n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERIBERTO ROMAN CONTI, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1912

)

DEPARTMENT OF CORRECTIONS, ) PAROLE AND PROBATION SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

This proceeding commenced upon the filing of a "Petition for Section 120.57(1) Formal Administrative Hearing" by Heriberto Roman Conti. The petition was filed with the Florida Department of Corrections. On July 31, 1981, the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was first scheduled to be conducted on October 28, 1981. Petitioner moved for a continuance on the grounds that there was a favorable prospect that the issues could be resolved without the necessity for a hearing. The motion was granted by order entered October 27, 1981. Thereafter, the matter remained in an inactive status. On several occasions, the parties were asked to advise the Hearing Officer as to the status of the proceeding.

Communications were rendered difficult by the Petitioner's moving to Puerto Rico and obtaining new counsel. Ultimately, the final hearing was rescheduled to be conducted on February 8, 1983.

The day before the scheduled hearing, Petitioner, through counsel in Puerto Rico, submitted a motion in which it was stated that the Petitioner would not be able to be at the hearing and asking that he be excused. A memorandum setting forth the Petitioner's position with respect to the issues was submitted along with the motion. Accordingly, an Order Cancelling Hearing was entered, and Respondent was given an opportunity to file a responsive memorandum. The response has been filed.

For the purposes of this Recommended Order, the allegations of the petition and additional allegations set out in the Petitioner's memorandum filed February 7, 1983, have been accepted as true. The Respondent denies the allegations; however, the allegations have been taken as true because it appears that the Petitioner is not entitled to the relief he seeks even if his allegations are true.

FINDINGS OF FACT

1. On or about January 16, 1981, the Petitioner began regular employment with the Probation and Parole Services, Region IV, office of the Department of Corrections. He was hired as a "Probation and Parole Officer (Trainee)."

2. On or about June 15, 1981, the Department advised Petitioner that he had been dismissed from his position with the Department. The dismissal was effective June 18, 1981. At that time, Petitioner had not yet attained permanent status in the Florida Career Service System. He was serving a probationary period. In the notice of dismissal, it was provided, as follows:

   
   

   This action is taken after careful consideration and discussion with your immediate supervisor concerning the following:

   The falsification of your employment application when applying for employment in the Miami Circuit Office of Probation and Parole Services.

   Your actions were in violation of Chapter 22A-4.03(2) of the rules of the Department of Administration of the Career Service System.

   This action is in accordance with the State of Florida Rules and Regulations of the Career Service System Chapter 22A-7.10(7)(H).

   Since you have been terminated during your trainee status, Chapter 22A- 7.03(4), Florida Personnel Rules and Regulations would apply.

   
   

   Petitioner thereafter filed his "Petition for Section 120.57(1) Formal Administrative Hearing" with the Department of Corrections.

   
   

3. In his employment application, Petitioner stated that he had never been convicted of a felony or first degree misdemeanor. On January 10, 1971, Petitioner was convicted of municipal ordinance violations in the city of Pueblo, Colorado. The violations were misdemeanors. Petitioner was fined $50 for "disturbance," and $75 for "assault and battery." He paid the fine and served one-half day in the city jail. The Department contends that on account of these convictions, Petitioner's statement in his employment application was false.

   
   

   CONCLUSIONS OF LAW

   
   

4. In his original petition, Petitioner requested that a hearing be conducted in accordance with Rule 22A-4.03(2), (5), and (6), Florida Administrative Code, to determine whether there existed "cause" to remove Petitioner from the register of persons eligible for the probation and parole officer position and that Petitioner be reinstated to his former position with all back pay and benefits. The Department filed a "Motion for Judgment on the Pleadings." The motion was granted in part and denied in part by an order entered October 6, 1981. The motion was granted with respect to Petitioner's allegations that his name had been improperly removed from the "Register of Eligibles." The motion was granted because the Department of Corrections did not have the authority to return Petitioner's name to the register and because Petitioner had a means of redressing the removal of his name from the Register of Eligibles through an appeal to the Florida Career Service Commission. The October 6, 1981, order is hereby incorporated into this Recommended Order.

5. In his original petition, Petitioner sought reinstatement to his former position with back pay and benefits. In his memorandum filed February 7, 1983, the Petitioner requested that it be determined that just cause did not exist for his being dismissed and that he be reinstated to his former position with back pay. Petitioner argues that his employment application was not falsified because the Colorado conviction did not constitute a felony or first degree misdemeanor. Petitioner also argues that the letter of dismissal from the Department was improperly vague. Petitioner's argument that he did not falsify his employment application and that the letter of dismissal was improperly vague will not be treated herein because it is concluded that Petitioner is not entitled to any hearing before the Department of Corrections.

   
   

6. In the order entered October 6, 1981, the Department's Motion for Judgment on the Pleadings was denied in part because of the allegation that the statement in the dismissal letter that Petitioner had falsified his employment application would itself have a substantial impact on Petitioner's future employability. His substantial interests were, according to the allegation, affected, entitling him to a hearing under the provisions of Section 120.57(1), Florida Statutes. It was concluded that Petitioner was entitled to a hearing to determine whether he was properly dismissed for cause, not so that he could be reinstated, but so that the statement in the dismissal letter which affects his substantial interests could be reviewed and, if found erroneous, purged. It does not now appear that the Petitioner is seeking that sort of relief. Rather, he is seeking reinstatement to his position and back pay.

   
   

7. Petitioner is not entitled to any hearing that would result in his being reinstated to his position with the Department. Florida Statutes Section 110.301, et seq., provides an avenue of appeal to the Career Service Commission by "permanent employees in the State Career Service System" who are suspended or dismissed by an agency. Petitioner was not a permanent employee of the Department of Corrections. He therefore has no entitlement to appeal a dismissal to the State Career Service Commission. The creation of a remedy for employment decisions before the Career Service Commission evidences a legislative intention to provide no remedies except those specified. Nute v. Florida Department of Law Enforcement, 397 So.2d 1222 (1 DCA Fla. 1981). The Department is not required to have any cause for dismissing an employee who has not attained permanent Career Service status, nor is the Department required to give such an employee a hearing to determine if cause existed. The Career Service Commission remedy is exclusive, and it is not available to employees who have not attained permanent status.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Corrections dismissing the petition for formal administrative hearing filed by Heriberto Roman Conti.

RECOMMENDED this 10th day of March, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1983.

COPIES FURNISHED:

Sisinio Ortiz Valentin, Esquire Puerto Rico Legal Services Corp. Box 727

Guaynabo, Puerto Rico 00657

Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Mr. Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001912

Orders for Case No: 81-001912