STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNICE INO, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2098

) DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF HOTELS & RESTAURANTS, ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on January 24, 1977, at Lauderhill, Florida, before the undersigned Hearing Officer.

ISSUE PRESENTED

Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976.

This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.

FINDINGS OF FACT

1. By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I

   (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12)

   
   

2. As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2)

   
   

3. It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21)

   
   

4. Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23)

   
   

5. At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When

   Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4)

   
   

6. Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino)

   
   

7. Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 110.022, Florida Statutes, deals with transfers of state personnel as follows:

   
   

   1. Powers and duties of Department of Administration in personnel matters.--

      The Department of Administration through the Division of Personnel, shall have the following powers and duties in connection with personnel matters:

      1. to adopt and amend rules and regulations necessary to implement the purposes of

         chapter 110, which rules and regulations shall provide for:

         (h) The transfer or layoff of employees in the career service when it becomes necessary to abolish positions because of a shortage

         of funds or work or a material change in

         the duties or organization of an agency;. . .

         
         

         Section 110.061 also provides pertinently:

         
         

         110.061 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers.--

         * * *

         (2)(a) The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion or dis- missal of employees in the Career Service

         and for the investigation and hearing of appeals by the Career Service Commission on such actions.

         Section 110.042 defines the terms "position" and "transfer" as follows:

         
         

         110.042 Definitions.--

         For the purpose of this chapter and personnel affairs of the state, the following words shall have the meaning indicated:

      2. "Position" means the work, consisting of duties and responsibilities, assigned to

   be performed by an officer or employee.

   (20) "Transfer" means moving an employee from one geographic location of the state to a different geographic location in excess of

   50 miles from the employee's current work location.

   
   

9. Rules promulgated by the Department of Administration as to transfers are Rules 22A-2.10 and 22A-7.09, Florida Administrative Code, which read as follows:

   
   

   22A-2.10 Pay Upon Transfer.

   An employee who is transferred in accordance with Section 22A-7.09 shall not be granted a pay increase as a result of being transferred.

   
   

   22A-7.09 Transfer

   1. A transfer is defined as moving an em- ployee from one geographic location of the state to a different geographic location in excess of 50 miles from the employee's current work location. In determining whether or not the move is in excess of 50 miles, the distance of the move shall be the shortest route by a state secondary highway or better.

   2. Transfers shall be made in conjunction with one of the types of appointments pre- scribed in this chapter.

   3. An employee who has attained permanent status in a class shall have the right to appeal a transfer to the Career Service Com- mission, unless such action is voluntary and the employee signs a statement to that effect.

      
      

      The above rules do not prescribe any criteria for transfers other than that they shall be made in conjunction with one of the various types of appointments. The five types of appointments listed in Chapter 22A-7 are original, reinstatement, promotion, demotion, and reassignment. In Petitioner's case, the only possible type of appointment that could be applicable is a "reassignment", as described in Rule 22A-7.08. Such an appointment includes one in which an employee is moved from a position in one class to a different position in the same class.

      
      

10. Petitioner's position was not abolished, but "transferred" to another district to fill a gap caused by the elimination of positions in that district. Although the Emergency Rule of the Department of Administration concerning layoffs deals at length with the manner in which that personnel action is to be accomplished, no mention is made therein as to transfers as a result of layoffs of other employees. However, Respondent's officials acted in a fair and

    impartial manner in rearranging personnel, as a result of the legislative mandated loss of positions, by the use of retention points. It is true that any employee suffers an economic loss and personal hardship because of an involuntary transfer and the legislature recognized its adverse impact by granting appeal rights to any such action. It is desirable, of course, that state governmental employees be apprised of, and administrators required to follow any established standards for such involuntary personnel actions. For example, it would have been a simple matter to promulgate a retention point system for transfers as well as layoffs by rule. In the absence of such standards, however, and considering the fair manner in which Personnel were relocated by Respondent, it is concluded that Petitioner has no basis for a successful appeal.

    
    

11. Petitioner's contention that she was discriminated against because of her sex is not meritorious. The evidence fails to show that she was singled out for transfer because of her sex or that she was otherwise discriminated against on that basis.

RECOMMENDATION

It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

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

COPIES FURNISHED:

Lawrence D. Winson Staff Attorney

Department of Business Regulation The Capitol

Tallahassee, Florida 32304

Roger D. Haagenson

800 E. Broward Building Suite 610

Ft. Lauderdale, Florida 33301

Docket for Case No: 76-002098

Orders for Case No: 76-002098