06-001911SED Stephen Ford vs. Department Of Management Services Status: Closed Recommended Order on Friday, January 5, 2007.

Summary: The evidence showed that Petitioner had management responsibilities sufficient to support reclassification under Service First.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN FORD , )

)

Petitioner, )

)

vs. ) Case No. 06 - 1911 SED

)

DEPARTMENT OF MANAGEMENT )

SERVICES , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in

the a bove - styled case on September 29, 2006 , in Tallahassee,

Florida, before the Honorable Diane Cleavinger, Administrative

Law Judge at the Division of Administrative Hearings.

APPEARANCES

For Petition er: Jerry Gaynham, Esquire

Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: Avery D. McKnight, Esquire

Alien, Norton and Blue, P.A.

906 Nort h Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

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, 2 001, pursuant to Section

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

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Management Services

(DMS) reclassified Petitioner’s employment posi tion from Career

Service to Select Exempt Service (SES) unde r the “Service First”

ini tiative codified in Section 110. 205(2)(x), Flo rida Statutes.

T he Department advised Petitioner that he could file a petition

challenging the reclassification of his position. On May 24,

2006 , Petitioner filed a petition challengi ng the

reclassification. The Petition was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified on his own behalf and

offered one exhibit into evidence. The Department presented the

testimony of one witness and offered seven exhibits into

evidence. The deposition testimony of Richard Youse was also

admitted into evidence.

After the hearing, the parties filed Propose d Recommend

Orders on November 17 , 200 6 .

FINDINGS OF FACT

1. In 1985 , Petitioner was employed by the Department as

an Engineer III. He was eventually promoted to Engineer IV and

then to Engineer IV coordinator . Prior to July 1, 2001,

Petitioner’s positions were classified as career service. On

July 1 , 2001 , Petitioner’s position was cha nged from a career

service classification to an SES classification and d esignated

as a n Engineer Supervisor IV . A knew job description was also

prepared.

2. Throughout his employment, Petitioner’s main duty was

to inspect, maintain and repair fire and security alarm systems

in State office buildings. In that capacity and depending on

the particular system, Petitioner worked as part of and

coordinated with a team of one to two other inspectors.

3 . Petitioner’s position as an Engineer IV was a position

within the PERC certified Professional Career Service collective

bargaining unit, represented by Florida Public Employees Council

79, Association of Federal, State, County and Municipal

Employees Union (AFSCME). For inclusion within such a unit the

position was considered to not involve managerial or supervisory

functions.

4 . In fact , Petitioner’s positions as an Engineer III and

IV did not involve supervisory functions. However, when he

became an Engineer IV coordinator, Petitioner had some

supervisory duties. Those duties were primarily approving time

sheets and performing annual employee performance evaluations.

Employee assignments and training were handled as a team with a

particular employee’s specific equipment knowledge and buil ding

knowledge being key factors. When work was performed together,

the employee with the greater expertise with the system directed

the work. Prior to his termination, Petitioner supervised Ed

McCann and Richard Lamberto.

5 . Approximately 90 perce nt of Petitioner’s time was spent

responding to calls regarding the malfunctioning of fire and

security systems. About five percent of his time was spent

performing routine maintenance on such systems and another two

to four percent on responding to fire marshall’s inspection

reports. Less than one percent of his time was spent on

supervisory duties. Petitioner’s primary duties involved the

exercise of independent judgment. His duties were not routine

or clerical in nature. Petitioner did not have the power to

hire and fire an employee or the power to make purchase

decisions . He could make effective recommendations regarding

those decisions. He did not have authority over any budgetary

matters. There was no evidence that Petitioner’s position dealt

w ith confidential matters. In fact, Petitioner’s actual job

performance did not change after his position was reclassified

to Engineer Supervisor IV , SES . His day - to - day performance did

not change primarily because his office was seriously

understaffed fo r the statewide duties of their office.

6 . However, t he new SES description expanded the

supervisory or managerial duties of Petitioner’s old c areer

s ervice position description. In pertinent part, the position

description as of July 2 , 2001, stated the following:

20% Supervisory:

1. Supervision of Fire & Safety employees

in their duties and responsibilities.

Evaluations and review of job performance,

recommendation of disciplinary action if

necessary, training and continued education.

2. Superv ise the project management duties

that include the approval of timesheets,

project specification, drawings, purchase

orders, requisitions, correspondence,

travel, purchase order completion of

contract pay requests.

3. Meet regularly with subordinate st aff to

discuss office procedures, work assignments

and Division issues and goals.

4. Addresses performance issues promptly

and uses progressive and corrective action

to resolve employee performance problems.

5. Updates, discusses and presents

Perform ance Planning and review forms,

position descriptions and office procedures

to subordinate staff.

6. Provides each employee with a

performance review within the designated

time period in accordance with established

rules and procedures.

7 . Ensure staff attend necessary training

with designated time frames.

8. Follows established rules, regulations

and procedures for attendance and leave,

travel reimbursements, appointment

procedures, affirmative action and invoice

processing.

Duties contained in numb ers three through eight were expanded

from his earlier 1999 position description.

7 . The 2001 position description also had expanded

supervisory or managerial duties contained in its other

sections. The description stated, in relevant part:

40% pr eventive Maintenance:

* * * *

2. Ensure the desired maintenance is being

performed on a timely basis that does not

fall within normal operations.

* * * *

4. Assist in providing engineering

direction on system modifications,

installations, upgrades an d also see that

the actual preventive maintenance efforts

are being carried out.

5. Set priorities for maintenance projects;

* * *.

* * * *

10% Specifications:

* * * *

2. Monitor contractors through contract

period for compliance with specifications .

* * * *

7. Instruct user personnel on the

prescribed utilization, operation, testing

and maintenance of alarms on the alarm

systems installed.

* * * *

10% Other:

* * * *

3. Keeps supervisor fully informed

regarding work - related activities, releva nt

issues, upcoming events and potential

problems.

4. Ensures requests for leave are submitted

and approved in accordance with established

rules and Division procedures.

* * * *

8 . Petitioner remained employed under the new

classification until h is termination on August 12, 2002 .

Petitioner was terminated in part for failing to perform his

duties as a supervisor in overseeing the timely performance of

repairs and setting priorities for accomplishing those tasks.

9 . T he evidence demonstrate d that Petitioner ’s supervisory

duties were expanded to include a significant amount of

supervision and management. However, the evidence did not

demonstrate that Petitioner actually spent a majority of his

time supervising his staff. The evidenc e did sho w that he did

spend some amount of time engaged in non - routine, non - clerical

activities that involved the exercise of independent judgment,

combined with a significant role in em ployee personnel

administration in that he had the authority to effectivey

rec ommend employment actions. The fact that he did not exercise

such authority is not controlling and only demonstrates that the

need for such action had not arisen. Given these duties, t he

reclassification of Petitioner’s position was appropriate und e r

the Service First Initiative.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the parties to and the s ubject matter of this

proceeding . §§ 120.569 and 120.57(1), Fla . Stat . ( 200 5 ; ) and

Reinshuttle v. Agency for He althcare Administration , 849 So. 2d

434 (Fla 1st DCA 2003).

11 . In 2001, the legislature amended Section 110.205,

Fl orida Stat utes , to exempt from career service supervisory,

managerial and confidential employees. This legislation became

known as th e Service First initiative. As a result of the

Legislature’s mandate, Respondent was authorized to transfer

certain positions to SES that met the exemptions set forth in

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

Code Rule Chapter 60 K - 1 deal t with reclassification of

positions, prior to the Service First Initiative. The rule,

while not repealed until after passage of Service First, cannot

be construed to supersede the provisions of Section

110.205(2)(x), Florida Statutes , since the r ule 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 because of

conflict with legislative purpose and obsolescence du e to

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

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

a rule . ”) .

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

(1) CAREER POSITIONS. — The career service

to which thi s part applies includes all

positions not specifically 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 t o 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 directors. Excluded are

employees also designated as special risk or

special risk 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 chapte r 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 specialists licensed under

chapte r 491, physical therapists licensed

under chapter 486, and speech therapists

licensed under part I of chapter 468 are

excluded, unless otherwise collectively

bargained.

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

states:

(4) "Managerial e mployees" 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 form ulate 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 ro le 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

ad ministrative 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 pub lic 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 su ch

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 purs uant

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

above, 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

subsection (4).

14 . Because Respondent sought to reclassify the employment

position from Career Service to Select Exempt Service, it bears

the burden of proof by a preponderance of the evidence that the

reclassific ation 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).

15 . In this case, the evidence did not demonstrate tha t

Petitioner was a confidential or supervisory employee . Thus,

the only basis for reclassifying Petitioner’s position must be

based on whether he was a manager ial employee.

16 . T he evidence did demonstrate that Petitioner was a

managerial employee since his job was not routine and or

clerical and he had effective authority to recommend personnel

action . Therefore the reclassification of Petitioner’s posit ion

was appropriate.

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 was appropriately reclassified as Select

Exempt Service .

D ONE AND ENTE RED this 5th day of January , 200 7 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 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 5th day of January , 200 7 .

COPIES FURNISHED :

Avery McKnight , Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4289

Steven S. Ferst, General Counsel

Department of Management Services

4050 Esplanade W ay

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0 950

Linda South, Secretary

Department of Management Services

4050 Esplanade Way

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the rig ht 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.