STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON K. YON, )

)

Petitioner, )

)

vs. ) CASE NO. 76-176

) FLORIDA STATE UNIVERSITY, CAREER ) SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, on March 8, 1976 in Room 103, Collins Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. Vernon K. Yon

4106 Arklow Drive

Tallahassee, Florida 32302

For Respondent: Mr. Robert D. Bickel, Esquire

Suite 309 Westcott Building Florida State University Tallahassee, Florida 32306

ISSUES

1. Whether the Respondent's layoff of Petitioner was in compliance with Chapter 11, Florida Statutes and Chapters 22A-10 Florida Administrative Code.

   
   

2. Whether the Respondent's layoff of Petitioner should be sustained.

FINDINGS OF FACT

1. Petitioner, Vernon K. Yon, was laid off by Florida State University on June 12, 1975 and has subsequently been unemployed.

   
   

2. The layoff of Petitioner came as the direct result of the elimination of Petitioner's position, Stores Manager, Legislative Position Number 20156, from the working capital account of Respondent. The deletion of Petitioner's position and the layoff of Petitioner was approved by the Respondent's personnel director, the Chancellor of the State University System and the State Personnel Director. Petitioner was the only employee within the classification of Stores Manager in the Respondent Agency. The Agency reported to the State Personnel Director the name of Petitioner and Petitioner was placed on the appropriate State Layoff Register.

3. The Agency's funded vacant positions do not include the position of Stores Manager and the Agency has taken no action to recreate such a position or to interview or employ any individual in the position since its elimination on June 12, 1975.

   
   

4. The State Personnel Information Vacant Position Report dated January 5, 1976 showed Position Classification 0625, Stores Manager, Pay Grade 22, at Florida State University vacant. The Position Classification of Stores Manager was removed from the working capital account of the Agency but was retained in the University Auxiliary Reserve Account in the University Budget Office. Thus, the Position is subject to being re-established, and should such position be re- established, Petitioner Yon would have had first right of recall to that position if such position had been established within twelve (12) months from the date of layoff.

   
   

5. Two positions were abolished at the time that Petitioner's position was abolished - the position of Stores Manager and the Storekeeper position. There were twenty-two (22) layoffs at the time of the reorganization, some of whom went to other positions with Respondent Agency but all left the Maintenance Section in which Petitioner was employed.

   
   

6. Petitioner contends:

   
   

   1. That his position has not been abolished as required by Chapter 110, Florida Statutes; that the Respondent Agency continues to hold the Position in its Auxiliary Reserve Account; that the Department of Administration Division of Personnel Procedures of Florida Statutes 110, do not support the procedure of holding abolished positions in a Reserve Position status.

      
      

   2. The position is shown on the personnel records to be vacant.

      
      

   3. That the evidence does not show that there was a shortage of funds or a material change in the organization of the agency.

      
      

   4. That the Petitioner was not granted fully re-employment rights as to demotion or reassignment in lieu of layoff.

      
      

7. Respondent Agency contends:

   
   

   1. That the listing of Petitioner's position as "vacant" is through an error not of the Respondent Agency's making, but is a list kept by the State Personnel Director in the Department of Administration.

      
      

   2. That Respondent's prior position "Stores Manager" is not a funded position and the retention of such a position as an Auxiliary Position is a mere method or device so that a position of similar or different classification could be established in the future when working capital funds might become available to the Agency.

      
      

   3. That the Respondent Agency has deleted its sole position of Stores Manager, the position occupied by the Petitioner; that there is no intent to re-establish the position; that no funds are available for re-establishing the position and that Petitioner's layoff came as direct result of the elimination of Petitioner's position through a reorganization caused by a shortage of University funds; that a reallocation of the workload and a

      reassignment of the responsibilities to a different unit is a more efficient use of University funds.

      
      

   4. That the action of Respondent Agency is not an action based upon dismissal for cause.

      
      

   5. That all the procedural requirements were followed and the layoff

      is valid.

      
      

      The Hearing Officer further finds:

      
      

      1. That the layoff of Petitioner was a direct result of a shortage of Agency funds and a reorganization brought about as a result of an attempt to conserve Agency funds.

         
         

      2. That the layoff of Petitioner is not a disciplinary action.

         
         

      3. That the Respondent Agency has abolished the position of Stores Manager held by Petitioner.

         
         

      4. That the Respondent Agency has properly followed the requirements of the Florida Statutes and the rules promulgated thereunder.

      
      

      CONCLUSIONS OF LAW

      
      

8. This Hearing was properly held under the provision of Chapter 22A- 10.05, Florida Administrative Code.

   
   

9. The Respondent Agency followed the procedure established by the Agency as required by Chapter 22A-7.10H:

   
   

   "1. A Layoff is defined as termination of employment due to abolishment of positions necessitated by a shortage of funds or work, or a material change in the duties or organization of an agency.

   1. An employee shall be laid off without prejudice since layoff is not a disciplinary action.

   2. No employee shall be laid off except in accordance with an established layoff procedure as submitted by the agency head and approved by the State Personnel Director in accordance with the

      guidelines issued by the Secretary of Administration.

   3. Layoff shall be by class within an agency, and no employee with permanent status in the class shall be laid off while an employee who does not hold permanent status is serving in the same class in the agency.

   4. The order of layoff within each class shall be based on the total of retention points derived from performance evaluation credits and length-of-service credits earned while serving in the class.

   5. The Agency Head shall report the names of all employees who are laid off to the State Personnel Director who shall be responsible for placing the names of such employees on appropriate layoff registers as required by Section 22A-5.03(A)(3).

   6. The State Personnel Director shall prepare lists of employees who have been laid off and shall distribute such lists to appropriate agencies where persons with like skills are utilized. All agencies, shall first consider those former employees whose names appear on the layoff register for the class in which a vacancy has occurred, and no original appointment of a new employee or reinstatement appointment of a former employee shall be made to the class

      until all former employees on the layoff register have been considered.

   7. An employee who has permanent status shall have the right to appeal a layoff

   to the Career Service Commission in accordance with Section 22A-10.05."

   
   

10. The Agency has under this Chapter discretion to reorganize positions as was done in making changes in the organization of its physical plant. Such changes were a result of a shortage of funds as established by the evidence. Functions of the two positions abolished, i.e., Stores Manager and Storekeeper, were either deleted or assigned to other employees as additional duties. The position held by Petitioner was one of a class, so 22A-7.10H(4) is not applicable, although if the position had been re-established within twelve (12) months from date of layoff, Petitioner would have had the right to reclaim his position.

    
    

    The Respondent Agency promulgated the following rule:

    
    

    Chapter 22A-5.03(3):

    
    

    "Layoff Register - A register which may be used for re-employment of former employees who were laid off in accordance with Section 22A-7.10H"

    
    

    Section 110.042(24), Florida Statutes provides:

    
    

    "Layoff" means termination of employment due to abolishment of positions necessitated by a shortage of funds or work, or a material change in the duties or organization of an agency."

    
    

11. The contention of the Petitioner that the position of Stores Manager has not been abolished because it is carried on the Personnel Register as

    "vacant" is without merit inasmuch as the former duties of said position have been absorbed by other employees and the position is not funded and no applications for such position are being accepted or have been since the layoff was effected. The position of Stores Manager has effectively been deleted from the workforce of Respondent Agency.

    
    

12. The testimony and the evidence submitted show that the position held by Petitioner was abolished because of a shortage of funds and because a reorganization of the Agency affecting positions and reassignment of duties to other employees was effected to increase the efficiency of the respondent Agency.

    
    

13. The appropriateness of the procedure of respondent Agency of placing a position on an auxiliary roll to be re-established at some time in the future when funds may become available and the position needed is a point not necessary to be determined in reaching a decision in this cause.

Statutes and the rules have been properly followed.

RECOMMENDATION

Dismiss the appeal.

DONE AND ENTERED this 15th day of June, 1976 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June.

COPIES FURNISHED:

Mr. Vernon K. Yon 4105 Arklow Drive

Tallahassee, Florida 32303

Robert D. Bickel, Esquire Suite 309 Westcott Building Florida State University Tallahassee, Florida 32306

Ronald A. Mowrey, Esquire Post Office Box 3021 Tallahassee, Florida 32303

Docket for Case No: 76-000176

Orders for Case No: 76-000176