04-000875SED Candace C. Mcmahon vs. Department Of Elder Affairs Status: Closed Recommended Order on Friday, September 17, 2004.

Summary: Petitioner`s position meets the definition of "supervisory employee" as contemplated by Section 110.205(20(x), Florida Statutes. Petitioner`s position was properly reclassified from career service to selected exempt.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CANDACE D. MCMAHON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0875SED

)

DEPARTMENT OF ELDER AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 9, 2004, in Tallahassee, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Aaron. J. Hilligas, Esquire

AFSCME Council 79

3064 Highland Oaks Terrace

Tallahassee, Florida 32301

For Respondent: Susan E. Avellone, Esquire

Department of Elder Affairs

4040 Esplanade Way

Tallahassee, Florida 32399 - 7000

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Ta llahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in the case is whether Petitioner’s employment

position was properly reclassified from career service to the

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

Florida Statutes (2001) . All citations are to Florida Statutes

(2001) unless otherwise stated.

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Elder Affairs

(Department) reclassified Petitioner’s employment position from

the Career Service System to the Selected Exem pt System pursuant

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

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 the reclassification. The Department forwarded

the petition to the Division of Administrative Hearings on or

about March 15, 2004. A formal hearing was scheduled for

May 27, 2004. The Department filed an unopposed motion for

continuance which was grante d. The hearing was rescheduled for

July 9, 2004.

The parties filed a Joint Pre - Hearing Statement in which

the parties agreed that Petitioner’s position did not satisfy

the definitions of managerial or confidential employee for

purposes of Section 110.205( 2)(x), Florida Statutes.

Accordingly, the remaining issue is whether Petitioner was a

supervisory employee as the term is defined in Section

110.205(2)(x), Florida Statutes.

In the Pre - Hearing Stipulation, the parties requested

Official Recognition of Sec tions 110.205 and 110.206, Florida

Statutes. This request was granted.

At hearing, Petitioner testified on her own behalf.

Petitioner’s Exhibits numbered 1 and 2 were admitted into

evidence. Respondent presented the testimony of Thomas Reimers.

Respond ent’s Exhibits numbered 1 through 5 were admitted into

evidence. A one - volume Transcript of the final hearing was

filed on July 26, 2004. The parties requested and were granted

leave to file proposed recommended orders 21 days after the

filing of the tra nscript. Both parties timely filed Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed with the Department beginning

in 1998 as a Grant Specialist. In April 2000, she applied for

and was promoted into a newly created position of Operations

Management Consultant (OMC) Manager in the Serving Health

Insurance Needs of Elders (SHINE) program. The SHINE program is

primarily a statewide health insurance counseling program

designed to serve Florida’s elders.

2. At the time of her promotion, Petitioner’s new position

was classified under the Career Service System. The position

was reclassified from Career Service to Selected Exempt Service

effective July 1, 2001.

3. Petitioner’s position description describes the duties

and responsibilities of the position as follows:

The Operations and Management Consultant

Manager assists with supervision and

coordination of day - to - day volunteer

management and program manageme nt functions

for the SHINE (Serving Health Insurance

Needs of Elders) Program. Works [sic] is

performed under the supervision of the

program coordinator (Senior Management

Analyst Supervisor) and in support of the

department’s mission, vision and values.

4. The position description also provides percentages of

time regarding activities engaged in pertaining to these duties

and responsibilities:

30% Manages volunteer support activities

for the SHINE Program. Provides

orientation, training and ongoi ng technical

assistance to program partners and volunteer

leadership; develops resource guides and

other tools to assist with programmatic and

operational issues; conducts meetings,

workshops and seminars to build leadership

skills; maintains regular commu nication with

program liaisons and volunteer leadership;

disseminates correspondence on key

programmatic issues; helps resolve

operational challenges; and works to ensure

outcomes measures are achieved.

20% Supervises volunteer service functions

for the program. Develops protocols and

tracking systems for service and support

provided to volunteers and staff.

Coordinates collection of information for

the volunteer database and maintenance of

volunteer files. Assists with surveys and

evaluations. Superv ises activities of

program staff.

10% Assists with development, preparation,

monitoring and oversight of contracts of

agreement with providers and program

partners.

10% Performs other duties as assigned by

SHINE Program Coordinator.

10% Ensures the a spects of SHINE Program of

Information& Referral (I & R), education and

outreach are coordinated with the overall

agency responsibility in those areas.

Supervises staff activities as they relate

to these functions.

5% Takes the lead for the preparation for

the SHINE grant reapplication and other

related new grant applications and

opportunities.

5% Assists with budget development.

5% Ensures that required grant reports and

narratives are submitted to funder on time

and complete.

5% Represents Depart ment of Elder Affairs

and SHINE at community education events for

the public and the aging network. May make

presentations at workshops, community forums

and seminars as assigned. Serves as an

advocate for elders.

5. Further, the position description lists six positions

which are described as “subordinate positions.” This is

consistent with the organizational chart of the Division of Self

Care and Community Volunteer Initiatives which also reflects six

positions directly under her position. However, during the time

Petitioner held the position of OMC Manager, there were some

reorganizations that resulted in two of the positions being

shifted, sometimes being under the authority of Petitioner and

sometimes being under the authority of others. In any e vent, at

all times material hereto Petitioner was the supervisor of five

to seven persons.

6. Petitioner does not dispute that she performed some

supervisory duties. At hearing, she acknowledged that she had

supervisory duties, but asserts that she only spent a minimal

amount of time in the performance of supervisory activities.

7. Each morning, Petitioner would hold a staff briefing

which lasted 15 to 30 minutes with the individuals she

supervised. Petitioner described these group staff meetings as

an update session to discuss “what’s hot, what are you working

on, do you need help, do you need information . . . and more

targeted towards continuing to instill a teamwork type of effort

in the attitude of the staff.”

8. In addition to her duties regardin g staff, Petitioner

was also responsible for the oversight of contracts with program

providers and with volunteers. These providers and volunteers

were not employees of the Department. Petitioner estimates that

she spent between 50 and 75 percent of each day on contract

management issues. However, in terms of her responsibility to

develop, prepare, monitor, and oversee those contracts, she

would utilize her staff in order to carry out many of those

duties.

9. Tom Reimers has worked for the Department since 1995.

He is currently the Director of the Division of Volunteer and

Community Services. Prior to that, he served as Director of the

SHINE Program. During part of that time, Mr. Reimers was

Petitioner’s direct supervisor.

10. According to Mr. Reim ers, Petitioner was responsible

for the work product of the employees she supervised, in

reviewing their work product, in informing those employees when

their work product was inadequate, and in evaluating employees

including signing their “Review and Perf ormance Planning” forms.

Her signature on those employee reviews appears in the line

designated for “supervisor’s signature.”

11. Mr. Reimers considered Petitioner to be a full - time

supervisor in that Petitioner had the authority to sign time

sheets, a pprove and consider requests for travel, provide

information to her employees about their job and about the

Department’s mission, ensure that they were carrying out the

mission, and provide guidance to her subordinate employees.

12. When Mr. Reimers rec eived communications from the

persons under Petitioner’s supervision or needed to communicate

something to them, he would generally funnel that communication

through Petitioner.

13. Moreover, Mr. Reimers was frequently out of the office

due to his job r esponsibilities. When he was out of the office,

Petitioner described herself as a “second - in - command type of

individual monitoring the program at home.”

14. Mr. Reimers conducted Petitioner’s employee

evaluations. His review of her work included he r ability to

communicate with employees, whether she was properly assigning

and overseeing work of her subordinates, and whether she was

motivating her staff. Petitioner received positive evaluations

from Mr. Reimers.

15. Petitioner interviewed applicant s for at least two

employment positions and made recommendations regarding their

employment. In both instances, those persons recommended by

Petitioner were hired.

16. Petitioner was employed by the Department until

March 31, 2002, when her position was eliminated because of loss

of grant monies which funded her position.

17. The weight of the evidence supports a conclusion that

Petitioner spent a majority of her time supervising employees as

contemplated by Section 110.205(2)(x), Florida Statutes.

CON CLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

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

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

to which this part applies includes all positions not

specifically exempted by this part . . .”).

20. Section 110.205(2)(x), Florida Statues, reads in

pertinent part, as follows:

(2) EXEMPT POSITIONS. -- The exempt positio ns

that are not covered by this part include

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

spe nd 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 dis cipline subordinate employees

or effectively recommend such action,

including all employees serving as

supervisors, administrators, and

directors. . .

21. Respondent has the burden of establishing by a

preponderance of the evidence that the reclass ification 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 34 9 (Fla. 1st

DCA 1977). Based upon the parties’ stipulation, the only issue

is whether her position was that of a supervisory employee as

defined in Section 110.205(2)(x). 1/

22. Petitioner's employment position meets the definition

of "supervisory employe e" as described above. Accordingly, the

reclassification of the position from career service to selected

exempt was authorized by the statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Department of Elder Affair s should enter a final order

finding that the position held by Petitioner Candace C. McMahon

on July 1, 2001, was properly classified into the selected exempt

service.

DONE AND ENTERED this 17th day of September, 2004, in

Tallahassee, Leon County, Flor ida.

S

BARBARA J. STAROS

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 t he Clerk of the

Division of Administrative Hearings

this 17th day of September, 2004.

ENDNOTE

1/ Petitioner raised in her Proposed Recommended Order a

constitutional issue regarding her involuntary reclassification

from career service to selected exempt service. This issue was

not raised in the Petition and will not be addressed herein.

Moreover, such issues are appropriately reserved for resolution

by a Circuit Court or by the Appellate Court, on appeal from the

final order in this case.

COPIES FUR NISHED :

Susan E. Avellone, Esquire

Department of Elder Affairs

4040 Esplande Way

Tallahassee, Florida 32399 - 7000

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Aaron J. Hilligas, Esquire

AFSCME Council 79

3064 Highland Oaks Terrace

Tallahassee, Florida 32301

Tom G. Thomas

General Counsel

Department of Elder Affairs

4040 Esplanade Way

Tallahassee, Florida 32399 - 7000

Luis Morse, Acting Secretary

Department of Elder Affairs

4040 Esplanade Way S treet

Tallahassee, Florida 32399 - 7000

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 th e agency that

will issue the final order in this case.