STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE ANN BURGESS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-135

) FLORIDA DEPARTMENT OF COMMERCE ) and FLORIDA DEPARTMENT OF )

ADMINISTRATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 7 and 8, 1982, in Tallahassee, Florida. The issue for determination at the hearing was whether position number 00063 (formerly entitled Domestic Tourism Administrator, Division of Tourism; now entitled Domestic Sales Administrator, Division of Tourism) is a policy-making position eligible for exemption from the Career Service System.

APPEARANCES

For Petitioner: Edward S. Jaffry

Horne, Rhodes, Jaffry, Horne and Carrouth Post Office Drawer 1140

Tallahassee, Florida 32302

For Respondent Don W. Davis, General Counsel Department of 510-H Collins Building Commerce: Tallahassee, Florida 32301

For Respondent David V. Kerns, General Counsel (former) Department of 435 Carlton Building

Administration: Tallahassee, Florida 32301

INTRODUCTION

The instant proceeding has a lengthy procedural history which culminated in a decision of the District Court of Appeal, First District, reversing the denial of the petitioner's request for a hearing, Burgess v. Department of Commerce and Department of Administration, 400 So.2d 1258 (Fla. 1st DCA, 1981), and the referral of the cause to the Division of Administrative Hearings by the Secretary of the Department of Commerce.

At the hearing, the petitioner testified and also presented the testimony of Carolyn Coleman, formerly with the Bureau of Human Resource Management Improvement, Department of Administration (DOA); Richard Davis, the Personnel Manager, Department of Commerce (DOC); Edward J. Trombetta, the former Secretary

of the DOC; Otto M. Stroud, a former Research Administrator with the DOC; and Lee Breyer, who was accepted as an expert witness in the fields of personnel management and administration. Petitioner's Exhibits 1 through 7, 9 through 12,

15 through 18, and 23 were received into evidence.

The DOA presented the testimony of Nevin Smith, the Secretary of DOA, and Ada Blount, the Bureau Chief of Human Resource Management and Improvement for DOA. The DOC presented the testimony of Sidney Levin, the DOC's former Secretary; Edward Gilbert, the Director of the DOC's Division of Tourism; Ronald Miller, the DOC's Bureau Chief of Sales and Promotion, Division of Tourism, and Glenn Couvillon, the Administrator of the Domestic Sales Section of the DOC's Division of Tourism. The DOC's Exhibit 3 was received into evidence, as were Joint Exhibits 1 and 2.

Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, immaterial or irrelevant to the issues presented for determination or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner Lee Ann Burgess was employed on March 17, 1975, as the Administrator of the Domestic Tourism Section, Division of Tourism, Department of Commerce. During her initial years of employment, Edward J. Trombetta was the Secretary of the DOC. He remained in that position from February of 1975 through December 31, 1977. The DOC then had several Divisions--one of which was the Division of Tourism--and these Divisions were broken down into Bureaus which were, in turn, composed of various Sections. Mr. Trombetta was of the opinion that only himself, his Assistant Secretary and his Division Directors were policy-makers within the DOC and that other employees simply implemented that policy. According to Mr. Trombetta, policy-making deals with personnel matters and implementation of the budget appropriated by the Legislature. Decision- making and policy-making emanated from the Secretary's office. While the Section heads or administrators might recommend ideas which would lead to "policy," they had no authority to "establish" the course of policy for their respective Divisions or Sections, according to Mr. Trombetta.

   
   

2. The December, 1976 job description for the position of Administrator of the Domestic Tourism Section included, in part, the following duties and responsibilities:

   
   

   -- being a working supervisor over a majority of the promotional activities of the division

   -- creating, directing and supervising the approved promotional and selected advertising programs.

   "He must not only plan the programs, he must budget each one as well as

   the entire Domestic Development Section."

   -- recommending new markets and objectives to the Division Director and advising

   on all aspects of promotion, utilizing research statistical information to support such recommendations and advice

   -- directing a staff of promotion specialists

   -- maintaining a constant contact with the higher echelons of the Department of Commerce as well as other government agencies and the private sector of the travel industry

   -- handling personnel both within the confines of the office and those that are required

   to be at great distances from the office in following through on the projects

   -- working with publishers of travel oriented publications in creation

   of special sections and issues on facets of Florida tourism

   -- initiating and carrying through promotions with department stores, other chain stores, industry, common carriers, resort areas and many others

   -- recommending and coordinating publicity in conjunction with the other areas of

   the Department of Commerce

   -- representing the Division at conferences of national, regional travel organi- zations

   -- creating and implementing special events which insure Florida's continued growth

   as a site for major sports activities

   -- developing and recommending advertising programs which illuminate Florida's

   sports attractions

   -- preparing, editing and distributing publications on promotional tourism activities and information on sports activities and facilities within Florida.

   
   

3. During petitioner's tenure as Administrator of the Domestic Tourism Section, she was directly responsible to her Bureau Chief, Ron Miller. At the beginning of each fiscal year, she submitted for Mr. Miller's approval a listing of appropriate functions and trade shows to attend for that year. She submitted a requested budget. On occasion, Mr. Miller would discuss with her which projects or functions would need to be rejected because of the availability of funding. All promotional functions and long-term commitments had to be approved by Bureau Chief Miller. Petitioner could not expend money without prior approval and did not feel that she had the authority to commit funds, resources or time without prior approval from her Bureau Chief. She perceived that her authority was limited to the implementation of preapproved promotional programs and functions. Once a program was approved, it was her responsibility to create a theme for that program. Her decision as to who should attend certain programs or promotions was occasionally overridden by her Bureau Chief. During petitioner's tenure, the Domestic Tourism Section was composed of an administrator, a secretary and two promotional specialists, and conducted approximately 19 to 21 promotions per year.

4. The goal of the DOC's Division of Tourism is to increase the number of visitors and to create more trade in Florida on an annual basis. When Sidney Levin became the Secretary of the DOC in March of 1979, he contemplated a reorganization and expansion of the Division of Tourism. He anticipated that the Division would obtain a greatly increased staff and an accelerated program in the tourism sales department. It was Mr. Levin's concept that, the three section heads were, as known in the business world, "sales managers" and that an extensive marketing plan would be developed for the Division of Tourism. The three "sales managers or section heads were to be in the areas of domestic sales, international sales and convention sales. (Later, a Latin American sales section was created.) The persons occupying these positions were responsible for the management of those sections and were to be active in the creation of a marketing plan for the entire Division. The majority of the work accomplished on the marketing plan was to come from the various sections, and the section heads would have the responsibility for that function. The section heads were to generate the ideas for the overall plan, to determine what was possible and what was not possible and then to implement the plan once approved.

   
   

5. During Secretary Levin's tenure with the DOC, the head of each Department was permitted to designate ten "policy-making" positions as exempt from the Career Service System subject to the approval of the Department of Administration. Section 110.205(2)(h), Florida Statutes (1979) (now Section 110.205(2)(i)). In accordance with his reorganization and expansion plans for the Division of Tourism, Secretary Levin, by letter dated December 12, 1979, requested approval from Secretary Nevin Smith. DOA, to exempt from the Career Service System the positions of Administrator of Tourism Development (position number 00063) and Administrator of International Tourism (position number 00067). Two other positions not relevant to the issues herein were also requested to be exempt as policy-making positions. By letter dated December 14, 1979, Secretary Smith informed Secretary Levin that the four requested positions had been exempt from the Career Service as policy-making positions. [The convention sales section of the Division of Tourism was not yet created. When that position was later created, a request for a similar Career Service exemption was granted.]

   
   

6. At the time of the requested exemption of petitioner's position, the only written guideline in existence as to a "policy-making" position was contained in a memorandum dated July 1, 1974, to all Department heads from former DOA Secretary L. K. Ireland, Jr. That memorandum states that the DOA's Division of Personnel defined a policy-making position as

   
   

   one which sets a definite course of action for the unit for which the position is responsible (i.e., office, bureau, division, department) which is unit-wide in effect

   and will guide and determine present and future decisions of that unit measured in a time span of no less than six months.

   
   

   Although not contained in written form in December of 1979, it was also the DOA's policy to refuse to approve exemptions for positions which directly reported to or were responsible to a position occupied by a Career Service employee.

   
   

7. The position formerly occupied by petitioner (position number 00063) is now entitled Administrator of Domestic Sales of the Division of Tourism. The present incumbent, Glenn Couvillon, reports to the Bureau Chief of Sales and

   Promotions who reports to the Director of the Division of Tourism. Mr. Couvillon was formerly a promotional specialist under the supervision of petitioner Burgess. His present duties include the preparation and submission of a marketing plan for his section to his Bureau Chief for approval and, after such approval, the implementation and staffing of different promotions in that plan. Other than the enlargement of the Domestic Sales Section, and the expansion of its budget and programs, Mr. Couvillon does not feel that the role of the section administrator has changed much since he assumed that position.

   The Domestic Sales Section now has a staff of eleven, including seven Development Representatives, and does approximately 54 promotions a year. The 1980 job description for position number 00063 does not differ in significant respect from the 1976 job description for that position. The differences are primarily in the usage of terminology, and not in the description of duties or responsibilities.

   
   

8. According to Nevin Smith, the Secretary of DOA since July of 1979, the principal criteria for determining whether a position is "policy-making" has always been the same. That criteria is whether or not the position-holder plays a key advisory role to the Department head. An expert in the area of personnel management and administration, Lee Breyer, defines a "policy-maker" as "an individual who can, with a high degree of success, be able to influence the direction of a particular level of that organization." In February of 1981, the DOA promulgated a rule which defines the policies applicable to exemption of policy-making positions. Rule 22K-16.02, Florida Administrative Code, provides as follows:

   
   

   1. A position is policy-making if the incumbent's primary responsibility is the managing of a major function or the rendering of management advice to Senior Management level administrative authority.

   2. Such position can be established as policy-making only if located in the top managerial levels of a department, division, or bureau (or comparable level) and if it is typified by broad responsibility for policy implementation and extensive participation in the development of a department's goals.

      
      

      CONCLUSIONS OF LAW

      
      

9. The issue in this proceeding is whether position number 00063 within the Department of Commerce was, at the time of the requested exemption, a policy-making position, eligible for exemption from the Career Service System. Facts and events occurring subsequent to the petitioner's vacation of that position, and rules promulgated thereafter, are relevant only to illustrate or substantiate the testimony regarding the DOC's intent in seeking the exemption and the DOA's long-standing policy in reaching determinations with respect to exemptions for policy-making positions. It is further concluded that it is the intent of the agency head with regard to the organization of his/her department, and the actual implementation of that intent, which is determinative of an inquiry as to whether a particular position is a "policy-making" position. The incumbent's (or even the incumbent's superior's) personality and method of carrying out his job responsibilities and duties are, at best, secondary to the inquiry of whether a position itself is a policy-making position.

10. The evidence in this proceeding illustrates that at the time petitioner was employed as the Administrator of the Domestic Tourism Section of the Division of Tourism, the agency head was of the opinion that the actual making of policy for the DOC, as confined by the budget appropriated by the Legislature, was to be dictated by the Office of the Secretary down through the Division Directors. In his opinion, policy-making was comprised of personnel matters and implementation of the lump-sum budget passed by the Legislature. Decision-making and policy were set forth at the Secretary level.

    
    

11. When a new Secretary took office, it was his intent to reorganize the Department of Commerce with emphasis upon an increased staff and accelerated program in tourism sales. He envisioned his section heads as "sales managers" responsible for creating desirable programs, having direct input into an overall marketing plan and then implementing the final approved plan. It is obvious that Mr. Levin intended to rely upon the section heads of the Sales and Promotions Bureau, Division of Tourism, as key advisors who would influence the general direction of the DOC's role of attracting tourists and trade to Florida. The fact that policy recommendations by the section heads could be overridden by the Bureau Chief, the Division Director, or the Secretary does not negate the fact that the Department's Organizational structure and the intentions of the agency head were such that the petitioner's prior position, as well as three others of the same general nature, was a policy-making position. It has never been intended that an incumbent of a "policy-making" position would have absolute independent and ultimate authority to shape, promulgate and implement the policy of the agency. This is evident from the 1974 Ireland memorandum, the testimony of the Secretary of DOA, the testimony of the petitioner's expert witness and the terms of Rule 22K-16.02, Florida Administrative Code, which constitutes a promulgated statement of the DOA's position with respect to

    policy-making positions.

    
    

12. The undersigned has considered the petitioner's contention that, in its original December 12, 1979, request for an exemption of several positions, the Secretary of the DOC failed to provide a statement as to bow the position fits the definition of a policy-making position. A requirement to this effect was contained in the July 1, 1974 Ireland memorandum directed to all Department heads. It is concluded that, standing by itself, failure to comply with this procedural requirement (which was not at the time embodied in rule form), is not sufficient to vitiate the request for exemption approval. The administrative hearing process provided the avenue for the Department of Commerce to fully explicate and adjudicate its reasons for seeking exemption status of the petitioner's position. While the existence of a statement from the DOC as to how the position is a "policy-making" one may be relevant to the issue of whether the DOA properly and timely approved the exemption, it is not determinative of the prime issue in this proceeding; to wit: is the position a policy-making position eligible for exemption?

    
    

13. In summary, the evidence adduced at the hearing establishes that the position occupied by the petitioner at the time of the requested exemption was, and is now, a policy-making position eligible for exemption from the Career Service System. The role of the individual who holds position number 00063 is to act as a key advisor to the agency head, to influence the direction of domestic sales, to set a definite course of action which will guide and determine the present and future decisions of that Section and to have broad responsibility for developing and implementing the Section's and the Department's goals.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that position number 00063 is a policy-making position eligible for exemption from the Career Service System in accordance with Section 110.205(2)(i), Florida Statutes.

Respectfully submitted and entered this 16th day of September, 1982, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

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 16th day of September, 1982.

COPIES FURNISHED:

Edward S. Jaffry, Esquire HORNE, REODES, JAFFRY, HORNE & CARROUTH

Post Office Drawer 1140 Tallahassee, Florida 32302

Don W. Davis, Esquire Department of Commerce 510H Collins Building

Tallahassee, Florida 32301

David V Kerns and

Daniel C. Brown, General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Stuart Edgerly Secretary

Department of Commerce 510C Collins Building Tallahassee, Florida 32301

Nevin G. Smith Secretary

Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-000135

Orders for Case No: 82-000135