08-003841SED Carol Wells vs. Department Of Juvenile Justice Status: Closed Recommended Order on Thursday, February 5, 2009.

Summary: Respondent did not violate the appropriate rules when laying off Petitioners.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA PRESTON, STEPHEN REID, )

CAROL WELLS, AND TITUS TILLMAN, )

)

Petitioners, )

) Case Nos. 08-2126SED

vs. ) 08-2161SED

) 08-3841SED

DEPARTMENT OF JUVENILE JUSTICE, ) 08-4189SED

)

Respondent. )

)

RECOMMENDED ORDER

On December 17, 2008, pursuant to notice, a hearing was held

in Tallahassee, Florida, by Lisa Shearer Nelson, the designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Tallahassee, Florida 32303

For Respondent: Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive, Suite 3200

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what

remedies should be awarded.

PRELIMINARY STATEMENT

This proceeding involves the process used to lay-off the

employment of four former employees of Respondent, Department of

Juvenile Justice (Department), and whether the applicable rules

in place at the time of the employees' lay-off were followed.

Petitioner Gloria Preston filed a Petition for a Section

120.569, 120.57(1) Hearing with the Department on June 22, 2007.

The Petition was forwarded to the Division of Administrative

Hearings for assignment of an administrative law judge on

March 20, 2008.

The case was docketed as Case No. 08-2126, assigned to the

undersigned, and an Initial Order issued April 30, 2008. On

May 7, 2008, the parties filed a Joint Motion to Place Case in

Abeyance, asserting that on March 5, 2008, the Petitioner had

filed a Petition for Review in the First District Court of Appeal

that concerned issues central to the issues presented in this

case. The parties agreed that the case could not proceed until

such time as the First District ruled on the petition and

relinquished jurisdiction. In light of the Motion, an Order

Placing Case in Abeyance issued May 9, 2008, directing the

parties to advise of the status of the proceedings on or before

June 30, 2008, or upon relinquishment of jurisdiction by the

First District in Case No. 1D08-1083, whichever was earlier.

On May 23, 2008, a Notice of Appellate Disposition was

filed, indicating that in light of the referral of the case to

the Division of Administrative Hearings, the First District

denied the petition for review as moot. However, the Court

awarded Petitioner Preston appellate attorney's fees and remanded

the issue of the appropriate amount to the Division, should the

parties be unable to reach agreement. The case was noticed for

hearing to be conducted July 29, 2008. On July 3, 2008, a Joint

Motion for Continuance was filed, and the matter was rescheduled

for August 19, 2008.

Petitioner Steven Reid filed a Petition for a Section

120.569, 120.57(1) Hearing on April 17, 2008. The case was

referred to the Division for assignment of an administrative law

judge May 1, 2008, and was also assigned to the undersigned and

docketed as Case No. 08-2161. Because the parties requested

proceedings be conducted by means of video teleconferencing

between Tallahassee and Fort Myers, the case was transferred to

Administrative Law Judge William Quattlebaum, and noticed for

hearing July 17, 2008. On June 20, 2008, the parties filed a

Joint Motion for Continuance, which was granted June 26, 2008,

with directions that the parties file a Joint Status Report

July 17, 2008.

Petitioner Carol Wells filed her Petition for Section

120.569, 120.57(1), Hearing with the Department on July 25, 2008,

and the Petition was referred to the Division for assignment of

an administrative law judge August 5, 2008. The case was

docketed as Case No. 08-3841. On that same day, the parties

filed a Joint Motion for Consolidation, requesting that Case Nos.

08-2126, 08-2161, and 08-3841 be consolidated for the purposes of

hearing, that the hearing be conducted in Tallahassee, and that

the hearing previously scheduled to take place August 19, 2008,

for Case No. 08-2126 be continued.

The three cases were consolidated by Order dated August 11,

2008, and the consolidated proceeding was rescheduled for hearing

October 16, 2008. Petitioner Titus Tillman filed the final

Petition for Section 120.569, 120.57(1), Hearing with the

Department on August 12, 2008, and it was referred to the

Division August 25, 2008, with a Motion for Consolidation. The

case was docketed as Case No. 08-4189 and consolidated with the

other three cases by Order dated September 9, 2008. The Order

confirmed that hearing for all four cases remained scheduled for

October 16, 2008.

On October 13, 2008, the Department filed a Motion for

Summary Order. On October 14, 2008, Petitioners filed an

Unopposed Motion to Continue Hearing based upon the illness of

one of the Petitioners, and the case was rescheduled for

December 17, 2008. On October 17, 2008, Petitioners filed a

Motion for Leave to file an Amended Petition, followed on

October 22, 2008, by a Memorandum Opposing Agency Motion for

Summary Order and Cross-Motion for Summary Order.

By Order dated November 12, 2008, the undersigned noted that

no authority existed for issuance of summary orders where no

final agency authority exists, denied both Motions for Summary

Order and granted the Motion for Leave to File an Amended

Petition. The parties filed a Joint Prehearing Stipulation

containing certain stipulated facts that, where relevant, have

been incorporated into this Recommended Order.

At the hearing conducted December 17, 2008, the parties

requested, and the undersigned agreed, that issues regarding rate

of pay and back pay would be addressed by separate hearing should

one be necessary. The parties also requested that the issue of

appellate attorneys ordered by the First District in Case

No. 08-2126 be delayed as the parties might still agree. A

settlement of the attorney's fees and costs award was

subsequently filed January 21, 2009, and no further action is

necessary with respect to those fees. All four Petitioners

testified at hearing, and Petitioners' Exhibits 1-6 were admitted

into evidence. The Department presented the testimony of three

witnesses and Respondent's Exhibits 1-3 were admitted. Joint

Exhibits 1-9 were also admitted. The proceedings were recorded

and the Transcript was filed with the Division on January 5,

2008. Both Proposed Recommended Orders were timely filed and

have been carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. On or about April 2, 2001, the Department notified

Petitioners that their positions were recommended for transfer

from Career Service to Select Exempt Service.

2. On July 1, 2001, the Petitioners' positions were

transferred from Career Service to Select Exempt Service.

3. Prior to Special Legislative Session C of 2001, the

Department's Office of Prevention and Victim Services consisted

of 94 positions, organized into four bureaus: the Office of

Victim Services; the Office of Partnership and Volunteer

Services; the Prevention Office; and the Intensive Learning

Alternative Program.

4. During Special Legislative Session C, the Florida

Legislature passed Committee Substitute for Senate Bill No. 2-C,

which reduced appropriations for state government for fiscal year

2001-2002. This special appropriations bill was approved by the

Governor on December 13, 2001, and was published as Chapter 2001-

367, Laws of Florida.

5. As a result of Chapter 2001-367, 77 positions were cut

from the Office of Prevention and Victim Services budget entity.

The appropriations detail for the reduction from the legislative

appropriations system database showed that the reduction of

positions was to be accomplished by eliminating the Intensive

Learning Alternative Program, which consisted of 19 positions;

eliminating the Office of Victim Services, which consisted of

15 positions; eliminating the Office of Partnership and Volunteer

Services, which consisted of 23 positions; and by cutting 20

positions from the Office of Prevention. Seventeen positions

remained.

6. Immediately after conclusion of the Special Session, the

Department began the process of identifying which positions would

be cut. A workforce transition team was named and a workforce

transition plan developed to implement the workforce reduction.

The workforce reduction plan included a communications plan for

dealing with employees; an assessment of the positions to be

deleted and the mission and goals of the residual program; a plan

for assessment of employees, in terms of comparative merit; and a

placement strategy for affected employees.

7. Gloria Preston, Stephen Reid and Carol Wells were

Operations and Management Consultant II's and worked in the

Partnership and Volunteer Services Division. According to the

budget detail from Special Session C, all of the positions in

this unit were eliminated.

8. Titus Tillman was an Operations and Management

Consultant II and worked in the Prevention and Monitoring

division. According to the budget detail provided from Special

Session C, 20 of the positions in this unit were eliminated.

9. On December 7, 2001, the Department notified Petitioners

that effective January 4, 2002, each of their positions were

eliminated due to the Florida Legislature's reduction of staffing

in a number of Department program areas during the special

session. Petitioners were provided with information regarding

what type of assistance the Department would provide.

Specifically, the notices stated that the employees would be

entitled to the right of a first interview with any state agency

for a vacancy to which they may apply, provided they are

qualified for the position; and that they could seek placement

through the Agency for Workforce Innovation. The notice also

provided information regarding leave and insurance benefits, and

identified resources for affected employees to seek more

clarification or assistance.

10. At the time Petitioners were notified that their

positions were being eliminated, Florida Administrative Code

Rules 60K-17.001 through 60K-17.004 remained in effect. These

rules required agencies to determine the order of layoff by

calculating retention points, based upon the number of months of

continuous employment in a career service position, with some

identified modifications. However, by the express terms of the

"Service First" Legislation passed in the regular session of

2001, the career service rules identified above were to be

repealed January 1, 2002, unless otherwise readopted. § 42, Ch.

2001-43, Laws of Fla. Consistent with the legislative directive

new rules had been noticed and were in the adoption process.

11. On January 4, 2002, each of the Petitioners were laid

off due to the elimination of their positions. At the time the

layoff became effective, new rules regarding workforce reductions

had been adopted. Florida Administrative Code Rule 60K-33,

effective January 2, 2002, did not allow for the "bumping"

procedure outlined in Rule 60K-17.004. Instead, it required the

Department to appoint a workforce transition team for overseeing

and administering the workforce reduction; assess the positions

to be deleted and the mission and goals of the remaining program

after the deletion of positions; identify the employees and

programs or services that would be affected by the workforce

reduction and identify the knowledge, skills and abilities that

employees would need to carry out the remaining program.

12. The workforce transition team was required under one of

the new rules to consider the comparative merit, demonstrated

skills, and experience of each employee, and consider which

employees would best enable the agency to advance its mission.

13. Although the Department created a workforce reduction

plan and Career Service Comparative Merit Checklist, it did not

complete a checklist for any of the Petitioners because it had

previously reclassified their positions as Selected Exempt

Service. No checklist is expressly required under Rule 60L-33.

While no checklist was completed on the Selected Exempt Service

employees, each employee in the Office of Prevention and Victim

Services was assessed based on the positions remaining and the

mission of the Department in order to determine which employees

to keep and which to lay off.

14. Of the 17 remaining positions, the Department

considered the legislative intent with respect to the elimination

of programs and the individuals currently performing the job

duties that were left. It also evaluated the responsibilities

remaining, which included overseeing the funding of statewide

contracts and grants. The Department also considered which

employees should be retained based upon their ability to absorb

the workload, their geographic location, and their skill set.

15. The Department determined that the employees selected

for the remaining positions were the strongest in their field,

had fiscal management and programmatic experience, and were best

equipped to undertake the workload.

16. At the time of the layoff, Petitioners were each long-

serving, well-qualified and highly rated employees of the State

of Florida. Each was prepared to move in order to retain

employment.

17. In April 2002, AFSCME Florida Public Employees 79, AFL-

CIO (AFSCME), filed an unfair labor practice charge with the

Public Employees Relations Commission (PERC) against the

Departments of Management Services and Juvenile Justice. AFSCME

alleged that the Department failed to bargain in good faith over

the layoff of Department employees.

18. The parties entered into a settlement agreement,

effective June 28, 2002. The settlement agreement required the

Department to provide timely notice to AFSCME of impending

layoffs, bargain over the impact of workforce reductions, and

provide assistance for employees who were laid off between

December 31, 2001, and January 4, 2002, but who had not attained

other full-time Career Service employment. There is no evidence

the Petitioners in this case were members of AFSCME. Nor is

there any evidence that the Department failed to assist

Petitioners in seeking new employment.

19. In July of 2003, the First District Court of Appeal

decided the case of Reinshuttle v. Agency for Health Care

Administration , 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the

court held that employees whose employee classifications were

changed from Career Service to Selected Exempt Service must be

afforded a clear point of entry to challenge the reclassification

of their positions.

20. The Department notified those persons, including

Petitioners, whose Career Service positions had been reclassified

to Selected Exempt Service, that they had a right to challenge

the reclassification.

21. Each of the Petitioners filed a request for hearing

regarding their reclassifications, which was filed with the

Agency Clerk in August of 2003. However, the petitions were not

forwarded to the Division of Administrative Hearings until

May 2007.

22. All four cases were settled with an agreement that

their positions were reclassified as Selected Exempt Service

positions in error, and that they should have been considered

Career Service employees at the time their positions were

eliminated.

23. Petitioners and the Department also agreed that any

challenge by Petitioners to the layoffs would be forwarded to the

Division of Administrative Hearings.

24. Gloria Preston began work for the State of Florida in

1975. Her evaluations showed that she continuously exceeded

performance standards, and she had training and experience in

managing and monitoring grants and contracts. However, no

evidence was presented regarding how many retention points she

would have been awarded under former Rule 60K-17.004, and it is

unclear whether she was in a Career Service position during the

entire tenure of her employment with the State.

25. Stephen Reid began work for the State of Florida in

1977. He left state government for a short time and returned in

1984. With the exception of his initial evaluation with the

Department of Corrections, he has received "outstanding" or

"exceeds" performance evaluations. Reid has experience in

contract creation and management. However, no evidence was

presented regarding how many retention points he would have been

awarded under former Rule 60K-17.004, or whether he was in a

Career Service position during the entire tenure of his

employment with the State.

26. Carol Wells began employment with the State of Florida

in 1975. Similar to Mr. Reid, all of her evaluations save her

first one were at the "exceeds" performance level, and she has

experience in writing and managing contracts. However, no

evidence was presented regarding how many retention points she

would have been awarded under former Rule 60K-17.004, or whether

she was in a Career Service position during the entire tenure of

her employment with the State.

27. Titus Tillman began employment with the State of

Florida in 1993. He was subject to a Corrective Action Plan in

May 2000, but received "above average" or "exceeds" performance

evaluations. Like the other Petitioners, no evidence was

presented regarding how many retention points he would have been

awarded under former Rule 60K-17.004, or whether he was in a

Career Service position during the entire tenure of his

employment with the State.

28. Likewise, no evidence was presented regarding the

retention points that were earned by any of the people who were

retained by the Department to fill the remaining positions. No

evidence was presented regarding the qualifications of those

retained employees, in terms of their comparative merit,

demonstrated skills, and experience in the program areas the

Department would continue to implement.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

30. Petitioners are challenging the elimination of their

positions, and in the Amended Petition Petitioners request that

"corrective action" be taken to address their unlawful layoff,

"including, but without limitation, rescinding the layoffs,

correcting pay and benefits records and contributions, awarding

overtime pay where appropriate and other appropriate relief."

31. The party asserting the affirmative of an issue bears

the burden of proof. Florida Department of Transportation v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1997). Thus, the Department has the burden to show

the appropriate procedure was used in implementing the workforce

reduction. Petitioners have the burden to show that they should

have been retained.

32. The resolution of the issues in this case is clouded by

the erroneous classification of Petitioners as Selected Exempt

Employees at the time their positions with the Department were

eliminated. There is no question that Selected Exempt employees

would not be entitled to the procedures under either Rule 60K-17

or 60L-33 because they serve at the pleasure of the agency head.

§ 110.604, Fla. Stat. (2001). Petitioners, however, were

entitled to the procedures provided in the rules for reduction in

workforce.

33. The initial question to be answered, however, is which

rule governs the process used with respect to the layoffs in

2002. Petitioners argue that Rule 60K-17 must prevail because it

was the rule in effect at the time the Petitioners were notified

of the intended layoffs, citing Florida Public Employees Council

79 v. State , 921 So. 2d 676 (Fla. 1st DCA 2006)(FPEC I ). In FPEC

I , The First District held that Rule 60K-17 was repealed

January 1, 2002, by the express terms of Section 42, Chapter

2001-43, Laws of Florida, as opposed to being repealed on May 14,

2001, upon the Service First legislation becoming law. However,

a different, and controlling, result occurred in Florida Public

Employees Council 79 v. State , 939 So. 2d 121 (Fla. 1st DCA

2006)(FPEC II). In FPEC II, the court stated:

This case is remarkably similar in its facts

to those in Florida Public Employees Council

v. State , 921 So. 2d 676 (Fla. 1st DCA

2006)(FPEC I). . . . This court reversed

PERC's dismissal of the ULP for the reason

that rule 60K-17 remained operative during

the applicable time the layoffs occurred ,

which were the subject of the ULP charge. We

do not reach the same result in the present

case because at the time the reduction in the

workforce of the Department of Children and

Families took place, rule 60L-33.004 had

already become effective, with the result

that the state was no longer required to

follow the procedure controlling layoffs as

provided in rule 60K-17. [Emphasis

Supplied.]

939 So. 2d at 122. In this case, when the layoffs actually

occurred on January 4, 2002, Rule 60L-33 was in effect. The

terms of that rule control the personnel reduction in this case.

34. The Department has met its burden to show that the

layoff complied with the procedures contained in Rule 60L-33.004.

The pertinent procedures provide:

(2) Each agency shall have a Department-

approved transition plan. The goal of the

plan is to ensure that the agency makes

reasonable efforts to provide a smooth

transition for the career service employees

adversely affected by the workforce

reduction. The plan shall identify the steps

the agency will take during the workforce

reduction to advance this goal. The

following steps are reasonable and shall be

included in any plan, unless the plan

justifies in writing why they are not

included:

(a) Appoint a workforce transition team,

which is responsible for overseeing and

administering the workforce reduction.

(b) Develop a communications plan, designed

to ensure open, honest, and frequent

communication regarding staffing changes.

Provide clear avenues for employees to seek

and obtain information and assistance.

Address necessary communications with the

Department, the Agency for Workforce

Innovation, and unions.

(c) Assess the positions to be deleted and

the mission and goals of the residual program

(that is, the program area that will remain

after the deletion of functions and

positions). Identify the employees and

programs or services that will be affected by

the workforce reduction. Identify the

knowledge, skills, and abilities that

employees will need to carry out the residual

program.

(d) Assess employees.

* * *

2. If the workforce reduction affects any

other career service employee [other than law

enforcement, firefighters, or professional

health care providers], consider the

comparative merit, demonstrated skills, and

experience of each employee. In determining

which employees to retain, consider which

employees will best enable the agency to

advance its mission; in this context,

consider how each employee fares with respect

to the following factors: commitment,

excellence, fairness, honesty/integrity,

initiative, respect, and teamwork.

(3) A permanent career service employee

facing layoff as a result of a workforce

reduction shall have an opportunity for first

interview within any agency for a vacancy for

which the employee is qualified and has

applied.

(4) Before laying off a permanent career

service employee as part of a work force

reduction, an agency shall provide the

employee reasonable notice of the intended

action. Where possible, the agency shall

provide at least thirty days notice, and in

all cases the agency shall provide at least

ten days notice or, in lieu thereof, pay or a

combination of notice and pay.

35. Rule 60L-33.004 was amended in 2003. However, those

amendments affected subsection (6) only and not the provisions

quoted above and have no relevance to this proceeding.

36. The procedure used in the reduction in workforce at

issue complied with the requirements of Rule 60L-33.004. As

noted in the findings of fact, a workforce transition team was

established and a workforce transition plan was developed for

implementing the workforce reduction. The employees were

evaluated in terms of their comparative merit and the remaining

mission of the agency. Petitioners, whether or not they were

correctly identified as Career Service, were provided adequate

notice of the impending layoff and were provided the right of

first interview for job vacancies for which they were qualified,

as well as other assistance in finding employment.

37. Even assuming that Rule 60K-17 were to apply,

Petitioners could not prevail. Rule 60K-17.004(3)(q) provided

that "in the event the employee elects to appeal the action

taken, such appeal must be based upon whether the layoff was in

accordance with the provisions of this chapter." It is

undisputed that bumping rights were not accorded to any of

Petitioners. However, in order to prevail, Petitioners must show

that the layoffs were not accomplished in accordance with the

rules in force and, had they been implemented appropriately,

Petitioners would have been entitled to be retained. In other

words, it would be necessary to determine how many retention

points each Petitioner had earned and compare those points with

the retention points of other employees subject to the layoff.

Petitioners would be required to demonstrate that they held

positions, in terms of seniority, superior to those retained. No

such evidence exists in this record.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing the petitions for

relief.

DONE AND ENTERED this 5th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of February, 2009.

COPIES FURNISHED:

Jerry Gaynham, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315-4289

Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-100

Lezlie A. Griffin, Esquire

Melissa Ann Horwitz, Esquire

AFSCME Council 79

3064 Highland Oaks Terrace

Tallahassee, Florida 32301

Manny Anon, Jr., Esquire

AFSCME Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

Jennifer Parker, General Counsel

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-1300

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-1300

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.