04-000873SED Patricia Fuller vs. Department Of Education Status: Closed Recommended Order on Thursday, October 7, 2004.

Summary: Budget duties were not managerial in substance to justify reclassification to Select Exempt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA FULLER, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0873SED

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provide d and on August 5, 2004, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes

(2004). The hearing location was the office of the Division of

Administrative Hearings, The DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, Florida. The hearing was held before

Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Aaron J. Hilligas, Staff Counsel

Florida Public Employees Council 79

A FSCME, AFL - CIO

3064 Highland Oaks Terrace

Tallahassee, Florida 32301 1

and

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: R. W. Evans, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

and

Margaret O'Sullivan Parker

Deputy General Counsel

Department of Education

Office of the General Counsel

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

Was Petitioner, Patricia Fuller properly reclassified from

a Career Service position to an Exempt Service position in

accordance with Section 110.205(2)(x), Flori da Statutes (2001),

by Respondent, Department of Education?

PRELIMINARY STATEMENT

On July 22, 2003, Respondent notified Petitioner of her

right to petition Respondent for review of the decision to

reclassify her employment position as Career Service to th at of

Exempt Service, on the basis that her position did not qualify

for exempt status. Petitioner was afforded 21 days from receipt

of the correspondence to file a petition with Respondent's

agency clerk.

Petitioner availed herself of the opportunity to contest

the reclassification by filing a petition with Respondent's

agency clerk seeking a formal hearing consistent with Sections

120.569 and 120.57(1), Florida Statutes. That petition was

received on August 27, 2003.

On March 15, 2004, the Divisi on of Administrative Hearings

(DOAH) received the petition requesting the formal hearing to

contest the reclassification as forwarded by Respondent. Upon

receipt of the petition and letter of transmittal, the case was

given a reference number and assigned to Barbara J. Staros,

Administrative Law Judge pursuant to Section 120.569(2)(a),

Florida Statutes (2004), in anticipation that a formal hearing

would be conducted to resolve disputed issues of material fact

between the parties. Following reassignment th e final hearing

was held before the present Administrative Law Judge.

Before the hearing Petitioner filed a Motion for Summary

Disposition or Motion in Limine to Exclude Evidence. That

motion was premised upon the argument that the Florida Public

Employ ees Relations Commission (PERC) has exclusive jurisdiction

to determine employment reclassifications under authority

created by Chapter 447, Florida Statutes, and that Respondent

had no power to reclassify Petitioner's position. Petitioner

through the mot ion urged the Administrative Law Judge to enter a

Recommended Order immediately returning Petitioner's position to

Career Service status or in the alternative, exclude the

evidence on subjects that were within the exclusive jurisdiction

of PERC. Responden t filed a response in opposition to the

motion. On June 15, 2004, Judge Staros entered an order denying

the motion.

When the hearing commenced Petitioner filed a Request for

Administrative Notice in Support of Motion for Summary

Disposition. That plea ding referred to an administrative action

styled Florida Public Employees Council 79, AFSCME v. State of

Florida , CA - 2001 - 048, a case before PERC. By this filing

Petitioner sought to lend support for her Motion for Summary

Disposition that had been previo usly ruled upon. This

subsequent filing when the hearing commenced did not set aside

the prior ruling by Judge Staros denying Petitioner's Motion for

Summary Disposition. It was concluded that by the latter filing

Petitioner sought to provide notice of t he pendency of the PERC

action. With the notice Petitioner intended to contend in her

proposed recommended order for the present case that DOAH is

preempted from considering the case given PERC's exclusive

jurisdiction on the subject concerning reclassifi cation of

Petitioner's employment.

As reflected in the hearing transcript in this case,

Petitioner's Request for Administrative Notice in Support of

Motion for Summary Disposition filed at the beginning of the

hearing was treated as a notification of th e pendency of the

action before PERC. But the parties were told that Petitioner's

case against Respondent before DOAH would proceed independently

in keeping with the decision Reinshuttle v. Agency for Health

Care Administration , 849 So. 2d 434 (Fla. 1st D CA 2003), without

regard for the case before PERC.

Recognizing the nature of this dispute Respondent first

proceeded with its case - in - chief. At the beginning it presented

Amy Hammock and Patty Roberts as its witnesses. Petitioner

testified in her case - in - chief. Amy Hammock and Carol Gordon

were presented as rebuttal witnesses for Respondent.

Petitioner's Exhibits A and B were admitted. Respondent's

Exhibits C, E, and D were admitted, the latter exhibit limited

to the manual referred to as LAS/PBS. Respondent's Exhibits F,

G, and H were denied admission. They are included with the

record under proffer in relation to evidence by both parties

concerning the significance of the master contract between the

State of Florida and the Florida Public Employ ees Council 79,

American Federation of State, County and Municipal Employees

(AFSME) and the consequences which adherence to that master

contract would have on Petitioner's right to proceed in her own

right with the challenge to her job reclassification by

Respondent. As explained in the transcript pertaining to the

present case, the circumstances between the State of Florida and

AFSCME have not been considered in resolving the dispute between

Petitioner and Respondent. This choice was made given a readin g

of Reinshuttle , supra , which led to the conclusion that the

court intended that Petitioner be granted an opportunity to

contest her reclassification by Respondent outside the

experience of the master contract between the State of Florida

and AFSCME. Non etheless, the respective parties were allowed to

proffer evidence that would facilitate review of that ruling by

an appropriate court.

Official recognition is made of Florida Administrative Code

Chapter 60K - 1, predating January 2002. Official recognitio n is

also made of Chapter 2001 - 043, Laws of Florida.

The parties prepared a Pre - Hearing Statement. In that Pre -

Hearing Statement certain facts were agreed to. That agreement

is acknowledged and the undisputed facts have been found in the

Recommended O rder.

Petitioner requested that the first sentence of

Respondent's answer to Interrogatory 2 propounded to Respondent

be admitted. That request was granted.

On August 17, 2004, a hearing transcript was filed with

DOAH. Petitioner without opposition moved to extend the time

for filing proposed recommended orders until September 10, 2004.

The parties were advised that motion was granted, as

memorialized by this reference. The parties timely submitted

proposed recommended orders on the extended sched ule. Those

proposed recommended orders have been considered in preparing

the Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. Patricia Fuller was hired with the Agency (Department

of Education) on or about June 1969, and worked with the

Depart ment of Education until her dismissal on or about

January 7, 2003.

2. Until on or about July 1, 2001, the Petitioner was a

permanent Career Service employee.

3. On or about July 1, 2001, Petitioner's position was

reclassified to Exempt Service sta tus.

Answer to Interrogatory 2

4. The Petitioner's position was transferred to Exempt

Service from Career Service because (according to Respondent)

she occupied a managerial and/or confidential position under

Service First.

Additional Facts

5. Ef fective February 1, 2001, Petitioner's class title

changed from that of Program Specialist II to Senior Management

Analyst I. See Petitioner's Exhibit A. According to the

document changing the Career Service system position

description, it was executed a s evidenced by signatures of

Petitioner, her immediate supervisor, the reviewing authority,

and the agency personnel officer. In pertinent part, the

position description as of February 1, 2001, stated the

following:

RESPONSIBILITIES :

This position provide s management consulting

services to improve budget management

capabilities and operational procedures

performed by the Bureau of Budget

Management, pursuant to the requirements of

Chapters 215 and 216, Florida Statutes.

This position serves as liaison for the

budgeting entities it serves to promote the

most effective and efficient application of

budget resources, as well as for the

department with legislative and

gubernatorial staffs as directed.

DUTIES :

Serve as budget officer by preparing and

monitori ng all financial activities while

ensuring compliance with Florida Statutes as

well as State and department goals,

policies, and procedures.

Review and manage legislative bills

pertaining to a specific budget entity

within the Department of Education. T his

includes determining the effect of proposed

legislation on the department, serving as

liaison to the Legislative Affairs office as

well as other budget entitles, and

determining distribution of final

legislative actions to the appropriate

bureaus and o ffices for assistance in

operational planning and decision making.

Monitor and reconcile department salary rate

and dollar projection programs as well as

State COPES and department personnel

systems.

Monitor the appropriation, approved budget,

and allo cation of funds for the budget

entities served.

Assist in the administration of the LAS/PBS

budgeting system and the department budget

system (BUDS) which interfaces with SAMAS.

Assist in the preparation, review, and

processing of legislative and oper ating

budget amendments as well as the planning

and coordination of the annual plan of

operations for the release of

appropriations.

Assist in preparing department budgeting

policy and financial analysis.

Assist in reviewing and processing

department re organization initiatives.

Perform other related assignments as needed.

KNOWLEDGE, SKILLS, AND ABILITIES NOT LISTED

AS PART OF THE CLASSIFICATION :

Knowledge of basic management principles and

practices. Ability to effectively

communicate both verbally and in written

form. Ability to collect, evaluate, and

analyze data. Ability to prepare

correspondence, reports, understand and

apply applicable rules, regulations,

policies and procedures. Ability to utilize

problem - solving techniques, work

independen tly, plan, organize, and

coordinate work assignments. Ability to

maintain effective working relationships

with others.

6. In anticipation of the "Service First Initiative" which

was intended to reclassify certain positions that were

managerial, carr ied supervisory responsibilities, or were

confidential in nature to Exempt Service status, Petitioner's

Class Code 2224, Senior Management Analyst I, was to be included

in the Initiative. This inclusion was announced in a memorandum

dated May 18, 2001. S ection 447.203(5), Florida Statutes

(2001), refers to "confidential employees" who act to assist or

aid "managerial employees" whose responsibilities are defined at

Section 447.203(4), Florida Statutes (2001). "Supervisory

responsibilities" in relation to "supervisory employees" were

recognized effective July 1, 2001, under Section 110.205(2)(x),

Florida Statutes (2001). All three categories of employees

described referred to classes of employees who held positions

that would be exempt from Career Service pursuant to

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

7. The nature of Petitioner's duties and responsibilities

in her position as Senior Management Analyst I, during times

relevant to this inquiry, are further explained in a Performance

Apprais al for Select Exempt Service pertaining to her position

as Senior Management Analyst I. The Select Exempt Service for

Professional Employee Performance Appraisal was effective

July 31, 2001. The appraisal was signed by Petitioner on

January 1, 2002. On that date it was also signed by the

appraiser, and the reviewer. See Respondent's Exhibit C. The

critical elements in the appraisal process are described as

follows:

Problem Analysis/Decision Making - Analyzes

problems comprehensively; makes timely,

p ractical decisions.

Planning - Bases plans on department mission

and goals and a thorough analysis of

relevant facts; justifies costs and

benefits; sets realistic goals and

schedules.

Organizing - Arranges work for the most

efficient handling and elimina tion of

unnecessary activities; operates

efficiently.

Work Products - Produces reports,

correspondence, and other work products

which meet the intended objectives, are

produced in a timely manner, demonstrate

professional competency, and reflect

acceptable quality.

Technical Skills - Has knowledge of methods,

techniques and skills required in own and/or

related functions; applies specific methods,

procedures, and techniques in functional

area.

Conceptual Skills - Conceptualizes the

organization's relations hip with other

entities; understands organizational sub -

unit relationships and dependencies; acts

accordingly.

Presentations - Develops clear, well -

organized and logical presentations; reduces

complex issues to simple terms; is sensitive

to audience level s.

Self - Direction - Is personally well -

organized; uses time effectively; acts

independently.

Self - Motivation - Is motivated to succeed;

stretches personal resources; building on

strengths and works on deficiencies.

Human Relations Skills - Communicates

clearly and listens effectively; keeps

others informed; deals effectively with

conflict.

Relationships - Develops and maintains

effective working relationships with other

departmental managers, state managers,

legislature, media, service recipients, and

the public.

* * *

RESULTS EXPECTED AND MEASUREMENT CRITERIA:

Results Expected are specific statements of

the expectations or requirements established

by management of the position. Measurement

Criteria statements reflecting the basis for

appraising the specific results expected.

1.R: Monitor the appropriation, approved

budget, and allocation of funds.

1.M: Are allotments in line with

appropriation?

2.R: Monitor and reconcile salary rate and

dollar projection reports and provide to

staf f as needed:

2.M: Are positions funded properly?

Are rate responses provided timely?

3.R: Prepare and review entries into LAS/PBS

budgeting system.

3.M: Were LBR & LRPP entries completed

accurately?

4.R: Prepare, review, and process

legisla tive budget amendments.

4.M: Have amendments been completed and

submitted accurately?

5.R: Provide customer assistance as well as

assist co - workers during times of

excessive workload and special projects.

5.M: Have customers been given timely

assistance?

Have co - workers been given timely

assistance?

8. During the relevant time period, Amy Hammock was

Petitioner's immediate supervisor in the employing agency.

Ms. Hammock's position was that of Senior Education Finance

Manager. Fro m that vantage point she was familiar with

Petitioner's job duties and responsibilities and the integration

of those functions within the overall organization. Prior to

becoming the Senior Education Finance Manager, Ms. Hammock had

performed the duties of a budget officer, which were similar in

nature to the duties incumbent upon Petitioner as budget

officer. Petitioner served as a budget officer at all times

relevant to this inquiry.

9. As Ms. Hammock describes, Petitioner's duties as a

budget officer remained the same with the advent of

reclassification from Career Service to Exempt Service. This is

borne out in the timing of events, as previously described, in

which Petitioner's Career Service System Position Description as

Senior Management Analyst I, became effective February 1, 2001,

and was still in place on July 1, 2001, when she was declared an

Exempt Service employee by reclassification.

10. Petitioner had duties involving the preparation and

administration of Respondent's budget in calendar year 2001 and

Petitioner's participation in that process was roughly divided

into two functions. The first function related to the

legislative budget. The second function related to the

operating budget for her agency.

11. The proposed legislative bu dget was presented to the

Governor's Office and the House and Senate of the Florida

Legislature. The planning of the legislative budget commenced

in July 2001, and it was to be presented to the House and Senate

by September 15, 2001. Part of those activi ties involved what

is referred to as Long - Range Program Planning (LRPP).

Petitioner and other budget officers in her agency were involved

with the preparation of LRPP. LRPP was associated with the

legislative budget request by the agency. LRPP and the

legislative budget request constituted different approaches to

presenting the figures in support of the legislative budget

pertaining to Respondent. It was intended that the two

approaches match in their outcome to assist the legislative

members to unders tand what was being supported by appropriated

funds.

12. The legislative budget examined three years. It

involved the prior year expenditures, current year estimated

expenditures based upon the Appropriations Act that was in

effect at the time, and the n an out - year which would have been

the amount sought for the upcoming budget request year.

13. The budget officers, to include Petitioner, in

relation to LRPP, had a list of activities that had been

approved and were aware of those activities that per tained to

the divisions within the agency to which they were assigned.

Petitioner's division was titled Professional Educators. In

this respect Petitioner gathered information related to the

budget on the subject of the certification of professional

educ ators, the establishment of standards for those educators,

and the disciplining of professional educators.

14. Within the 2001 - 2002 budgetary process, Petitioner and

other budget officers working from the prior budget year, the

current year, and the out - year, would input the information

gathered concerning budgetary activities into an automated

system involving the legislative budget process, which is

referred to as the Legislative Appropriations System Planning

and Budgeting Sub - system (LAS/PBS). The LA S/PBS is a mainframe

system used by all state agencies, the Governor's Office, and

the House and Senate staff intended to assist in the creation of

the budget for the State of Florida.

15. In association with the LAS/PBS data input the budget

officers, including Petitioner, in preparing information in

calendar year 2001, for the upcoming legislative session

independently determined the prior year expenditures.

Petitioner performed that task related to the Division of

Professional Educators, as well as for current year expenditures

and projections for the out - year. This process involved the use

of codes familiar to the budget officers for placing the data in

the computer database.

16. The contribution which budget officers made to the

budgetary proc ess in relation to data generated for the budget

preparation, was one in which the budget officers derived the

data to be put into the system. Their function was not merely

that of entering the data created by some other person.

Specifically, the budget officer would be responsible for making

certain that the data they contributed was an accurate

reflection of the circumstances and then they would input the

data consistent with the LAS/PBS manual. See Respondent's

Exhibit D.

17. In relation to the pr ior year information entered into

the LAS/PBS system, the budget officers would review internal

budget reports for the prior year, referred to as SAMAS reports

or Level Fours. The information that was obtained was

translated into an activity level within a division, bureau or

section and broken out for input into the LAS/PBS. The SAMAS

reports utilized had been automatically generated from the

comptrollers office and were available to the public. The

functions just explained in relation to the prior year

experience also had application to the current year under

consideration.

18. By contrast, in determining inputs for establishing

data to be used in the LAS/PBS system for the out - year, this

would take into account the circumstances within the current

y ear plus any new issues. Petitioner would run a report out of

LAS/PBS to see what the new issues were. The establishment of

the new issues was at a higher level than Petitioner was

assigned.

19. Respondent submitted the proposed budget created to

the Governor's Office and the House and Senate for further

review by September 15, 2001. The Governor's Office would then

have created its own budget recommendations by using the LAS/PBS

to be submitted to the Legislature in advance of the legislative

sessio n in accordance with deadlines established by statute.

20. Respondent's contribution to the budgetary process in

2001, was constructed upon data provided to each budget officer

within the Agency.

21. The other budget in which Petitioner as a budget

officer participated in 2001, was the operating budget. The

operating budget was established on the basis of monies

appropriated in the Appropriations Act. Activities undertaken

in accordance with the operating budget influence the

preparation of the upc oming legislative budget. The operating

budget for 2001 - 2002 commenced on July 1, 2001.

22. In the time in question, Petitioner and other budget

officers would be involved in activities pertaining to the

operating budget at the beginning of the year. In this pursuit

the budget officers consult with other people in putting that

budget together. Certain cost items would be taken into account

such as, travel expenditures, supplies, rent, and the

apportionment of rent among sections within a division bas ed

upon the number of full - time employees (FTEs).

23. In relation to the operating budget, the budget

officers were responsible for acting consistent with the funding

source in relation to activities performed by Respondent's

employees as part of the b udget process.

24. Under the terms of the operating budget in the

instance where expenditures in the current year were unusual,

the budget officers would discuss the matter with the director

of the division and other persons within the division to addre ss

the circumstances.

25. The operating budget for Respondent was established in

categories authorized by the Legislature under terms set forth

in the Appropriations Act. The budget officer could look at

allocations within the category, for example, if the travel

allocation was exceeding the original budget that had been

established, Petitioner, among other budget officers, could look

at a different allocation such as supplies and move a part of

that allocation into the travel allocation, so that the ne t

effect would be not to exceed the budget that had been

established concerning the expenditures for travel. Sometimes

the division director would be consulted before making these

adjustments in the more substantial examples. Otherwise, the

budget office r would make these adjustments that were not

especially significant in their import.

26. Petitioner in the relevant time period was authorized

to move funds through an internal budget amendment process

within the agency. That involved the movement of f unds between

object codes. Object codes make up a category. An example

would be moving funds within the travel object code to the

supply object code. Funds could be moved between sections

within the division. If one section had more funds available in

the budget for their travel object code than were needed, some

of those funds could be moved to another section that had less

budget for travel than was needed.

27. Certain areas within the overall operating budget for

Respondent would pertain solely to the Division of Professional

Educators where Petitioner acted as budget officer. The funding

source for the operating budget of the Division of Professional

Educators came from general revenue, funding for projects,

contracts, grants, and the teacher cer tification trust fund.

The latter funding source was unique to the Division of

Professional Educators.

28. Taking the teacher certification trust fund as an

example of her duties, Petitioner would have been responsible

for analyzing the revenues comin g into that trust fund as to the

pattern of distribution of revenues and whether the pattern was

consistent with projections, understanding that the pattern

would influence the legislative budget request. There was the

duty to look at expenditures from th e trust fund to determine if

those expenditures were as had been projected before the

expense. If something about these relationships of revenue

collection and expenditures did not seem appropriate, Petitioner

would bring it to her supervisor's attention or contact the

Director of the Division of Professional Educators to address

the problem.

29. Petitioner as a budget officer reviewed purchase

requisitions for the agency related to her division, to make

sure that the funding source corresponded to the purchase

requisition. If not, the item could not be paid for from an

unrelated trust fund.

30. Concerning projects, contracts, and grants,

Petitioner's supervisor would work on the projected revenues for

those functions. The budget officer in - turn wo uld provide

information on actual expenditures related to projects,

contracts, and grants. Out of this process the budget officer

would input information concerning the operating budget

pertaining to projects, contracts, and grants. Petitioner's

supervis or would establish category amounts. Petitioner would

determine the object code amount under a category and could make

adjustments during the course of the fiscal year within the

object code and could make adjustments between operating

sections within a b ureau pertaining to object codes.

31. Concerning the Career Service System Position

Description, Petitioner's Exhibit A, Ms. Hammock as supervisor

for Petitioner had additional insights to impart in relation to

responsibilities identified in the positi on description. The

consulting services referred to in the document would mean

"anybody and everybody." In particular, it was contemplated

that the budget officer work with bureau chiefs and division

directors on budget issues.

32. Some examples of c onsultation between the budget

officer and the division director, or bureau chief on budget

issues, would be if personnel actions were being processed and

the budget officer observed that the salary rate was becoming a

problem for a division, the budget of ficer would bring this to

the attention of the supervising personnel.

33. Toward the end of the fiscal year outstanding purchase

requisitions or contracts would be scrutinized by budget

officers to see if they could be concluded. To avoid asking the

Go vernor's Office to certify those items forward they would use

the SAMAS internal operating system in that endeavor and work

with persons within the division to close the items out. This

involved constant analysis.

34. Personnel reports referred to as CO PES reports were

analyzed by the budget officers each month to make sure the

funding information was correct, that grant numbers were

correct, and that retirement rates were correct, as examples of

functions performed by the budget officer.

35. In perf orming tasks involving the allocation of the

budget Petitioner had available a spreadsheet to facilitate that

process. Some of the monies that were involved were not

appropriated through the Appropriations Act during the period in

question. That was in r eference to an off - line budget.

36. As stated, the ability of the budget officer to make

decisions, took into account the views held by division

directors and bureau chiefs, as well as the supervisor to the

budget officer, including the movement of the funds within

object codes and between sections. This was accomplished by

utilizing a form to be submitted to the Comptroller's Office

where these actions would be input into the internal accounting

system. Significant problems required that the budget of ficer

consult with the next two levels of supervisors and sometimes

higher authorities would be involved within the agency. On

occasion budget amendments through the Legislature would be

necessary outside the authority of the budget officer to correct

bud get problems.

37. As Petitioner recalls her responsibilities as Senior

Management Analyst I, her supervisor would give her a sheet

pertaining to the funding of employee positions and Petitioner

would execute forms in association with the funding. In

a ddition, Petitioner monitored the financial activities within

the Division of Professional Educators.

38. Between July and September 2001, Petitioner agrees

with her former supervisor's memory of the events that

Petitioner allocated funds within the ope rating budget and

assisted with preparation of the legislative budget request.

Petitioner was provided figures to input into LRPP which came

from the Level Four information base containing expenditures for

the previous year and expenditures made during th e current year.

For the previous year Petitioner used an end - of - the - year report

in association with LRPP. For the out - year, Petitioner utilized

information pertaining to the current year and projections for

the upcoming year. The out - year projections we re based on

consultations with the section head, bureau chief, and director

to ascertain needs for the upcoming fiscal year, what activities

those persons wanted funded based upon experience with recurring

expenses.

39. Petitioner had no authority to d elete recommendations

made by section heads, bureau chiefs, and the division director,

in association with the out - year budget requests.

40. In relation to the Level Four report generated through

the Comptroller's Office, Petitioner entered certain all otments

associated with the operating budget.

41. Petitioner's familiarity with her role in the LAS/PBS

data entry process was that the system was automated as has been

previously described and she had a code that was used to access

the system. Once in the system a format was used to input

figures after compiling those figures through LRPP. Once the

information was input into the LAS/PBS Petitioner checked the

data placed. Petitioner checked the results to determine the

compatibility of the issues tha t were involved in the budget

request in association with what the division director had

submitted as projections for the out - year, as well as

information concerning the current year and the previous year.

If Petitioner needed assistance in this process h er supervisor,

Carol Gordon, upon request, would edit the data being prepared.

A printout of the corrected work would be given to the

supervisor.

42. A booklet was prepared and referred to as the

Legislative Budget Request constituted of the efforts of all

budget officers and the supervisors. That concluded

Petitioner's involvement in that preparation.

43. Concerning the allocations of funds out of the

legislative appropriations, Petitioner refers to a legislative

appropriations booklet that details the amount allotted for

certain programs and whether they were trust funds or funds from

general revenue. She would allocate the funds based upon object

codes. To perform this task she used a spreadsheet.

44. Petitioner did not write the program for t he

spreadsheet and was not authorized to change that program. The

information related to object codes was obtained through the

Level Four report for June 30th. If the Petitioner encountered

an object code that was overspent during the fiscal year, she

co uld increase that object code by five percent for the future

or to the contrary could decrease an object code that was not

spent up to expectations.

45. Petitioner describes her role in monitoring financial

activities within her division as consisting of reviewing

purchase requisitions which were established by purchase cards.

She also reviewed miscellaneous invoice transactions.

Petitioner had involvement in financial matters pertaining to

personnel action forms. Petitioner was responsible for

monit oring salary projections on a monthly or sometimes yearly

basis. Petitioner maintained a roster of employees within the

division and the salary attributable to those positions, and the

salary rate for the positions.

46. Petitioner explains her role in the purchase

requisition processes as taking a purchase request executed by

various persons in the hierarchy and reviewing it for accuracy

in association with object codes and information pertaining to

the division, bureau, and section. Petitioner looked at the

requisition to make certain that it complied with applicable

rules of the Respondent and the State of Florida as to the

nature of the item to be purchased. If an item was not within

the guidelines, Petitioner would contact the section head and

let the person know that it was not allowed. Coding errors were

corrected by Petitioner. If funding was not available to make

the purchase Petitioner contacted the bureau chief and division

director to make them aware of the unavailability of funds.

Those persons who had been contacted could then select another

funding source. Petitioner was without the authority to deny a

purchase requisition that met guidelines and for which funds

were available.

47. On a monthly basis her supervisor would give

Petiti oner a spreadsheet to enter salary rate. The rate was

provided from the Governor's Appropriations Office. This was

compared to the earnings for the employees on the roster. If

rate was less than earnings, it was necessary to prepare a

budget amendment f or the Governor's Office requesting additional

salary. That function was performed by Ms. Gordon, Petitioner's

supervisor.

48. Petitioner explains that when personnel action forms

were presented to her, she would enter the funding source

information. She would look to see if it was a salary in

association with a promotion or the hiring of a new employee.

The salary information was obtained from what is referred as

PAF 12. The division director, bureau chief, or section head

recommended the salary a mount.

49. Petitioner describes her role in relation to the

payment of rent and insurance. The payment of rent was on the

basis of FTE and square footage to be assigned to each FTE. In

association with the funding source for paying the rent, this

cal culation was made by using a formula in place and in response

to an invoice requesting the payment of the rent.

50. During the time in question budget officers, to

include Petitioner, did not supervise or manage other employees

within the agency. As a budget officer Petitioner did not serve

any role in labor relations.

51. In her time with the Agency Petitioner did not

participate in collective bargaining negotiations. She had not

access to sensitive employee information such as drug test

results, examination results, or medical information. She did

not provide direct assistance to anyone that was engaged in

collective bargaining negotiations. She was never involved in

the investigation of labor - related complaints by employees. She

never made an y determination on how a grievance or employee

complaint should be resolved.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in

accordance with Sections 120.569 and 120.57(1), Flori da Statutes

(2004).

53. This case preceded to hearing based upon the holding

in Reinshuttle v. Agency for Health Care Administration ,

849 So. 2d 439 (Fla. 1st DCA 2003). The purpose was to

factually determine whether Petitioner's position as Senior

Ma nagement Analyst I was properly reclassified from Career

Service to Exempt Service consistent with the expectations set

forth in Section 110.205(2)(x), Florida Statutes (2001).

54. Because Respondent sought to reclassify the employment

position from Caree r Service to Exempt Service, it bears the

burden or proof by a preponderance of evidence that the

reclassification met statutory expectations. See Florida

Department of Transportation v. J.W.C. , 396 So. 2d 778

(Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977); and

Young v. Department of Community Affairs , 625 So. 2d 831

(Fla. 1993).

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

states:

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 action,

including all employees serving as

supervisors, administrators, and direc tors.

Excluded are employees also designated as

special risk or special risk administrative

support 1 and attorneys who serve as

administrative law judges pursuant to s.

120.65 or for hearings conducted pursuant to

s. 120.57(1)(a). Additionally, registere d

nurses licensed under chapter 464, dentists

licensed under chapter 466, psychologists

licensed under chapter 490 or chapter 491,

nutritionists or dieticians licensed under

part X of chapter 468, pharmacists licensed

under chapter 465, psychological speci alists

licensed under chapter 491, physical

therapists licensed under chapter 486, and

speech therapists licensed under part I of

chapter 468 are excluded, unless otherwise

collectively bargained.

1 / Note. -- The word "and" was inserted by

the editors.

56. Section 447.203(4) and (5), Florida Statutes (2001)

states:

(4) "Managerial employees" are those

employees who:

(a) Perform jobs that are not of a routine,

clerical, or ministerial nature and require

the exercise of independent judgment in the

performance of such jobs and to whom one or

more of the following applies:

1. They formulate or assist in formulating

policies which are applicable to bargaining

unit employees.

2. They may reasonably be required on

behalf of the employer to assist in th e

preparation for the conduct of collective

bargaining negotiations.

3. They have a role in the administration

of agreements resulting from collective

bargaining negotiations.

4. They have a significant role in

personnel administration.

5. They have a significant role in employee

relations.

6. They are included in the definition of

administrative personnel contained in s.

228.041(10.

7. They have a significant role in the

preparation or administration of budgets for

any public agency or institution or

subdivision thereof.

(b) Serve as police chiefs, fire chiefs, or

directors of public safety of any police,

fire, or public safety department. Other

police officers, as defined in s. 943.10(1),

and firefighters, as defined in s.

633.30(1), may be det ermined by the

commission to be managerial employees of

such departments. In making such

determinations, the commission shall

consider, in addition to the criteria

established in paragraph (a), the

paramilitary organizational structure of the

department i nvolved.

However, in determining whether an

individual is a managerial employee pursuant

to either paragraph (a) or paragraph (b),

above, the commission may consider historic

relationships of the employee to the public

employer and to coemployees.

(5) "Confidential employees" are persons

who act in a confidential capacity to assist

or aid managerial employees as defined in

subsection (4).

57. The facts do not reveal that during the relevant time

frame Petitioner served as a "supervisory employee" within the

definition set forth in Section 110.205(2)(x), Florida Statutes

(2001).

58. The facts do not reveal that in the relevant time

frame Petitioner acted as a "confidential employee" as defined

in Section 447.203(5), Florida Statutes (2001).

59. Based upon the facts, the only criterion related to

"managerial employees" that arguably could pertain to Petitioner

in the relevant time frame would be Section 447.203(4)(a) 7,

Florida Statutes (2001) related to budget matters. All other

criteria that m ight establish Petitioner's role as "managerial

employee" set forth in Section 447.203(4), Florida Statutes

(2001), do not pertain.

60. Concerning the question of whether the role which

Petitioner performed in relation to her duties as Senior

Management Analyst I, further described as a budget officer, was

significant in either the preparation or administration of

budgets for Respondent, the terms set forth in that criterion

are given their ordinary meaning, absent further definition in

the statute. See Southeastern Fisheries Assoc. v. Dept. of

Natural Resources , 453 So. 2d 1351 (Fla. 1984). The facts found

establish that Petitioner had a role in the preparation and

administration of budgets associated with Respondent, a public

agency but was it a signi ficant role? The facts that describe

the duties must also be considered to determine if the duties

were routine, clerical, or ministerial in nature and required

the exercise of independent judgment in the performance of those

duties. Although the duties in the job were more than clerical

or ministerial in nature, there were routines carried out to

meet the obligations. A certain level of independence was

allowed, but never outside the control of her supervisors and

other managers with Respondent and the design of the budgetary

process concerning its format. Petitioner was in a lower

echelon within an apparatus used to establish and administer the

budgets. Petitioner's placement within the Agency concerning

the preparation and administration of budgets h ad limited

influence and effect on the outcome, not enough to describe her

role as significant. For that reason she does not meet the

definition of "managerial employee" to justify her

reclassification from Career Service to Exempt Service.

61. Concernin g Petitioner's assertion that the Respondent

failed to comply with Florida Administrative Code

Rule 60K - 1.0081(3), in effect at the time of reclassification,

wherein it is stated: "Any classification action to be taken by

an employing agency shall be ini tiated by preparation of a

current position description," that claim has not been

established. Well in advance of the effective date of July 1,

2001, Respondent established a current position description for

the position of Senior Management Analyst I, wh ich was duly -

executed by Petitioner and other appropriate parties.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law

reached it is,

RECOMMENDED that a final order be entered finding that

Petitioner's position of Senior Management An alyst I, is that of

a Career Service employee, setting aside the classification as

Exempt Service, and reinstating Petitioner as a person entitled

to rights pertaining to Career Service employees as of the time

of her improper reclassification.

DONE AND ENTERED this 7th day of October, 2004, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 S UNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of October, 2004.

ENDNOTE

1 / Counsel has since filed a notice of withdrawal as attorney.

COPIES FURNISHED :

Margaret O'Sullivan Parker

Deputy General Counsel

Department of Education

Office of the General Counsel

Turlington Building 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

R. W. Evans, Esquire

Allen, North & Blue, P.A.

1669 Mahan Center Boule vard

Tallahassee, Florida 32308

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building 1244

325 West Gaines S treet

Tallahassee, Florida 32399 - 0400

Honorable Jim Winn

Commissioner of Education

Department of Education

Turlington Building 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.