03-004285SED Raymond Van Loon vs. Department Of Health Status: Closed Recommended Order on Wednesday, April 21, 2004.

Summary: Selected Exempt reclassification is appropriate for the supervisor of a permitting staff and is based also on the requirement for licensure as a professional engineer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND VAN LOON, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4285SED

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 16, 2004, a n administrative hearing in this case

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

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Gaynham, Esquire

Patterson & Traynha m

Post Office Box 4289

315 Beard Street

Tallahassee, Florida 32315

Aaron J. Hilligas, Esquire

AFSCME Council 79

3064 Highland Oaks Terrace

Tallahassee, Florida 32301

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).

PRELIMINARY STATEMEN T

On April 23, 2001, Raymond Van Loon (Petitioner) became

employed by the Hillsborough County Health Department as a

Professional Engineer III. On July 1, 2001, the Department of

Health (Respondent) reclassified the Petitioner's employment

position from t he Career Service System to the Selected Exempt

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

(2001).

Following the decision rendered in Reinshuttle v. Agency

for Health Care Admin. , 849 So. 2d 434 (Fla. 1st DCA 2003), the

Petitioner was notif ied by the Respondent's letter dated July

21, 2003, that he could file a petition challenging the

reclassification of his position. The Petitioner petitioned for

review of the reclassification. On November 18, 2003, the

Respondent forwarded the petition to the Division of

Administrative Hearings, which scheduled the hearing for

February 9, 2004. Upon unopposed motion filed by the

Petitioner, the hearing was rescheduled for March 16, 2004.

At the hearing, the Petitioner presented the testimony of

one w itness and testified on his own behalf. Petitioner's

Exhibits numbered 1, 2, and 4 were admitted into evidence. The

Respondent presented the testimony of five witnesses, and had

Exhibits numbered 1 through 4, 6 through 8, 10 through 12,

and 18 through 32 admitted into evidence.

The one - volume Transcript was filed on March 29, 2004.

Proposed recommended orders were due to be filed within ten days

from the date of the transcript filing. On April 5, 2004, the

Respondent filed an unopposed motion to exten d the time for

filing the proposed recommended orders, which was granted. Both

parties thereafter filed proposed recommended orders on

April 16, 2004.

FINDINGS OF FACT

1. Beginning on April 23, 2001, and at all times material

to this case, the Petitio ner was employed by the Hillsborough

County Health Department as a Professional Engineer III, a

position requiring state registration in accordance with

Chapter 471, Florida Statutes (2001).

2. The job announcement related to the Petitioner's

employmen t states that the position "oversees" the drinking

water program and engineering - related activities. The position

was responsible for management of "Safe Drinking Water"

permitting and compliance enforcement program entailing a

variety of duties, includin g planning, organizing, and

coordinating work assignments.

3. According to organizational charts before and after the

date of the reclassification of the position, the Professional

Engineer III position had direct supervision of four employment

positions, and indirect supervision of eight additional

positions that reported to one of the Petitioner's direct

employees.

4. The position of Professional Engineer III includes a

substantial amount of engineering review responsibilities, and

is charged with dir ect supervision of the Safe Drinking Water

Act program staff and Limited Use Drinking Water program staff.

5. The position description categorized the job

responsibilities as "regulatory," "supervising/training,"

"enforcement," "policies and procedures," "record keeping,"

"education," and "committees/other duties." Review of the

specific duties indicates that the Petitioner's supervisory

responsibilities were included within several of the categories.

6. Included within the "regulatory" category was

"[ e]nsures staff conduct field inspections of public water

systems. . . . Supervisor is responsible and accountable for

field staff."

7. Included within the "supervising/training" category

were the following duties:

· Supervises Engineers to ensure all

progr ams in the Safe Drinking Water

Program are completed according to the

agreement with DEP and the policies and

procedures of the Department of Health.

· Supervises an Environmental Supervisor II

to ensure that all programs in the Limited

Use Drinking Water Pr ogram and Private

Drinking Water Program are completed

according to the F.S., F.A.C. and county

regulations.

· Supervises staff review of engineer's

plans.

· Supervises and reviews the preparation of

non - compliance letters written by staff

regarding enforcemen t actions.

· Provide training to new Health Department

staff in all aspects of EHS at least once

a year (standardized presentation).

· Perform field inspections (documented)

with personnel on a quarterly basis to

evaluate staff performance and for Quality

Impr ovement (QI) in accordance with office

policy. Telephone regulated facilities

each quarter to determine customer

satisfaction . . . in accordance with

office policy.

· Develop training modules for specific

program areas (public drinking water

systems) and m aintain them accurate and

current. Provide those training modules

to new EH staff and twice a year to

existing EH staff.

· Assign staff to special work areas as

necessary and perform field inspections

(staff shortages, vacation/leave time, and

natural disas ter).

· Evaluate personnel's work, plan work load,

special tasks to include efficiency.

8. Included within the "enforcement" category were the

following duties:

· Reviews appropriate enforcement activities

generated by staff and assure timely

progress of for mal enforcement from

compliance to enforcement.

· Ensures the time progress of enforcement

cases by working closely with the

compliance section of the Public Drinking

Water Program in bringing non - compliant

clients into enforcement. Follow up on

violations of FAC and/or FS and ensure

compliance is achieved or enforcement

action is taken.

9. Included within the "policies and procedures" category

was the responsibility to "[r]eview daily activity reports and

corresponding paperwork each day."

10. The Petit ioner was responsible for managing the daily

workflow of the office. He planned, directed, and reviewed the

work performed by his employees.

11. The Petitioner was responsible for the evaluation of

all employees under his direct supervision, including newly

hired probationary employees.

12. The Petitioner was responsible for review of the

evaluations for employees for whom he had indirect supervisory

duties, and he also provided his own independent evaluation of

their performance.

13. The Petitioner was responsible for the discipline of

employees. At one point he had to counsel an employee who was

consistently late to arrive for work.

14. The Petitioner was also responsible for seeking

qualified applicants for position openings. He was responsib le

for initiating the employment process. He chose the panel that

interviewed applicants, designed the interview questions,

participated in interviews, and made the final recommendation as

to the person hired. He had the authority to decline to fill an

o pen position if he deemed that the applicants lacked sufficient

qualification.

15. The Petitioner claims that the majority of his time

was spent in review of permit applications and related

engineering tasks. The evidence fails to support the assertion .

16. The Petitioner's claim appears to essentially relate

to a period of time subsequent to the July 1, 2001,

reclassification of the position.

17. During the time between his initial employment and the

date of the position reclassification, the Pet itioner was

primarily a supervisory employee and had little, if any, permit

review responsibilities. The office was fully staffed with

other employees who were directly responsible for review of

permit applications and related field reviews.

18. In aut umn of 2001, after the position was

reclassified, the office began to lose employees, resulting in

an increased workload for the remaining workers. At this point,

the Petitioner began to undertake a substantial role in the

actual review of permit applicat ions in addition to his

supervisory duties. Nonetheless, the Petitioner remained

responsible for supervision of remaining employees. The

Petitioner was also responsible for filling the vacant

positions.

CONCLUSIONS OF LAW

19. The Division of Administr ative Hearings has

jurisdiction over the parties to and subject matter of this

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

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

Selected Exempt Service employment classification as follows:

Selected Exempt Service; creation,

coverage. -- The Selected Exempt 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 Care er Service System pursuant to

s. 110.205 (2) and (5) and 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, professional, or

nonmanagerial/nonpolicymaking.

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

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

employees described as follows:

Effective Ju ly 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 plann ing and

directing employees' work, and who have the

authority 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

supe rvisors, administrators, and directors.

(Emphasis supplied.)

22. 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), providi ng that "[f]indings of fact shall be based upon a

preponderance 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.

23. The Petitioner's employ ment position at the time of

reclassification, both as identified in the position description

and as actually performed, meet the above - referenced definition

of "supervisory." Accordingly, the statute authorizes the

reclassification of the position from C areer Service to Selected

Exempt.

24. His employer informed the Petitioner that the

reclassification occurred because his position was

"supervisory." It should be noted that Section 110.205(2)(r),

Florida Statutes (2001), provides that positions requirin g

licensure as an engineer pursuant to Chapter 471, Florida

Statutes, are also exempt from the Career Service System, and

that salaries and benefits for such positions are in accordance

with the rules related to Select Exempt Service.

25. The Petitioner asserts that Florida Administrative

Code Rule 60K - 1.009 (in effect at the time the reclassification

occurred, but repealed on January 1, 2002) suggests that the

Petitioner was in a "coordinator position" and therefore, was

not properly reclassified. The g reater weight of the evidence

establishes that the primary responsibility of the Petitioner at

the time the reclassification occurred was supervisory as

defined by the statute as well as by the rule.

26. The Petitioner is disputing the termination of hi s

employment in November 2002. Such issues are outside the scope

of this proceeding. Section 110.604, Florida Statutes (2003),

provides as follows:

Suspensions, dismissals, reductions in pay,

demotions, and transfers. -- Employees in the

Selected Exempt Se rvice shall serve at the

pleasure of the agency head and shall be

subject to suspension, dismissal, reduction

in pay, demotion, transfer, 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 "Professional Engineer III" position held

by Raymond Van Loon on July 1, 2001, was properly classified into

the Selected Exempt Service.

DONE AND ENTERED this 21st day of April, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Admin istrative 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 Administrative Hearings

this 21st day of April, 2004.

COPIES FURNISHED :

Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Aaron J. Hilligas, Esquire

AFSCME Council 79

3064 Highland Oaks Terrace

Tallahassee, Florida 32301

Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Boulevard

Hyde Park Plaza, Suite 350

Tampa, Florida 33606

Jerry Gaynham, Esquire

Patterson & Traynham

Post Office Box 4289

315 Beard Street

Tallahassee, Florida 32315

William E. Lar ge, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

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.