07-004004SED Leonard V. Smith vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, March 3, 2008.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD V. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4004SED

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDE R

A final hearing was conducted in this case on January 10,

2008, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jerry Faynham, Esquire

Patterson & Traynham

315 Beard Street

Tallahassee, Florida 32315 - 4289

For Respondent: Juan R. Collins, Esquire

Department of Children and Families

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

STATEMENT OF THE ISSUE

The issue is whether Respondent properly reclassified

Petitioner's position as a Senior Management Analyst Superv isor

from career service status to selected exempt status pursuant to

Sections 110.205(2)(x) and 447.203(4), Florida Statutes (2001).

PRELIMINARY STATEMENT

On or about July 1, 2001, Respondent Department of Children

and Family Services (Re spondent) adv ised Petitioner Le onard V.

Smith (Petitioner) that Respondent was transitioning

Petitioner's position as Senior Management Analyst Supervisor

from career service status to selected exempt service status.

By letter dated De cember 3, 2002, Respondent inform ed Petitioner

that he was being dismissed from his employment position.

According to the December 3, 2002, letter, Respondent took

the action pursuant to Part V, Section 110.604, Florida

Statutes, covering the selected exempt service system. The

letter stated that selected exempt service employees such as

Petitioner served at the pleasure of the agency head and were

subject to dismissal at the discretion of the agency head. The

letter advised Petitioner that his dismissal was exempt from the

provision of Chapter 120, Florida Statutes.

In a letter dated July 22, 2003, Respondent gave Petitioner

notice that he could challenge Respondent's decision to

reclassify his position on the basis that his position did not

qualify for selected exempt service stat us. On August 12, 2003,

Petitioner filed a request for a formal administrative hearing.

On September 4, 2007, Respondent referred the hearing request to

the Division of Administrative Hearings.

A Notice of Hearing dated September 17, 2007, scheduled t he

hearing for October 30, 2007. However, on October 24, 2007, the

parties filed a Joint Motion to Continue Hearing. On

October 25, 2007, the undersigned granted the motion.

The undersigned issued a Notice of Hearing dated

November 2, 2007. The notic e scheduled the hearing for

January 10, 2008.

During the hearing, Petitioner testified on his own behalf

and offered three exhibits that were accepted as evidence.

Respondent presented the testimony of two witnesses and offered

three exhibits that were a ccepted as evidence.

On January 18, 2008, the court reporter filed the hearing

transcript. On January 25, 2008, the parties filed a Joint

Motion for Extension of Time to Submit Recommended Orders. On

January 28, 2008, the undersigned issued an Order Gra nting

Extension of Time. On February 5, 2008, the parties filed their

Proposed Recommended Orders.

FINDINGS OF FACT

1. Petitioner worked for Respondent for approximately 30

years. He was a Board Certified Behavior Analyst and had

training as a Risk Manager.

2 . During his state employment , Respondent became known as

Respondent's expert for the Baker Act , Chapter 394, Part I,

Florida Statutes (Baker Act) . The Baker Act sets the standard

in Florida for determining whether people can be involuntaril y

examined and treated within public and private mental health

facilities.

3 . Petitioner's work as Respondent's Baker Act expert

involved very independent work . He performed extensive research

related to the laws of other states in the mental health a rea.

He analyzed and made recommendations on subjects such as misuse

of seclusion and restraints, the absence of documentation or

doctor's orders, and the availability of medication upon release

from a mental health facility.

4 . Petitioner's research and review of national

accreditation standards led to the development of standards for

state - wide Baker Act procedures and associated clinical care in

state - run mental health receiving and treatment facilities.

Ensuring compliance with these procedures an d/or standards

impacted state employees administering state facilities.

5 . Petitioner reviewed professional journals to learn

federal block grant requirements . Petitioner's research and

recommendations often resulted in propos ed amendments to state

la w and associated Florida Administrative Code rules.

6 . Petitioner's assignments included answering constituent

requests about the Baker Act from stakeholders on behalf of

legislators and the Governor's Office. He conducted public

hearings on the subje ct and gathered comments from a variety of

sources, including but not limited to, the Florida Psychiatric

Society, the Florida Psychological Society, the National

Alliance on Mental Illness, the Advocacy Center for Persons with

Disabilities, the Florida Co uncil for Community Mental Health,

and the Florida Alcohol and Drug Abuse Association.

7. In other words, Respondent relied on Petitioner to

answer inquiries about the Baker Act from the following: (a)

families with members who have mental illness ; (b ) Respondent's

district staff members ; (c) the staff members of private

provider agencies ; (d) labor unions ; (d) trade associations ; (e)

the judiciary; (f) law enforcement; and (g) legislative staff .

To say the least, Petitioner's duties regarding the Bak er Act

were not of a routine clerical or administrative nature.

8 . Sometime after 1997, Respondent reorganized its adult

mental health unit into two section s . The state mental health

treatment facilities constituted one section consisting of six

or se ven state - operated or state - contracted facilities for

people needing long - term care. The other section consisted of

community mental health facilities that provided mental health

services to people in communities, including people in crisis or

with forens ic involvement.

9 . After the reorganization, Petitioner worked primarily

in the adult community mental health section with private

providers . Petitioner worked with Ron Kizirian, his counterpart

in the state mental health treatment facilities section .

Petitioner used his Baker Act expertise, working as a team with

Mr. Kizirian, to coordinate and address all issues state - wide

regarding the Baker Act.

10 . Respondent's staff generally considered the adult

community mental health services to be more p rogressive in

attempting to provide patients with appropriate services. The

state institution services were typically characterized as

reactive, custodial, and generally , not positive. Petitioner's

duties after the reorganization included explaining the things

he did in the community side so that the institutional side

would understand the concepts and issues .

11 . At the time of the reorganization, there were

approximately 550 to 600 private , not - for - profit community

mental health providers with state contracts. The adult

community mental health section managed these contracts.

Petitioner's duties included engaging in preliminary contract

discussions with private providers, clarifying issues, and

generally participating in the development of the cont racts and

their associated budgets and grants . He also was involved in

recommending amendments to the contracts.

12 . As a contract manager, Petitioner monitored the

activities of private providers. He initiated corrective action

procedures . Petition er's duties included the following: (a)

making sure private contractors stayed within their budgets ; (b)

ensuring that private contractors agreed to performance

standards; (c) pre - auditing the vouchers of vendors ; and (d)

submitting vouchers for payment.

13 . Petitioner's job included investigating high profile

events on Respondent's behalf. For instance, Petitioner was

sent to investigate alleged abuses in crisis stabilization units

in Orland o , Florida. Petitioner would then draft a report for

his su periors.

14 . Petitioner would often represent his superiors in

meetings. Petitioner also performed as acting supervisor in the

absence of his immediate supervisor.

15 . On or about October 1, 2000, Petitioner was a career

service employee, serving as a n Operations and Management

Consultant. On March 6, 2001, Respondent changed the title of

Petitioner's position to Senior Management Analyst II and then

back to Operations and Management Consultant on the same day.

On March 16, 2001, Petitioner's pos ition changed again to Senior

Management Analyst II.

16 . On June 27, 2001, and effective July 1, 2001,

Petitioner's position title was reclassified to Senior

Management Analyst Supervisor, a selected exempt service

position. Petitioner was serving in that capacity when

Respondent terminated his employment on December 3, 2002.

17 . Petitioner never supervise d any other employees ex cept

to the extent that he served as acting supervisor in his

immediate supervisor's absence. He signed a performance

ev aluation on March 27, 2002, indicating that critical elements

involving directing leadership, staffing, performance

appraisal/feedback and discipline administration did not apply

to his performance for the rating period from October 30, 2001,

to March 6, 2 002. Petitioner performed the same duties and

functions before and after reclassification from career service

to selected exempt services.

18 . At the time of reclassification, Petitioner inquired

of his immediate supervisor why Respondent changed his position

from career service to selected exempt service. The immediate

supervisor referred Petitioner's inquiry to next higher level

supervisor who advised Petitioner not to challenge the

determination but to "just keep his job."

19 . During the discov ery phase of this proceeding,

Respondent contended that Petitioner's position was reclassified

for the following reason:

Petitioner's position was reclassified to

Select Exempt Service because his position

was managerial with [ sic ] the meaning of

Section 447.203(4), Florida Statutes.

Petitioner's duties and responsibilities as

Senior Management Analyst Supervisor was not

of a routine, clerical or ministerial nature

and required the exercise of independent

judgment and the position also required the

Plain tiff [ sic ] to develop performance

guideline for the state mental health

facilities, supervise adult mental health

staff and facilitate resolution of complex

programmatic, management, administrative or

regulatory issues affecting state mental

health facilit ies and districts.

20 . During the discovery phase of this proceeding,

Respondent produced a generic selected exempt service position

description for a Senior Management Analyst Supervisor. The

position description contains the duties and responsibilit ies

for senior staff in Respondent's state mental health facilities

section and Respondent's adult community mental health

facilities section.

21 . The position description sets forth some of

Petitioner's duties relative to the Baker Act for state - wide

public and private mental health institutions and/or facilities

and relative to other mental health issues in adult community

mental health facilities as follows: (a) provides consultation

to the state mental health treatment facilities and districts on

o perational and programmatic mental health system issues; (b)

facilitates resolution of complex programmatic, management,

administrative or regulatory issues affecting state mental

health treatment facilities and districts; (c)

develops/coordinates developm ent of performance guidelines for

state mental health treatment facilities; (d) reviews/analyzes

data and develops written reports as needed; (e) coordinates or

participates as a member of various workgroups and project teams

to address issues affecting pr ovision of mental health services

within the state; (f) assist s with negotiating or developing

contracts with private providers as needed; (g) prepares various

reports and correspondence; (h) assists with the development of

budget and rate amendments for m ental health entities; (i)

develops and utilizes consultant expertise as need in various

projects; (j) researches information regarding mental health

programs/systems; and (k) provides on - site visits to districts

and state facilities to provide technical a ssistance regarding

administrative and/or programmatic issues.

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2007).

23. This case preceded to hearing based upon the holding

in Reinshuttle v. Agency for Health Care Administration , 849 So.

2d 439 (Fla. 1st DCA 2003). The purpose was to factually

determine whether Petitioner's position as Senior Manag ement

Analyst Supervisor was properly reclassified from career service

to selected exempt service consistent with the expectations set

forth in Section 110 . 205(2)(x), Florida Statutes (2001).

2 4 . Because Respondent reclassified the employment

position fr om career service to selected exempt service, it

bears the burden of proving by a preponderance of the evidence

that the reclassification met statutory expectations. See Young

v. Department of Community Affairs , 625 So. 2d 831 (Fla. 1993);

Florida Dept. o f Transportation v. J.W.C. Co mpany, 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).

2 5 . Section 110.205(1), Florida Statutes (2001), provides

that "[t]he career s ervice to which this part applies includes

all positions not specifically exempted by this part, any other

provision of the Florida Statutes to the contrary

notwithstanding. " The exempted positions are listed in Section

110.205(2), Florida Statutes (2001) . Material to this case,

Section 110.205(2)(x), Florida Statutes (2001), specifically

lists managerial employees, as defined in Section 447.203(4),

Florida Statutes (2001) , as selected exempt service employees

effective July 1, 2001. The facts do not rev eal that Petitioner

served as a "supervisory employee" or acted as a "confidential

employee" pursuant to Section 110.205(2)(x), Florida Statutes

(2001).

2 6 . Managerial employees are defined in Section 447.203(4)

as follows in pertinent part:

( 4 ) "M anagerial 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 of more of the following ap plies:

1. They formulate or assist in

formulating policies which are applicable to

bargaining unit employees.

* * *

7. They have a significant role in the

preparation or administration of budgets for

any public agency or institution or

subdiv ision thereof.

27. Based upon the facts, Petitioner's duties and

responsibilities me t the criteria for a "managerial employee"

pursuant to Sections 447.203 (4)(a)1 . and 447.203(4)(a)7 . ,

Florida Statutes (2001). All other criteria that might

establish Petitioner's role as a "managerial employee" set forth

in Section 447.203(4), Florida Statutes (2001), do not pertain

here.

2 8 . Petitioner was more than a consultant. He conducted

research and made recommendations regarding mental health

standards and policies requiring independent judgment.

Respondent relied on Petitioner to work with legislative staff

and other stakeholders to draft statutes and administrative

rules relating to the Baker Act. He was the go - to person for

any public or private inquir ies about the Baker Act. He was

cha rged with the responsibility of investigating and making

reports on high - profile issues about abuse in mental health

facilities. Petitioner's job met the criteria established in

Section 447.203(4)(a), Florida Statutes ( 2001).

2 9 . Petitioner used his Baker Act expertise to assist

Respondent in formulating policies applicable to public mental

health institutions and to private community mental health

facilities. Once approved by his superiors, Petitioner's

recommendatio ns formed the basis for standards and policies that

were applicable to bargaining unit employees charged with

ensuring compliance by state institutions and employees actually

operating state mental health receiving and treatment

facilities. Petitioner's j ob met the criterion for "managerial

employees" set forth in Section 447.203(4)(a)1 . , Florida

Statutes (2001).

30 . Petitioner also played a significant role in managing

the contracts of private providers by participating in contract

and budget developmen t, monitoring budget activities, initiating

corrective budget and contract procedures, conducting pre - audit

of vouchers, and submitting vouchers for payment. Petitioner's

function as a manager of private provider contracts was more

than a processor or fun ctionary with no authority to make

substantive decisions about contract performance. Petitioner's

job met the criterion for "managerial employees" set forth in

Section 447.203(4)(a)7 . , Florida Statutes (2001).

31 . Petitioner's duties and responsibilit ies qualified him

as a managerial employee consistent with statutory expectations .

Respondent properly reclassified his position to selected exempt

service effective July 1, 2001.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is

RECOMMENDED:

That Respondent enter a final order finding that

Petitioner's position of Senior Management Analyst Supervisor

was that of a select exempt employee .

DONE AND ENTERED this 3rd day of March , 2008, in

Tallahassee, Leon Country, F lorida.

S

SUZANNE F. HOOD

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 wit h the Clerk of the

Division of Administrative Hearings

this 3rd day of March , 2008 .

COPIES FURNISHED:

Jerry Faynham, Esquire

Patterson & Traynham

315 Beard Street

Tallahassee, Florida 32315 - 4289

Juan Collins, Esquire

Department of Children

and Family Services

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

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

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 Services

Building 2, Room 204

1317 W inewood Boulevard

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 f iled with the agency that

will issue the Final Order in this case.