05-001602SED James A. Snyder vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Friday, December 2, 2005.

Summary: The evidence did not show that Petitioner was a managerial employee or was involved in confidential matters. Recommend reinstatement to Career Service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. SNYDER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1602SED

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in

the above - styled case on September 27, 2005, in Tallahassee,

Florida, before the Honorable Diane Cleavinger, Administrative

Law Judge at the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Gaynham, Esquire

Post Office Box 4289

Tallahassee, Florida 32315

Melissa Horwitz, Esquire

6840 Highland Park Terrace

Tallahassee, Florida 32301

For Respondent: Avery D. McKnight, Esquire

Alien, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Judson M. Chapman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Suite A - 432

Tallahassee, Florida 32399 - 0504

STATEMENT OF THE ISSU E

The issue in this case is whether Petitioner’s employment

position was properly reclassified from Career Service to the

Select Exempt Service (SES) on July 1, 2001, pursuant to Section

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

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Highway Safety and Motor

Vehicles (Department or Respondent) reclassified Petitioner’s

employment position from Career Service to the Select Exempt

Service under the “Service First” initiative codified in Section

11 0 205(2)(x), Florida Statutes. On July 23, 2003, the

Department advised Petitioner that he could file a petition

challenging the reclassification of his position. On May 4,

2005, Petitioner filed a petition challenging the

reclassification. The Petition was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified on his own behalf and

offered five exhibits into evidence. The Department presented

the testimony of four witnesses and offered seven exhibits into

evide nce. After the hearing, the parties filed Proposed

Recommend Orders on November 3, 2005.

FINDINGS OF FACT

1. On May 1, 2001, Petitioner was reassigned from

Accountant Supervisor I to Administrative Assistant II. At the

time, Petitioner was unde r the Career Service System and was a

probationary status employee. Petitioner’s position as an

Administrative Assistant II was a position within the PERC

certified collective bargaining unit, entitled the

Administrative and Clerical Unit, Certification N umber 542

issued on June 25, 1981. For inclusion within such a unit the

position was considered to not involve managerial or supervisory

functions.

2. In the early part of 2001, the Department’s Bureau of

Personnel Services worked with the Departmen t of Management

Services to implement the Service First initiative. As part of

Service First’s implementation, the Bureau reviewed positions to

determine whether they met the criteria set forth in Section

110.205, Florida Statutes. After its review, the Bureau

forwarded its determination regarding those positions to the

Department of Management Services (DMS) for reclassification or

exemption as appropriate.

3 . The Bureau reviewed Petitioner’s duties and consulted

with Petitioner’s immediate and ind irect supervisors regarding

the essential duties assigned to Petitioner’s position. Based

on that review, the Bureau determined that Petitioner’s position

was confidential. Although the evidence at the hearing did not

demonstrate such the Bureau determin ed that Ms. Wofford and

Petitioner had access to confidential collective bargaining

material due to their work with the Long - Range Program Plan

(LRPP).

4. On July 1, 2001, Petitioner’s position was reclassified

from Career Service to SES due to the S ervice First initiative.

Petitioner’s position was reclassified to SES because it was

determined to be a confidential position as defined in Section

110.205, Fl orida Stat ute s. The title of the position remained

the same. A new position description under SES was approved by

the Division Director, Ms. Sandy Delopez. The new SES

description was essentially the same as Petitioner’s old C areer

S ervice position description. In pertinent part, the position

description as of July 1, 2001, stated the following:

This position is authorized to work

independently assisting management in the

coordination of tasks and/or assignments,

which are complex in nature, broad in

objective with diverse functions. Duty

[ Sic ] involves the performance of

activities, which invol ve independent

planning and prioritization. Assists in

collecting, evaluating and analyzing data

and work.

Review records and reports that require

action and recommend solutions that fully

utilize technology.

Perform special assignments, research,

repor t preparation, conducting and/or

directing special projects or activities as

directed.

Responsible for performing other related

duties as required.

Petitioner remained employed under the new classification until

his termination on March 12, 2003.

5 . As an Administrative Assistant II under SES, Petitioner

worked in the Office of Planning and Business Support under the

Division of Administrative Services in the Department of Highway

Safety and Motor Vehicles. One of the Division’s major

responsibili ties was to coordinate preparation of the LRPP.

6. The Division provided administrative support functions

for the Department, including budgeting, accounting, human

resources, purchasing and contracts. Petitioner reported to

Stacy Wofford, the Bur eau Chief of Purchasing and Contracts, who

acted as his immediate supervisor. Ms. Wofford served as the

Agency Planning Officer. Petitioner’s chain of command also

included Ms. Wofford’s direct supervisor, Mallory Horne, Jr.,

Chief of Staff, and the Divi sion Director, Ms. Sandy DeLopez.

Ms. Wofford had the primary responsibility for preparing the

LRPP. The Office of Planning only had two employees,

Ms. Wofford and Petitioner.

7. The LRPP is a five - year plan prepared by Respondent

each year, pu rsuant to Section 216.013, Florida Statutes, that

lays out the agency’s goals, strategies for reaching those

goals, and the performance measures used by the agency in

evaluation of its performance. The Governor’s Office directed

the items and issues that were to be included in the LRPP. The

LR P P addresses Respondent’s plan for reductions in force, and

identifies specific positions that could be impacted by such

reductions in force. There was no substantive evidence that

this information was used in colle ctive bargaining in any

substantial way.

8. The LRPP also is used to justify the Department’s

legislative budget request. The plan provides the framework and

foundation for the Department’s legislative budget request and

addresses how the Dep artment is going to meet the Governor’s

mandate of a five percent budget and workforce reduction for

each year. As a part of the LRPP, the Department provided its

plan for reductions in force and identified specifically

positions that would be impacted. It has a substantial impact

on the preparation of the Department’s budget and legislative

consideration of that budget. However, neither Ms. Wofford, nor

Petitioner prepared or administered agency budgets.

9. Ms. Wofford had primary responsibility for coordinating

the plan’s preparation. In preparing the LRPP, Ms. Wofford had

to analyze the goals of the various Divisions in the Department

and what positions may be possible for elimination or

consolidation. Furthermore, Ms. Wofford consulted with b ureau

c hiefs in staff meetings and briefings to provide information to

the Division Director that could be used in determining where

job cuts would be made. Based on her job description,

Ms. Wofford’s position was not of a routine, clerical or

ministeria l nature and did require the application of

independent judgment, such that she constituted a managerial or

supervisory employee. However, the information used in the LRPP

was developed by and collected from the various Divisions of the

Department. In th at regard the evidence demonstrates that

Ms. Wofford ’ s true duties were of a ministerial nature and

included faithfully reporting to others the information she

obtained from others.

10. Petitioner assisted Ms. Wofford in obtaining the

information c ollected from the various Divisions and putting

that information into the correct format for easy inclusion into

the LRPP. To accomplish these tasks Petitioner utilized

Microsoft Word, Excel and Access and had significant experience

in those areas. None of the information gathered in preparing

the LRPP was exempt from disclosure under the Public Records

Act, Chapter 119, Florida Statutes. The information contained

in the LRPP was clearly important and sensitive because of its

potential impact . T he evide nce did not show that such

information was secret or confidential information. The

testimony of the Division Director that he considered everything

in his office to be confidential is insufficient to establish

such confidentiality , since clearly the Sunsh ine laws apply to

his office and much of the information he deals with is subject

to public scrutiny. Moreover, such testimony is insufficient to

establish confidentiality strictures down to Petitioner’s level

of employment.

11. At the time, the DMS conducted the collective

bargaining negotiations with unions representing State

employees. The Department did not conduct such negotiations.

However, the Department had several managers on the advisory

council that worked with DMS on collective bargaini ng with

unions. These included Ken Wilson, Sandra DeLopez, a chief from

the Highway Patrol, and sometimes one of the agency attorneys.

Neither Stacy Wofford, nor her supervisor, Mallory Horne, w as

the bargaining team. Neither Ms. Wofford, nor Petitioner

prepared, or assisted anyone in preparing, collective bargaining

proposals to be used in collective bargaining negotiations.

Moreover, neither was ever asked to do so.

12. According to Petitioner’s testimony, he preformed two

general functions in h is position as an Administrate Assistant

II: writing computer programs and performing ad hoc clerical

tasks for Ms. Wofford. Approximately 80 percent of Petitioner’s

time was spent on various computer programming tasks;

approximately 20 percent was spent in performing clerical tasks.

On the other hand, Ms. Wofford described Mr. Snyder as her

“right hand person,” and as someone who worked very close with

her.

13. The evidence showed that Petitioner’s work in

programming consisted of creating vario us programs that were

ultimately used by other administrative units to collect and

display data. After creating the programs, Petitioner would

turn the application over to the administrative unit for which

it was prepared, for its use. He developed progr ams, to analyze

how quickly property was entered into the State property system,

customer service surveys, the use of electricity in State

buildings and programs for the State childcare facility. These

were created, primarily, using V isual B asic for appli cations and

Microsoft Excel.

14. Petitioner’s work on the LRPP was essentially clerical

in nature. It consisted of receiving numerous documents from

the various Divisions of the Department, and compiling all of

the documents into a single document, with consistent

formatting. His primary concerns were that the final document

used the same typeface, or font, the same margins, and that the

various compiled documents fell on the correct page. He had no

control over the data; he simply arranged the for matting and

entered information into spreadsheet and database programs for

use in the LRPP. Petitioner had no policy - making role in the

development of the LRPP. Petitioner helped Ms. Wofford in

assimilating information and verifying that the information

being provided by the various program areas was the most recent

and accurate. In addition, he made sure that the information

was uploaded electronically in the L egislature ’ s budget system.

Petitioner also created the formulas used to get to the output

re flected on the LRPP. However, these formulas were basic

mathematical formulas and not formulas that used policy

parameters in their creation. The evidence did not show

Petitioner’s assistance was independent or required significant

amounts of independent judgment.

15. Petitioner, also, along with Ms. Wofford, was involved

in meetings related to the preparation of the LRPP. These

meetings would have included Mr. Neal Standley, Budget Chief,

Ms. Sandy DeLopez, Division Director, Mr. Ken Wilson, for mer

Personnel Chief, Ms. Rene Knight current Personnel Chief, and

other man a gers. Again , the evidence did not demonstrate that

Petitioner’s role was other than to explain various processes

used to create the LRPP. His role did not involve policy

judgment s or require independent action or judgment.

16. Petitioner did not supervise any other employee; did

not give performance evaluations; did not work on collective

bargaining grievances or arbitrations or on Career Service

appeals; and did not assist in developing policies or materials

to be used in collective bargaining.

17. Petitioner did not regularly handle information that

was not subject to public inspection. Although he performed

clerical work on the LRPP, he never knowingly viewed inform ation

identifying positions the agency intended to eliminate or

consolidate due to reductions in force. In particular,

Petitioner did not have access to a database of positions to be

eliminated due to reductions in force, and did not know of the

existence of any such database.

18. In short, the evidence did not demonstrate that

Petitioner was either a managerial employee or an employee

involved with confidential matters. Therefore his position

should not have been reclassified from Career Service to SES.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

litigation. Sections 120.569 and 120.57(1), Florida Statutes

( 200 5 ; ) and Reinshuttle v. Agency for Healthcare Ad ministration ,

849 So. 2d 434 (Fla 1st DCA 2003).

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

(1) CAREER POSITIONS. — The career service

to which this part applies includes all

positions not specifically exempted by this

part, . . . .

(2) EXEMP T 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 majo rity 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

sub ordinate 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 risk administrative support and

attorneys who serve a s 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, psychologists licensed under

chapter 490 or chapter 4 91, 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 chapter 486, and speech therapists

licensed under part I of chapter 468 are

excluded, unless otherwise collectively

bargained.

21. 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 ministe rial 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 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(10).

7. They have a significant role in the

preparat ion 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 paragra ph (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),

above, the commission may consider historic

relations hips 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

subsection (4).

22. Because Respondent sought to reclassify the employment

position from Career 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).

23. Clearly, Petitioner does not meet the definition of a

managerial e mployee since he does not perform any of the

specified duties set forth in the statute. Thus, the only basis

for reclassifying Petitioner’s position must be based on whether

he is a confidential employee.

2 4 . In this case, the evidence did not demon strate that

Petitioner acted in a confidential capacity to either

Ms. Wofford, who herself was not shown to be a confidential

employee, or to anyone up the chain of command from Ms. Wofford.

School Board of Polk County v. Polk Education Association , 480

S o. 2d 1360 (Fla 1st DCA 1985).

25. During the relevant time period, Ms. Wofford may have

been a managerial employee. The evidence was not clear on this

point. However, her duties did not involve matters that were

confidential and her relationship w ith Petitioner was not one of

confidence. The evidence did not show that her duties required

the exercise of independent judgment in accordance with Section

447.203(4), Florida Statutes. In preparing the LRPP,

Ms. Wofford was responsible for providing so me analysis

regarding which positions would be slated for reductions in

force and the Department’s plans to achieve various goals.

Ms. Wofford also consulted with b ureau c hiefs in staff meetings

and briefings to provide information to the Division Directo r

that could be used in determining where job cuts would be made.

However, Ms. Wofford’s role is one of faithfully reporting to

her supervisors information provided by others. The evidence

did not demonstrate she had any authority or role in making

decis ions regarding that information. See Patricia Fuller v.

Department of Education , DOAH Case No. 04 - 0873SED.

26. Finally, in Reinshuttle v. Agency for Health Care

Administration , 859 So. 2d 434(Fla. 1st DCA 2003), the First

District Court of Appeal h eld that affected employees were

entitled to have an administrative hearing before the Division

of Administrative Hearings when positions were reclassified

pursuant to Section 110.205(2)(x), Florida Statutes. As a

result of the Legislature’s mandate, Resp ondent was authorized

to transfer certain positions to SES that met the exemptions set

forth in Section 110.205(2)(x) Florida Administrative Code Rule.

Chapter 60K - 1 , dealing with reclassification of positions,

cannot be construed to supersede the provisi ons of Section

110.205(2)(x), Florida Statutes , since the rule predates

enactment of the statute. See Cleveland v. Florida Department

of Children and Families District , 868 So 2d 1227, 1229 (Fla.

1st DCA 2004) (agency’s construction of rule rejected becau se of

conflict with legislative purpose and obsolescence due to

subsequent statutory measures), Willette v. Air Prods. , 700 So.

2d 397, 401 (Fla. 1st DCA 1997) (“A statute take precedence over

a rule . ”) .

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 Administrative Assistant II, is that of

a Career Service employee, setting aside the classification as

Select Exempt Service, and reinstatin g Petitioner as a person

entitled to rights pertaining to Career Service employees as of

the time of h is improper reclassification.

DONE AND ENTERED this 2nd day of December , 2005 , in

Tallahassee, Leon County, 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) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of December , 2005 .

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Flor ida 32399 - 0500

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Judson Chapman, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Room A - 432, Neil Kirkman Building

T allahassee, Florida 32399 - 0500

Fred O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Enoch Jon Whitney, General Counsel

Department o f Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

Melissa Horwitz, Es quire

6840 Highland Park Terrace

Tallahassee, Florida 32301

Avery D. McKnight, Esquire

Alien, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.