STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY GIBSON, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1452RX

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 13, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Shirley Gibson, pro se

7871-55 Way North

Pinellas Park, Florida 33565

For Respondent: Daniel C. Brown, Esquire

435 Carlton Building Tallahassee, Florida 32301

BACKGROUND

On May 11, 1983, Petitioner, Shirley Gibson, filed a petition with the Division of Administrative Hearings challenging the validity of Rule 22A- 2.07(1)(c), Florida Administrative Code. That rule generally prohibits a promotional increase in pay to a state employee who has been demoted to a lower class and is subsequently promoted within six months from date of the demotion and whose salary at the time of the promotion is above the minimum for the class to which the employee is promoted. In brief, Petitioner alleged Respondent, Department of Administration, exceeded the legislative authority delegated to it by Section 110.209, Florida Statutes, by using an "arbitrary and capricious 6 month length of time" in applying the prohibition, and that the rule was "discriminatory" because it did not "distinguish a substantial pay grade increase from a one pay grade increase in its application."

On May 9, 1983, the petition was found to comply with the requirements of Section 120.56, Florida Statutes, and was assigned to the undersigned hearing officer to conduct a formal hearing. By notice of hearing the final hearing was scheduled for June 13, 1983, in Tallahassee, Florida.

At the final hearing Petitioner testified on her own behalf and presented the testimony of Milton Sumrell, personnel management administrator of the Department of Health and Rehabilitative Services. Respondent presented the

testimony of Ada G. Blount, chief of its bureau of human management, and offered Respondent's Exhibit 1 which was received in evidence.

There was no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were filed by Respondent on June 21, 1983, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Rule 22A-2.07(1)(c), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

Based upon all of the evidence, the following Findings of Fact are determined:

FINDINGS OF FACT

1. Petitioner, Shirley Gibson, is a permanent status employee of the Department of Health and Rehabilitative Services (HRS) in Clearwater, Florida. She has been employed by HRS for over five years.

   
   

2. On June 19, 1982, Petitioner took a voluntary demotion from the position of clerk typist III (pay grade 07) to secretary II (pay grade 06). The demotion appointment was properly made with permanent status, and she retained her full salary of $403.82 biweekly.

   
   

3. On August 27, 1982, Gibson was promoted to the position of personnel aide (bay grade 10). In conjunction with her promotion she received a ten percent promotional increase which raised her salary to $442.52 biweekly. The minimum pay grade for the personnel aide class at that time was $396.80. Therefore, at the time of promotion, Gibson's salary exceeded the minimum salary for the class to which she was promoted.

   
   

4. On September 1, 1982, Petitioner received the seven percent pay increase granted all state employees. This pay adjustment raised her compensation to $473.50 biweekly.

   
   

5. In February, 1983 Respondent, Department of Administration (DOA), completed a comprehensive personnel program review whose purpose was to ensure that the overall administration of HRS's personnel program in Clearwater was in compliance with the Respondent's personnel rules. During the course of that review Gibson's personnel file was randomly selected for inspection, and the promotional increase given on August 27, 1982, was found to be in violation of Rule 22A-2.07(1)(c), Florida Administrative Code. The Department concluded that based upon the provisions of the rule, Petitioner's salary should have remained at $403.82 since she was ineligible for a promotional increase on August 27. Thereafter, it directed that her biweekly salary be reduced to $432.09 1/ effective April 8, 1983, and that she refund the difference ($561.91) between that amount and the $473.40 biweekly pay she received for the period August 27, 1982, through April 7, 1983. This refund is to be accomplished by payroll deductions from Gibson's salary over eight pay periods.

   
   

6. On May 11, 1983, Petitioner filed a petition to have Rule 22A- 2.07(1)(c) declared invalid, and the entry of an order requiring the comptroller to refund all funds paid on the alleged overpayment of $561.91.

7. Rule 22A-2.07, Florida Administrative Code, generally relates to the pay plan for career service employees. Subpara-graph (1)(c) thereof provides generally that once an employee is demoted without a reduction in salary, and is subsequently promoted within six months, he or she is not eligible for a promotional increase unless the salary is below the minimum for the class to which the employee is promoted. The purpose of this provision is to ensure that demotions and promotions are not artificially created to give salary increases not authorized in other parts of the personnel rules.

   
   

8. Petitioner contends the rule is unfair and discriminatory because it does not distinguish between multi-step and single step promotions in its application. She also contended that HRS had given promotional increases to several other individuals in the past under similar circumstances. This was confirmed by a representative of HRS who noted that such increases had indeed been given until DOA had advised it was incorrect.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.56, Florida Statutes.

   
   

10. Subsection 110.209(1), Florida Statutes, provides that:

    
    

    1. The Department shall establish and maintain an equitable pay plan applicable to all classes of positions in the career service and shall be responsible for

       the overall review, coordination, and administration of the pay plan.

       
       

       In conjunction with the development of an equitable pay plan, the Department has been authorized to adopt rules which should be used in the administration of the pay plan. Subsection 110.217(6), Florida Statutes, provides in relevant part that:

       
       

       1. The Department shall have the respon- sibility for the adoption of rules regarding demotion (and) promotion.

          
          

          In accordance with the foregoing statute, Respondent has promulgated Rule 22A- 2.07(1)(c), Florida Administrative Code. That rule provides as follows:

          
          

          1. An employee who has attained permanent status in a class may be demoted with or without a reduction in pay, at the discre- tion of the agency head, subject to the following provisions:

             
             

       2. When the salary is not reduced and the employee is subsequently promoted within 6 months from the date of demotion, the employee shall not be eligible for a pro- optional increase unless the salary at the time of promotion is below the minimum for the class to which the employee is promoted.

       Gibson cites two grounds in support of her petition. First, she alleges that the six month time period in the rule is arbitrary and capricious and far exceeds the legislative authority delegated to Respondent by Section 110.209, Florida Statutes. She also contends the rule is discriminatory "in that it does not distinguish a substantial pay grade increase from a one pay grade increase in its application." 2/

       
       

11. As Petitioner in this cause, Gibson has the burden of proving that the rule in question is invalid. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, (Fla. 1st DCA 1978). In Agrico, the Court characterized this burden as being "a stringent one indeed," particularly where, as here, it is alleged the rule is arbitrary and capricious. Id. 365 So.2d at 763.

    
    

12. The broad issue herein is whether Respondent has exceeded the authority granted by the enabling legislation when enacting the rule in question. Subsection 110.209(1) requires the Department to "establish and maintain an equitable pay plan applicable to all classes of positions in the career service" and to be responsible for the overall . . . administration of the pay plan." To this end, the Department has been instructed by Subsection 110.217(6) to adopt rules relating to, among other things, the promotion and demotion of career service employees. The rule itself provides pay guidelines to be followed by agencies when demoting and promoting permanent status employees. As such, it is clear that the rule is consonant with the broad statutory grant of authority reposed within the Department. Moreover, its requirements are reasonably related to the legislative purpose and appropriate to the ends specified in the legislative act. This being so, it is concluded that Rule 22A- 2.07(1)(c) is encompassed within the grant of authority contained in Subsection 110.209(1).

    
    

13. Petitioner also contends the rule is arbitrary and capricious. An arbitrary decision has been defined as "one not supported by facts or logic, or despotic." Agrico, 365 So.2d at 763. A capricious action is "one taken without thought or reason or irrationally." Id., 365 So.2d at 763. Petitioner failed to present any evidence whatsoever to demonstrate that the six month time period incorporated in the rule is "not supported by facts or logic," or that the use of such a timeframe was "without thought or reason." In contrast, Respondent has shown a salutory purpose in this provision, that being to insure that agencies do not artificially create demotions and promotions to give salary raises not otherwise authorized by the personnel rules. Accordingly, there being no evidence to support the contention that the rule is arbitrary or capricious, that portion of the petition must fail. Agrico.

    
    

14. Petitioner finally contends the ,rule is discriminatory since it applies to all pay grade increases, and not just those involving a promotion to the employee's original pay grade prior to the demotion. However, she presented no evidence or authority to support this contention, and it is concluded that no "discrimination" has been shown.

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition to have Rule 22A-2.07(1)(c) Florida

Administrative Code, declared an invalid exercise of delegated legislative authority is DENIED.

DONE and RECOMMENDED this 28th day of June, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983.

ENDNOTES

1/ This salary represents the $403.82 biweekly pay after

the seven percent across-the-board pay increase was applied to that amount.

2/ Parenthetically it is noted that Petitioner elected to

file a rule challenge vis a vis a 120.57 proceeding to contest the state's attempts to recover salary overpayments. The latter course of action is suggested as the proper remedy in Department of Corrections v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983) Whether she was given a clear point of entry into an administrative proceeding, and if so, has waived that right through her election of remedies need not be reached.

COPIES FURNISHED:

Ms. Shirley Gibson 7871-55 Way North

Pinellas Park, Florida 33565

Daniel C. Brown, Esquire

435 Carlton Building Tallahassee, Florida 32301

Carroll Webb, Esquire

Joint Administrative Procedures Committee

Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Docket for Case No: 83-001452RX

Orders for Case No: 83-001452RX