymaking, profession al, or

nonmanagerial/nonpolicymaking.

12. In relevant part, Section 110.205(2)(x), Florida

Statutes (2001), exempts from the Career Service System, certain

employees described as follows:

Effective July 1, 2001, managerial

employees, as defined in s. 447 .203 (4),

confidential employees, as defined in s.

447.203 (5), and supervisory employees who

spend the majority of their time

communicating with, motivating, training,

and evaluating employees, and planning and

directing employees' work, and who have the

au thority to hire, transfer, suspend, lay

off, recall, promote, discharge, assign,

reward, or discipline subordinate employees

or effectively recommend such action ,

including all employees serving as

supervisors, administrators, and directors.

(Emphasis sup plied.)

13. The Respondent has the burden of establishing by a

preponderance of the evidence that the reclassification of the

Petitioner's employment position was proper under the applicable

statutes. Florida Department of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st

DCA 1977). See also Section 120.57(1)(j), Florida Statutes

(2003), providing that "[f]indings of fact shall be based upon a

prep onderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . ." In this case, the burden has been met.

14. The Petitioner's employment position, both as

identified in the position des cription, and as actually

performed, meet the definition of "supervisory" as described

above. Accordingly, the reclassification of the position from

Career Service to Selected Exempt is clearly authorized by the

statute.

15. The Petitioner testified at t he hearing that in

December of 2002, his employment was terminated. The Petitioner

disputes the reason provided for the termination of his

employment. Such issues are outside the scope of this

proceeding. Section 110.604, Florida Statutes (2003), provid es

as follows:

Suspensions, dismissals, reductions in pay,

demotions, and transfers. -- Employees in the

Selected Exempt Service shall serve at the

pleasure of the agency head and shall be

subject to suspension, dismissal, reduction

in pay, demotion, transfe r, or other

personnel action at the discretion of the

agency head. Such personnel actions are

exempt from the provisions of chapter 120.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Education enter a Final

Order finding that the "Vocational Rehabilitation Supervisor"

position held by Britton Townsend on July 1, 2001, was properly

classified into the Selected Exempt Service.

DONE AND ORDERED this 13th day of April, 2004, in

Talla hassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2004.

COPIES FURNISHED :

Margaret O'Sullivan Parker, Esquire

Department of Education

Office of the General Counsel

1244 Florida Education Center

Tallahassee, Florida 32399 - 0400

Britton Townsend

331 11th Avenue, West

Palmetto, Florida 34221

Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

Hyde Park Plaza, Suite 350

324 South Hyde Park Boulevard

Tampa, Florida 33606

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

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 b e filed with the agency that

will issue the Final Order in this case.