STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD BOATWRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2300

) Career Service #77-248 FLORIDA DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ALCOHOLIC) BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in the above-styled cause on October 20, 1978 in room 103 Collins Building, Tallahassee, Florida beginning at 9:15 a.m.

APPEARANCES

For Petitioner: Melvin Horne, Esquire

800 Barnett Bank Building Tallahassee, Florida 32301

For Respondent: Francis Bayley, Esquire

725 South Bronough Street Tallahassee, Florida 32304

ISSUE

Whether the Petitioner Donald Boatwright was properly transferred by Respondent.

FINDINGS OF FACT

1. The petitioner Donald Boatwright was a State Career Service employee employed as a Beverage Officer I by the Respondent Division of Alcoholic Beverages and Tobacco at the time he was transferred from his post of duty in Live Oak, Florida to a new post of duty in Gainesville. He was notified of his transfer by letter dated August 25, 1977. The Petitioner worked at his new post of duty in Gainesville for approximately six weeks, then resigned from State employment effective November 10, 1977.

   
   

2. The transfer of Petitioner was part of a statewide reassignment of personnel within the Division of Alcoholic Beverages and Tobacco. To accomplish the reassignment the Respondent had a statewide staffing study prepared by one of their auditors. The study revealed that the Live Oak Beverage Office had an excess of three employees in relation to the statewide average for the amount of work their office was obligated to discharge. The staffing study found that the

   Live Oak office had the second highest surplus of employees for all the division's 18 offices statewide.

   
   

3. To accomplish the directive of the Department of Administration, Division of Budget and to achieve the goal sought by the staffing study the Respondent transferred job positions and personnel from offices with a surplus to those offices the study revealed to have an insufficient number of persons for their respective workload.

   
   

4. The rationale and technique employed in the preparation of the staffing study was explained by memorandum dated March 7, 1977 addressed to the District Supervisors of the division.

   
   

5. The Respondent decided that those employees who had the least seniority in the offices to be affected would be the ones who would be transferred to those offices needing more personnel.

   
   

6. Petitioner Donald Boatwright had less seniority than other employees in the Live Oak office, and he became subject to one of the transfers.

   
   

7. Petitioner appealed to the Career Service Commission by memorandum dated October 4, 1977. The appeal was accepted by the Commission, and referred to the Division of Administrative Hearings for hearing.

   
   

8. Shortly after the appeal of the transfer was filed and accepted, the Petitioner resigned his position.

   
   

9. The parties, at the hearing, entered into a stipulation which was filed with the Hearing Officer on November 9, 1978 and which is attached hereto and made a part hereof. This stipulation details the methods by which the transfer of the Petitioner was accomplished.

   
   

10. Mr. Lee Dorn, the personnel officer for the Department of Business Regulation at the time Petitioner was transferred, reviewed a Report of Personnel Action which was entered into evidence as Respondent's Exhibit 3, and stated that the form should have designated the type of action taken as "reassignment" rather than designating the personnel action as "original appointment continued". He testified that there would have been no difference in personal impact on the Petitioner, and Petitioner would have been transferred from the Live Oak office to the Gainesville office regardless of the designation of the report.

    
    

11. The Report of Personnel Action reflects that Mr. Boatwright's transfer was in the same class. The form reflects that the position Mr. Boatwright had in Live Oak was different from the one he assumed in Gainesville, but it indicates that Mr. Boatwright moved from a position in one class to a different position in the same class.

    
    

12. Petitioner contends: (a) that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, Florida Administrative Code, (b) that the transfer from Live Oak to Gainesville caused him irreparable financial harm and hardship, and for those reasons he was forced to resign after commuting to his new post in Gainesville for a six weeks period.

    
    

13. Respondent contends: (a) that it followed the proper procedures, (b) that the Live Oak office was overstaffed prior to Mr. Boatwright's transfer, (c) a uniform system of selection was utilized by Respondent in determining who

    would be transferred statewide, (d) there is no evidence that the selection of Mr. Boatwright is based upon any other criteria than that of his being one of the junior men in the seniority system of the office to be affected.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this cause.

15. Rule 22A-7.09 Florida Administrative Code provides: 22A-7.09 Transfer.

    1. A transfer is defined as 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. 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 prescribed 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 Commission, unless such action is voluntary and the employee signs a statement to that effect.

       
       

16. The Petitioner is entitled to appeal a decision to the Career Service Commission. The testimony pertaining to hardship was admitted in evidence and considered in accordance with the foregoing rule.

    
    

17. Upon a consideration of all facts and circumstances in this cause it is determined that the transfer of Petitioner from Live Oak to Gainesville is in accordance with Rule 22A.7.08 and was in fact a reassignment appointment.

    
    

18. Competent substantial evidence was presented to show that Respondent was justified in causing the reassignment appointment transfer of the Petitioner from Live Oak to Gainesville.

RECOMMENDATION

It is recommended that the reassignment appointment transfer of the Petitioner from live Oak to Gainesville be affirmed.

DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1978.

Docket for Case No: 77-002300

Orders for Case No: 77-002300