STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED T. WIMBERLY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-327

) CSC No. 76-08 DEPARTMENT OF HIGHWAY SAFETY AND )

MOTOR VEHICLES, DIVISION OF ) FLORIDA HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on March 3, 1976, commencing at 1:00 p.m. at the Escambia County Courthouse, in Pensacola, Florida.

APPEARANCES:

For Petitioner: Stephen E. Sutherland, Esquire

311 North Spring Street Pensacola, Florida 32501

For Respondent: Ed Strickland, Esquire

Department of Highway Safety and Motor Vehicles

Kirkman Building Tallahassee, Florida 32304

ISSUE

Whether the involuntary transfer of Trooper Fred T. Wimberly from Troop "A" in Pensacola, Escambia County, Florida to Troop "E" in Tavernier, Monroe County, Florida was a transfer for the benefit and convenience of the state.

FINDINGS OF FACT

1. Notice of hearing and objections to these proceedings, including the manner of the preservation of the record, were waived by the parties. This Hearing Officer and the Career Service Commission have jurisdiction over the parties and the subject matter of this action.

   
   

2. Florida Highway Patrol personnel rules and regulations General Order number 43 and Career Service Commission rules and regulations Chapter 22A-09(c) provide for Career Service hearings on involuntary transfers.

   
   

3. Fred T. Wimberly, Petitioner in this cause, is a Career Service Employee of the Department of Highway Safety and Motor Vehicles, Division of the

   Florida Highway Patrol. He was sent a notice of his transfer by certified mail dated January 7, 1976.

   
   

4. By Order of the Honorable Ernest E. Mason, Judge of the Circuit Court, Escambia County, said transfer as been restrained until April 15, 1976.

5, Seventy trooper positions allocated to the Florida Highway Patrol were not filled during the last fiscal year because of insufficient funds and this information was circulated by letter from Mr. Ralph Davis, Executive Director, on May 23, 1975.

1. Col. J. E. Beach, Director of the Florida Highway Patrol by memorandum July 23, 1975, informed all Florida Highway Patrol troops: "We feel it only fair that all troops share the burden rather than a few carry the entire load" and informed the troopers that the Department had decided that each troop run

   7.4 as a vacancy ratio. Troop "A" in Pensacola, Florida was to have seven (7) vacancies and Troop "E" was to have eleven (11) vacancies. On February 1, 1976, the time of the transfer of the Petitioner, Troop "A" in Pensacola had three (3) more troopers than allowed under the readjustment total of minus 7. Troop "E" had fourteen (14) less troopers beyond those readjustment figures of minus 11. Thus, Troop "A", in West Florida, had four (4) vacancies and Troop "E" in Broward, Dade and Monroe Counties had twenty-five (25) vacancies. The memorandum withheld voluntary transfers until the required ratio should be achieved.

   
   

2. At the time of a needed involuntary transfer the long standing policy of the Florida Highway Patrol, established to help keep employees more satisfied and to retain experienced troopers, has been to consider the following factors:

   
   

   1. The troop of least need

   2. Seniority

   3. Marriage factor

   4. Wife's employment

   5. Number of children

   6. Number of school children

   7. Other considerations

      
      

3. (a) It was determined by the Director of the Florida Highway Patrol that a trooper was needed in Tavernier, Florida, as an increment to Troop E. This determination was based on population need and road conditions.

   
   

   1. It was determined that Troop A was the troop statewide which could best accommodate itself to losing a trooper.

      
      

   2. The list of troopers was examined insofar as seniority was concerned and it was found that approximately fourteen (14) troopers had less seniority than Petitioner and therefore each trooper was examined, consistent with established policy, as to marriage status, children living with trooper, school age children living with trooper and wife's employment.

      
      

   3. It was found that two troopers, Petitioner and Trooper Pembroke Burrows, III, were most eligible for involuntary transfer insofar as these human factors were concerned both being single men with the approximate same seniority.

   4. It was decided that Trooper Burrows remain in Troop "A" since he is the only black trooper in the area, the other eleven (11) black troopers being located in the central and southern part of the state.

      
      

   5. It therefore appeared to the director of the Florida Highway Patrol that Trooper F.T. Wimberly should be chosen to fill the vacancy in Troop "A" and he was so notified of his transfer to be effective February 1, 1976. Said transfer was restrained until after a public hearing and until the Order of the Career Service Commission or April 15, 1976.

   
   

4. Petitioner contends:

   
   

   1. That the transfer was arbitrary and disciplinary in nature and the involuntary transfer was the result of actions in his personal life that were of no concern to the Florida Highway Patrol; that if the transfer was disciplinary it should have been so designated.

      
      

   2. That the fact of his divorce and the living arrangements he made as to room and board in the home of a woman and her two sons was under investigation by the Florida Highway Patrol prior to the involuntary transfer.

      
      

   3. That the transfer was made in total disregard to his job performance, his career status and his job seniority.

      
      

5. Respondent contends:

   
   

   1. That the involuntary transfer was for the benefit and convenience of the state and that it followed a long established policy in transferring Petitioner to a needed area.

      
      

   2. That there were several other involuntary transfers as a result of the shortage of troopers in the state, particularly the southern part of Florida, and that there must be more involuntary transfers.

      
      

   3. That each trooper signs a statement as a part of a job application which reads "I fully understand that I may be stationed anywhere in the State of Florida and may be transferred at the convenience of the department."

      
      

      That the oath taken by Trooper Wimberly states that "I will render strict obedience to my superior in the Florida Highway Patrol and observe and abide by all orders and regulations prescribed by them for the government and administration of said Patrol."

      
      

   4. That the rules, regulations and policy of the Florida Highway Patrol were followed in the involuntary transfer of Petitioner and the transfer is to a place of great need and in fact is for the benefit and convenience of the state.

      
      

   5. That had the transfer been disciplinary in nature the result would have been suspension or dismissal.

      
      

6. The Hearing Officer finds:

   
   

   1. The Florida Highway Patrol has presented substantial evidence that there is a need for a transfer to Troop "E" and that Troop "A" is a logical troop from which to withdraw a trooper and that Petitioner is not the only trooper in the state being transferred to fill the southern Florida need.

   2. The Petitioner signed a statement upon his application for employment that he understood that he might be transferred for the benefit and convenience of the state.

      
      

   3. The Florida Highway Patrol followed the established rules, regulations and policies in the involuntary transfer of Petitioner.

      
      

   4. That there were two troopers in the area who were most eligible to suffer an involuntary transfer but the reason for the determination to transfer Petitioner rather than Trooper Burrows is a valid reason.

      
      

   5. That in the field of law enforcement and for the protection of the people in the state there is a need for the Florida Highway Patrol to transfer troopers in an expeditious manner but with due regard to the individual rights of employees.

      
      

   6. That the evidence shows the human considerations were considered before Petitioner was selected to be transferred.

      
      

   7. That a determination as to whether the personal conduct of Petitioner was conduct unbecoming a police officer is not necessary for the determination of the issue.

   
   

   CONCLUSIONS OF LAW

   
   

7. Chapter 321.02, Florida Statutes, authorizes the Director of the Division of Highway Patrol to set up and promulgate rules and regulations by which the personnel of the Highway Patrol Officers shall be employed and located.

   
   

8. Chapter 22-A.09(c), F.A.C., gives an employee the right to appeal a transfer to the Career Service Commission.

   
   

9. The Florida Highway Patrol followed the statutory requirements and the rules and policies of the Department of Highway Safety and Motor Vehicles in effecting the involuntary transfer of Petitioner.

   
   

10. The Petitioner has failed to show that proper procedures were not utilized or that the transfer was unnecessary, arbitrary or punitive or that some other individual should have been transferred under the usual policies of the Department of Highway Safety and Motor Vehicles.

    
    

11. The Petitioner has failed to show that his involuntary transfer was in fact a disciplinary transfer.

RECOMMENDED ORDER

Dismiss the appeal.

DONE and ORDERED this 13th day of April, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1976.

COPIES FURNISHED:

Stephen E. Sutherland, Esquire

311 North Spring Street Pensacola, Florida 32501

Ed Strickland, Esquire Dept. of Highway Safety

and Motor Vehicles Kirkman Building Tallahassee, Florida 32304

Mrs. Dorothy Roberts Career Service Commission Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-000327

Orders for Case No: 76-000327