05-003365SED Janet Mitchell vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, July 28, 2006.

Summary: Respondent properly reclassified Petitioner`s position from career service to selected exempt service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET MITCHELL, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3365SED

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 19, 2006, in Tallahassee, Florida, before the Division

of Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Jerry Gayn h am, Esquire

Patterson & Traynham, P.A.

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

For Respondent: Avery D. McKnight, Esquire

Michael Mattimor e, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in the case is whether Petitioner’s employment

position was prope rly 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 o f Children and Family

Services (Department) reclassified Petitioner’s employment

position from the Career Service System to the Selected Exempt

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

Petitioner was notified by Respondent 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 September 16, 2005. A

formal hearing was scheduled for December 1, 2005. The parties

filed a Joint Motion for Continuance , which was granted, and the

hearing was rescheduled for January 30, 2006. The Department

filed an unopposed motion for continuance , which was granted.

The hear ing was rescheduled for February 20, 2006. The parties

filed a Joint Motion for Continuance , which was granted. The

hearing was rescheduled for April 19, 2006.

At hearing, Petitioner testified on her own behalf.

Petitioner’s Exhibits numbered 1 through 3 were admitted into

evidence. Respondent presented the testimony of Petitioner,

Sarah Craney, and Thomas Sylvester. Respondent’s Exhibits

numbered 1 through 3 and 6 through 13 were admitted into

evidence. Official recognition was taken of Florida

Admin istrative Code Chapter 60K - 1.

A two - volume Transcript of the final hearing was filed on

May 3, 2006. The parties requested and were granted leave to

file proposed recommended orders 30 days after the filing of the

transcript. The parties filed a Joint Motion for Enlargement of

Time in which to file proposed recommended orders. The motion

was granted. The parties timely filed Proposed Recommended

Orders, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Pet itioner was employed with the Department beginning

in 1988 as a Family Services Counselor. In January 2001, she

was promoted to the position of Family Services Counselor

Supervisor.

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

was classif ied under the Career Service System. The position

was reclassified from Career Service to Selected Exempt Service

(SES) effective July 1, 2001.

3. At the time she was promoted, Petitioner carried a full

load of cases. Typically, a family services coun selor would

carry a case load of approximately 40 cases. After her

promotion, Petitioner kept working on many of her cases , as

opposed to reassigning them to family services counselors who

were her subordinates. Petitioner insists that she continued to

p ersonally work on cases because there were not enough family

services counselors to handle the case load and that the work

needed to be done. Some of the duties she continued to perform,

which were duties normally performed by family services

counselors, were writing judicial reviews for court proceedings

involving clients, writing case plans, and completing daycare

referrals.

4. Petitioner does not dispute that she performed some

supervisory duties. At hearing, she acknowledged that she

performed supe rvisory duties, but asserts that she spent less

than 50 percent of her time in the performance of supervisory

activities. Petitioner acknowledges, however, that the time she

spent on non - supervisory tasks lessened as time went on and that

by September 200 1, more employees were added to the Department

and she performed more supervisory tasks. The supervisory tasks

that she performed included approving timesheets, and travel and

leave requests of the employees she supervised. Petitioner also

reviewed and a pproved reports prepared by subordinates. She had

daily contact with her subordinates, in person and by telephone,

providing direction and assistance when needed and encouraging

employees to meet responsibilities. Petitioner held monthly

staff meetings w ith subordinates which generally lasted one hour

and coordinated the work of her unit, keeping abreast of court

hearings and required reports.

5. Petitioner’s position description is not in evidence.

However, a 2001 position description of another Family Services

Counselor Supervisor is in evidence and describes the duties and

responsibilities of the position as follows:

This is a highly responsible supervisory

position regarding expertise in the

management and delivery of the Department of

Children and F amilies services for children

and families.

6. The position description also provides percentages of

time regarding activities engaged in pertaining to these duties

and responsibilities:

60% Supervision and training of counselors

and clerical staff who administer the

Protective Services and Voluntary Family

Services Programs. Administrative duties

include, but are not limited to: insuring

programmatic policies, goals and procedures

are complied with, case review and

assignment, evaluates employee performance,

develops corrective action plans,

statistical reporting, approves leave,

maintain case record controls within the

unit, and reviews and approves all

correspondence including court documents and

reports.

15% Coordinate and maintain open

commu nications with other C&F units, law

enforcement, judicial system, school system

and other public and private agencies.

15% Participate in staffings and meetings

with other supervisors, administrators and

outside agencies, public speaking, general

communi ty relations and training sessions.

5% Performs travel in relation to the above

duties in order to provide more effective

supervision of direct services staff and to

evaluate and monitor the delivery of direct

services to clientsavel is also

perform ed for purposes of attending or

conducting staff meetings, conferences,

training sessions, etc. and in relation to

other duties as required.

5% Performs other related duties as

required.

7. Thomas Sylvester is currently Program Operations

Administrato r for the Department. Prior to that, he served as

an Operations Manager Consultant II. During that time,

Mr. Sylvester supervised Petitioner’s supervisor, which placed

her in his chain - of - command from October 2000 until her

resignation in November 2001. He congratulated her when she

received the promotion to family services counselor supervisor

and advised her to wean her caseload within 30 days.

8. According to Mr. Sylvester, Petitioner was in charge of

a foster care unit , which usually consisted of si x family

services counselors and a secretary. She was responsible for

coordinating the activities of the counselors, reviewing the

work product of the employees she supervised, giving them

direction, and generally seeing that the work allocated to her

uni t was done correctly and in a proper manner.

9. Mr. Sylvester considered Petitioner to be a full - time

supervisor with the authority to evaluate her employees, hire or

recommend hiring, promote or recommend promotion, discharge or

recommend discharge, di scipline or recommend discipline .

10. Mr. Sylvester confirmed that the position description

in evidence for a family services counselor supervisor is a

standard position description for that position in 2001 and that

the duties and responsibilities on t he form would have been the

same as for Petitioner. That assertion is accepted as credible.

11. Sarah Craney is an Operations Review Specialist for

the Department. In 2001, she was a Program Administrator. She

was Petitioner's direct supervisor from approximately August

2001 until Petitioner's resignation in November 2001. Prior to

August, Petitioner was supervised by Terry Merkerson.

12. Petitioner recalls that in June 2001, Ms. Merkerson

instructed her to remove Petitioner's name from all of the c ases

that she was handling, with the exception of three cases that

involved the termination of parental rights. Petitioner

transferred cases from her name to one of her family support

counselors under her supervision, Debra Baptiste.

13. Ms. Craney and M r. Sylvester concur that Petitioner

should not have maintained a caseload when she became a

supervisor and that it was inappropriate for her to do so.

Petitioner insists that Ms. Merkerson did not inform her that

she needed to transfer the bulk of her c ases to her subordinates

until June 2001, and that Ms. Merkerson did not specify that she

could no longer work on the transferred cases after transferring

them to a subordinate.

14. Petitioner's testimony that she continued to work on

cases after her pr omotion in January 2001, which required her to

perform many non - supervisory tasks, is accepted as credible.

However, she was told in June 2001, the month before the

position was reclassified as supervisory, to reassign all but

three of her cases. It is n ot logical that Ms. Merkerson, who

did not testify, would instruct Petitioner to transfer the cases

yet expect her to continue to do the bulk of the work on them.

In any event, as more employees were added, Petitioner began to

spend more time on superviso ry tasks so that the majority of her

time was spent as a supervisor.

15. In October 2001, Ms. Craney wrote a memorandum to

Mr. Sylvester and Mr. Barry, the District Administrator, listing

concerns Ms. Craney had about Petitioner's work performance as a

su pervisor and recommending that Petitioner be terminated from

employment.

16. Petitioner was employed by the Department until

November 2, 2001, when she resigned pending being terminated.

17. The weight of the evidence supports a conclusion that

the pos ition of Family Services Counselor Supervisor was

properly classified as supervisory consistent with Section

110.205(2)(x), Florida Statutes, and that at the time the

position was reclassified in July 2001, Petitioner spent a

majority of her time supervisi ng employees as contemplated by

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

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2005), Reinshuttle v.

Department of Children and Families , 849 So. 2d 434 (Fla. 1st

DCA 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

s pecifically exempted by this part . . .”).

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

pertinent part, as follows:

(2) EXEMPT POSITIONS. -- The exempt positions

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

spend the majority of their time

communicating with, motivating, training,

and evaluating em ployees, 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 employe es serving as

supervisors, administrators, and

directors.

21. Respondent has the burden of establishing by a

preponderance of the evidence that the reclassification of

Petitioner's employment position was proper under the applicable

statutes. Flori da Department of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st

DCA 1977). Based upon the parties’ arguments and the evidence

presented, the issu e is whether her position was that of a

supervisory employee as defined in Section 110.205(2)(x), as

opposed to whether it was managerial or confidential.

22. Petitioner raised for the first time in the Pre -

Hearing Stipulation the argument that the Depart ment's action of

reclassifying Petitioner's position violates Section

120.57(1)(e), Florida Statutes, by applying an unadopted rule.

Petitioner does not specify which criteria enumerated within

Section 120.57(1)(e) are alleged to have been violated.

Peti tioner argues that the Department relied on a Department of

Management Services (DMS) "directive" that Petitioner perceives

to be in conflict with the definition of "supervisory" contained

within Section 110.205(2)(x), Florida Statutes. 1/

23. Petition er's argument in this regard is rejected. The

allegation that first appears in the Pre - Hearing Stipulation is

not sufficiently pled to put Respondent on notice as to what it

must defend regarding the allegation that it took action based

upon an unadopted rule.

24. Even if sufficiently pled, there is insufficient

evidence to support this argument. The document in evidence

which Petitioner relies upon appears to be a Department internal

memorandum, not a DMS directive, which references a

"clarification" from DMS as a "guideline . " In the Department's

answer to Petitioner's Interrogatory 5, which is in evidence,

the Department clearly states that the statutory definition

found in Section 110.205(2)(x), Florida Statutes, was used to

assign this supervisory position to the SES. See also Fuller v.

Department of Education , 927 So. 2d 28 (Fla. 1st DCA 2006),

(Legislature directed Department of Management Services to

restructure the state's personnel system after which the state

agencies became responsible for t he application of the system

and had the authority to reclassify established positions within

the classes established by DMS) .

25. Petitioner's employment position meets the definition

of "supervisory employee" as described above. Accordingly, the

recla ssification 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, it is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order finding that the position held by Petitioner Janet

Mitchell July 1, 2001, was properly classified into the selected

exempt service.

DONE AND ENTERED this 28th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAR OS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 28th day of July, 2006.

ENDNOTE

1/ In her Proposed Recommended Order, Petitioner retreats

somewhat from her position in the Pre - Hearing Stipulation by

arguing that DMS's memorandum to all agencies " may have applied

a n unadopted rule in reclassifying her position within SES."

(emphasis supplied)

COPIES FURNISHED :

Avery D. McKnight , Esquire

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Jerry Gaynham, Esquire

Patterson & Tra y nh am, P.A.

Post Office Box 4289

Tallahassee, Florida 32315 -

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copela n, General Counsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Luci D. Hadi, Secretary

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Bo ulevard

Tallahassee, Florida 32399 - 0700

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 the agency that

will issue the final order in this case.