04-003232SED Judith Page Jolly vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, April 13, 2007.

Summary: Petitioner should be reclassified as a Career Service Employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH PAGE JOLLY , )

)

Petitioner , )

)

vs. ) Case No. 04 - 3232SED

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

SUMMARY RECOMM ENDED ORDER

This case came on for consideration pursuant to a Motion

For Summary Disposition filed by Petitioner. After stipulation

of the parties that summary disposition was appropriate and the

record complete the Petitioner's Motion was granted.

APPEARANCES

For Petitioner: Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

P.O. Box 4289

Tallahassee, Florida 32315

For Respondent: Richard W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner's

position was properly reclassified from Career Serv ice status to

Selected Exempt status.

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Children and Family

Services (Department or Respondent) reclassified Petitioner’s

employment position from Career Service to the Select Exempt

Service under the “Service First” initiative codified in Section

110.205(2)(x), Florida Statutes. At the time of the

reclassification, Petitioner received no clear point of entry to

an administrative hearing. Nevertheless, on May 9, 2002,

Petitioner filed a Petition for Section 120.569, 120.57(1)

Hearing with the Department. The Petition alleged that the

Department improperly reclassified Petitioner’s position upon

the supposition that it was exempt from Career Service status

pursuant to Section 110.205(2)(x), Florid a Statutes, as

performing duties either “managerial” or “confidential” within

the meaning of Section 447.203(4) or (5), Florida Statutes, or

“supervisory” within the meaning of Section 110.205(2)(x),

Florida Statutes. The Petition for hearing was denied b y the

Department and Petitioner appealed that denial. This case

became one of five cases consolidated in the First District

Court of Appeal , which led to the opinion in Reinshuttle v.

Agency for Healthcare Administration , 849 So. 2d 434 (Fla. 1st

DCA 2003 ), that held Petitioner was entitled to an

administrative hearing on the reclassification of her position.

Thereafter, on September 15, 2004, the Petition for hearing was

forwarded to the Division of Administrative Hearings and the

case set for hearing on November 29 - 30, 2004.

On November 17, 2004, th e parties filed a Joint Motion to

Continue a nd to Consolidate For Joint Hearing. The Motion

requested consolidation of this case with Lori Cooper v.

Department of Children and Family Services , DOAH Case Number

3231SED. The Cooper case had generally followed the same legal

process as this case and involved the same issues. On

November 22, 2004, a continuance was granted and the case was

rescheduled for February 8, 2005. The cases were not

consolidated but would be combined for purposes of hearing. On

February 3, 2005, the parties filed a second Joint Motion t o

Continue due to an immediate family member's death in

Petitioner's family. The Motion also advised that the parties

were engaged in settlement negotiations. On February 4, 2005,

the Motion to Continue was granted and the cases rescheduled for

March 31, 2005. On March 29, 2005, the parties filed a third

Joint Motion to Continue based on continued negotiation

regarding the details of the settleme nt regarding Petitioner's

position. Due to the settlement in principle, the case was

placed in abeyance with a status report due by May 2, 2005.

On May 2, 2005, the parties filed a Stipulation and

Agreement of the Parties stipulating that the Depar tment did not

contest the Petition. The stipulation requested the abeyance be

continued pending resolution of the issue of attorney ' s fees and

costs at issue in the First District Court of Appeal. On May 3,

2005, abeyance was continued with a status repo rt due no later

than July 2, 2005. Thereafter, status reports were filed by the

parties with the issue of attorney ' s fees and costs remaining

unresolved. On March 7, 2006, the parties requested the

abeyance be continued and advised that the issue of atto rney ' s

fees and costs had been referred for mediation before a

mediator. ( On December 29, 2006, the parties notified the

undersigned that the issue of attorney's fees and costs had been

resolved. On January 31, 2007, the undersigned held a status

confere nce to determine whether the cases should be scheduled

for hearing. Both parties agreed that the cases should be

handled by summary disposition and that the record was

complete. )

FINDINGS OF FACT

1. Prior to July 1, 2001, Petitioner, Jolly was emplo yed

in the Co m prehensive Health Planning Section of the Programs,

Regulation and Health Facilities Division of the Department of

Children and Family Services (DCFS) in a Career Service

employment position classified and titled Administrative

Assistant II C areer Service. At the time, Petitioner held

permanent Career Service status.

2. The Administrative Assistant II position was certified

by the Public Employees Relations Commission (PERC) as within

the Career Service Administrative - Clerical collectiv e bargaining

unit, represented by the Florida Public Employees Council 79,

AFSCME.

3. In her position, Petitioner performed clerical

functions. She did not supervise other employees, perform any

managerial functions, or perform any confidential duti es. She

had no role in labor relations, collective bargaining, the

adjustment of grievances filed by employees, or the imposition

of discipline upon other employees for breaches of conduct.

Similarly, Petitioner had no role in the preparation of agency

b udgets for collective bargaining, or for other purposes.

4. Sometime around June 15, 2001, Petitioner was notified

by DCFS that her position as an Administrative Assistant II

would be reclassified as a position within the Selected Exempt

Service (S ES). The reclassification was effective July 1, 2001.

No input from the Petitioner regarding the duties of her

position was sought by the Department in its decision to

reclassify Petitioner's position. Indeed, the Department

reclassified the position ba sed on the fact that Petitioner

assisted or aided managerial employees and allegedly had access

to confidential material. However, there was no evidence in the

record that Petitioner's position involved any confidential

matters.

5. Petitioner was te rminated from employment with DCFS,

without explanation, on June 28, 2002. In terminating her

employment as an Administrative Assistant II, DCFS represented

that Petitioner had no appeal rights either to PERC or under the

bargaining agreement between AFSC ME and the State of Florida

because her position had been reclassified. However, the

evidence does not demonstrate that Petitioner's position was

managerial, confidential or supervisory. Therefore,

Petitioner's position should not have been reclassified to SES

and she is entitled to her rights as a C areer S ervice employee.

CONCLUSION S OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

litigation. §§ 120.569 and 120.57(1), Fl a. Stat. ( 200 5 ; ) and

Reinshuttle v. Agency for Healthcare Administration , 849 So. 2d

434 (Fla . 1st DCA 2003).

7 . Section 110.205, Florida Statutes (2001), states:

(1) CAREER POSITIONS. — The career service

to which this part applies includes all

positions not spe cifically exempted by this

part, . . . .

(2) EXEMPT POSITIONS. — The exempt positions

that are not covered by this part include

the following:

* * * *

(x) 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, p romote,

discharge, assign, reward, or discipline

subordinate employees or effectively

recommend such action, including all

employees serving as supervisors,

administrators, and directors. Excluded are

employees also designated as special risk or

special r isk administrative support 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, registered nurses licensed

under chapter 464, dentists licensed under

chapter 466, p sychologists licensed under

chapter 490 or chapter 491, nutritionists or

dieticians licensed under part X of chapter

468, pharmacists licensed under chapter 465,

psychological specialists licensed under

chapter 491, physical therapists licensed

under chapt er 486, and speech therapists

licensed under part I of chapter 468 are

excluded, unless otherwise collectively

bargained.

8 . 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 ar e applicable to bargaining

unit employees.

2. They may reasonably be required on

behalf of the employer to assist in the

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(1 0).

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 determined 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 involved.

However, in determining whether an

individual is a managerial employee pursuant

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

a bove, the commission may consider historic

relationships of the employee to the public

employer and to co - employees.

(5) "Confidential employees" are persons

who act in a confidential capacity to assist

or aid managerial employees as defined in

subsectio n (4).

9 . Because Respondent sought to reclassify the employment

position from Career Service to Exempt Service, it bears the

burden to pro ve by a preponderance of evidence that the

reclassification met statutory requirements . 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).

10 . Clearly, P etitio ner does not meet the criteria for

reclassification of her position . The supporting affidavit of

Petitioner establishes factually that in her position with the

Respondent, as an Administrative Assistant II, Petitioner

performed no duties which were “managerial” or “confidential”

within the meaning of Section 447.203(4) or (5), Florida

Statutes, or “supervisory” within the meaning of Section

110.205(2)(x), Florida Statutes. Taken together with

Respondent’s stipulation that it does not contest the Pet ition,

these facts establish that Petitioner’s position was properly

classified as within the Career Service, and that it was

improper for Respondent to reclassify the position as within the

Select Exempt Service. Therefore, Petitioner’s position should

b e properly classified as C areer S ervice.

RECOMMENDED ORDER

Based upon the Findings of Fact and Conclusions of Law

reached it is RECOMMENDED:

That Petitioner's position of Administrative Assistant II,

is that of a Career Service employee and should no t have been

reclassified as Select Exempt Service . Petitioner is a person

entitled to rights pertaining to Career Service employees as of

the time of h er improper reclassification.

DONE AND ENTERED this 13th day of April , 2007 , in

Tallahassee, Leon Cou nty, Florida.

S

DIANE CLEAVINGER

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) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this day of , .

COPIES FURNISHED :

Herschel C. Minnis, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Roo m 204N

Tallahassee, Florida 32399 - 0700

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

Robert W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street. Suite 100

Tallah assee, Florida 32308

Robert A. Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John J. Copelan, General Counsel

Department of Children and

Family Service s

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1316 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUB MIT 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.