03-004665SED Mavis R. Georgalis vs. Department Of Transportation Status: Closed Recommended Order on Friday, July 2, 2004.

Summary: Petitioner`s reclassification from career service to selected exempt service did not comport with requirements of Section 110.205(2)(x), Florida Statutes. Recommend that Petitioner`s position be returned to career service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAVIS R. GEORGALIS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4665SED

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Administra tive Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a final hearing in this case

on April 15, 2004, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner: M. Stephen Turner, Esqu ire

Martin A. Fitzpatrick, Esquire

Broad and Cassel, P.A.

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in the case is whether Petitioner’s

re classification and transfer from career service to the

selected exempt service pursuant to Section 110.205(2)(x),

Florida Statutes (2001), was valid and lawful. All citations

are to Florida Statutes (2001) unless otherwise stated.

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Transportation

(Respondent) sought to reclassify the position occupied by

Marvis R. Georgalis (Petitioner) from the career service system

to the selected exempt service pursuant to Section 110.205(2(x),

Florida Statutes. Petitioner did not consent to the position

reclassification.

Petitioner was notified by Respondent's letter dated

July 21, 2003, that she could file a petition challenging the

reclassification of her position. Petitioner timely petitioned

for review of t he reclassification. Respondent forwarded the

petition to DOAH where the matter was scheduled and final

hearing conducted.

At the final hearing, Petitioner testified on her own

behalf and presented testimony of one additional witness.

Petitioner also s ubmitted five exhibits, which were accepted

into evidence. Respondent presented the testimony of one

witness and submitted 17 exhibits, which were admitted into

evidence.

A Transcript of the final hearing was filed on May 17,

2004. The parties request ed and were granted leave to file

proposed recommended orders 30 days after the filing of the

transcript. Both parties filed Proposed Recommended Orders,

which have been reviewed and addressed to the extent possible in

this Recommended Order.

FINDINGS OF FACT

1. Prior to July 1, 2001, Petitioner was a career service

employee of Respondent, for whom she had worked since 1988. On

that date, Petitioner was involuntarily reclassified as a

selected exempt employee of Respondent.

2. Both before and after her reclassification,

Petitioner’s job required her to act as a liaison and contract

administrator for technical consulting contracts relating to

Respondent’s information technology systems.

3. Respondent contends that it reclassified Ms. Georgalis

to s elected exempt service in July 2001 as a result of

amendments to Section 110.205(2)(x), Florida Statues.

Consequently, the Section then read, in pertinent part, as

follows:

(2) EXEMPT POSITIONS. -- The exempt positions

that are not covered by this part inc lude

the following:

* * *

(x) 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

authority to hire, transfer, suspend, lay

off, recall, promote, discharge, assign,

reward, or discipline subordinate employees

or effectively recommend such ac tion,

including all employees serving as

supervisors, administrators, and directors.

4. Respondent reclassified all persons who were "Level VI

managers and Level 5 supervisors" to select exempt service as a

result of the content of Section 110.205(2)(x ), Florida

Statutes. Respondent did not confirm that the responsibilities

and duties of the position occupied by Petitioner necessitated

reclassification to select exempt employee status.

5. Petitioner’s job duties were substantively different

from oth er persons within the DP Level VI occupational group. 1

Petitioner did not primarily oversee the work of Respondent's

employees as required by the career service exemption.

Moreover, she did not even oversee the work of non - governmental

supplemental or au gment persons who were providing services that

could otherwise be provided by departmental employees, assuming

such oversight is relevant to the statutory exemption.

Petitioner's role was primarily that of liaison and coordinator

between Respondent's mana gement and end users of Respondent’s

planned technology services, including Respondent's employees

who would use the technology that was being developed, as well

as construction companies and engineers outside Respondent's

department who would ultimately u se such technology in working

on department's construction projects in the future. Another

part of her duties was the administration of contracts between

the Department and outside contractors, and in doing so she

dealt with independent subcontractor tech nical consultants who

had subcontracts with those outside contractors. These

technical subcontractor consultants were not augment employees,

and Petitioner was not knowledgeable enough to supervise them on

a technical basis. In Petitioner's words, "They spoke an

entirely different language." She presented them with broad

goals formulated by higher management and served as the conduit

to inform them as to whether their work product was acceptable

to Respondent and other end users.

6. Petitioner’s job d escription, both before and after her

transfer, confirmed that her position was a “senior level career

service data processing position.” She was not required to

spend the majority of her time “communicating with, motivating,

training, and evaluating empl oyees , and planning and directing

employees ’ work.” Petitioner was only expected to spend

approximately 10 percent of her time overseeing the work of the

two state employees working in her area. As established by her

testimony, Petitioner never spent mor e than 3 percent of her

time supervising those state employees. Furthermore, the two

state employees assigned to specialized technologies were

supervised by another employee after the Summer of 2001.

7. At hearing, Respondent's only witness, suggested that

Petitioner spent 60 percent of her time supervising “employees,”

but he did not know what percentage of that time was spent

overseeing the work of career service employees. Testimony of

Respondent's witness, Nelson Hill, in this regard is not

credite d in view of his admission that he was not housed in the

Rhynne Building in 2001, where Petitioner was located, and thus

had no first - hand knowledge of the day - to - day activities of

Petitioner or the other persons working at that building.

8. In any even t, a majority of the persons which Hill

contends were “supervised” by Petitioner (six out of eight) were

not employees of Respondent, but were rather independent

subcontractors whose services Respondent retained through

contracts with outside third parties . These technical

consultants were subcontractors under state approved contracts.

They were not “hired” by Respondent. Further, they were not

paid by the State, but were rather compensated pursuant to their

agreement with the third party state contracto r. They were not

provided with any insurance, pension, unemployment or worker’s

compensation benefits, but were instead treated as true

independent contractors; and, most importantly, they were not

protected by career service protections, as would have be en

required if they were indeed state employees.

9. In sum, Respondent's position, as expounded by Hill at

the final hearing, is that the application of the exemption

provided in Section 110.205(2)(x), Florida Statutes, may be

justifiably applied to Pet itioner due to Petitioner's alleged

oversight of the independent subcontractors even though they

were not “employees” of Respondent. 2

10. The evidence does not support a conclusion that

Petitioner spent a majority of her time “supervising” anyone.

Peti tioner’s position description confirms that her contract

administration activities consumed no more than 35 percent of

her time. By that description, Petitioner was required to

provide “daily direction of consultant activities” and “manage,

direct, and su pervise technical and administrative staff." In

actuality, Petitioner spent less than 25 percent of her time in

such activities.

11. Petitioner spent the vast majority of her time

gathering and transmitting information regarding technological

and budg etary needs and facilitating the flow of information

from the end users (i.e., Respondent's employees or outside

construction contractors and engineers who would use the

proposed technology) to Respondent management and back again.

Any oversight provided by Petitioner to the technical

consultants was exactly the same as that provided to other

third - party companies with which Respondent had contracts.

These outside companies and technical consultants were engaged

by Respondent because they had the skill to achieve the goals

that were presented to them within the budget that was

established by Respondent. Petitioner's interaction with these

persons was not “supervision” of a state employee, but rather

“contract administration.”

12. Petitioner’s position descriptions specifically

confirm that she was not a “managerial” or “confidential”

employee as that term is defined in Section 447.203(4) and (5),

Florida Statutes.

13. Accordingly, based on the duties and responsibilities

contained in Petitioner’s posit ion description and the actual

duties she performed, there is no basis for concluding that

Petitioner was subject to exemption from career service as

concluded by Respondent in July 2001.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings ha s

jurisdiction over the parties and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2003). 3

15. As a preliminary matter, it is noted that any decision

to reclassify Petitioner and transfer her out of career service,

if valid and lawful, co uld only be applied from the date that

such decision is final and is no longer subject to appeal. Fla.

League of Cities v. Admin. Comm’n. , 586 So. 2d 397, 413 (Fla.

1st DCA 1991)(“Until proceedings are had satisfying Section

120.57, or an opportunity for them is clearly offered and

waived, there can be no agency action affecting the substantial

interests of a person.”) Thus, the effective date of any

reclassification and transfer, assuming it were valid and

lawful, could not be July 1, 2001, but could onl y be effective

after the conclusion of all proceedings on her reclassification,

including any appeal.

16. Unless exempted, all state employees are deemed to be

career service employees. See § 110.205(1)(“the career service

to which this part applies in cludes all positions not

specifically exempted by this 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 i n 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 hav e 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

supervisors, administrators, and directors.

(Emph asis supplied.)

17. Respondent has the burden of establishing by a

preponderance of the evidence that the reclassification of

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 Semone v. Department of Transportation ,

DOAH Case No. 03 - 4715SED (Recommended Order) (¶ 17); Conley v.

Depar tment of Children and Family Services , DOAH Case No. 03 -

4216SED (Recommended Order) (¶ 14).

18. Additionally, inasmuch as Respondent is asserting that

the exemption created by Section 110.205(2)(x) applies to

Petitioner and should thus deprive her of her constitutionally

created property interest in a career service position, the

exemption must be strictly construed, and any doubt with respect

to the applicability of the exemption must be resolved in favor

of Petitioner and against Respondent. Hebu rn v. Dep’t. of

Children & Families , 772 So. 2d 561, 563 (Fla. 1st DCA 2000),

rev. denied , 790 So. 2d 1104 (exemption must be strictly

construed against the person claiming the exemption). In this

case, Respondent has not carried its burden.

19. The su ggestion of Respondent's witness that the

exemption should apply if a state employee is assigned to work

with anyone retained or commissioned by Respondent to perform

services for Respondent, however menial the task, simply

misconstrues the statutory exemp tion: the relevant issue for

the purposes of the exemption is whether such persons are

department “employees,” not whether a department has contracted

or engaged their services as independent technical consultants.

Such contract administration is not rel evant to the issue of

whether Petitioner could properly be classified as a selected

exempt employee.

20. Respondent was, and is, required to maintain a current

job description for every position. See Fla. Admin. Code R.

60K - 1.005, (repealed 1 - 1 - 02) and Fla. Admin. Code R. 60L - 31.003.

Respondent is also required to certify that each such position

description is accurate and reflects the responsibilities

assigned to the position. Id. Accordingly, Respondent is thus

precluded from taking a position not supported by the content of

Petitioner’s position description.

21. Petitioner's employment position, both as identified

in the position description, and as actually performed, does not

meet the definition of "supervisory," “managerial” or

“confidential” as described above. Accordingly, the

reclassification of the position from career service to selected

exempt was not clearly authorized by the statute. The decision

to reclassify Petitioner should be reversed and her status as a

career service employee restored.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Department of Transportation should enter a final order

finding that the position held by Petitioner Mavis R. Georgalis

on July 1, 2001, was not properly classif ied into the selected

exempt service. Petitioner was, and should continue to be,

classified as a career service employee.

DONE AND ENTERED this 2nd day of July, 2004, in

Tallahassee, Leon County, Florida.

S

DON W. DAV IS

Administrative 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

Divisio n of Administrative Hearings

this 2nd day of July, 2004.

ENDNOTES

1/ The fact that Respondent may have called Petitioner the

“manager” of a “section” or that she was a “contract

administrator” is not dispositive. It is the duties of a

particular posi tion, and not the title, which is relevant to the

issue of whether it can be classified as selected exempt

service.

2/ Mr. Hill’s admission that these independent subcontractor

technical consultants were not “employees” of the Department

should be suff icient to eliminate any question regarding whether

the exemption at issue should apply to Ms. Georgalis. See Keith

v. News & Sun Sentinel Company , 667 So. 2d 167, 171 (Fla. 1995)

(Court should honor the position of the parties unless other

facts belie tha t position). Moreover, the technical consultants

in question would not satisfy the common law definition of

employee as outlined in Restatement of Agency, Second , Section

220 in any event. Among other factors, Ms. Georgalis did not

control the details of the work performed by the technical

consultants, they were engaged specifically for their computer

knowledge (which is a skill usually possessed by a specialist

who acts without direct supervision), they were not paid by the

Department but were instead co mpensated by a third party

contractor of the Department, and their work pertained to

matters which were generally outside the normal business of the

Department.

3/ Petitioner has raised a constitutional challenge to her

involuntary reclassification fro m career service to selected

exempt service. Those issues are appropriately reserved for

resolution by the Circuit Court, in a currently pending action,

or by the Appellate Court, on appeal from the final order in

this case.

COPIES FURNISHED :

Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

M. Ste phen Turner, Esquire

Martin A. Fitzpatrick, Esquire

Broad & Cassel, P.A.

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, MS 58

605 Suwa nnee Street

Tallahassee, Florida 32399 - 0450

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.