DAY QAYO. GervDe STATE OF FLORIDA mi 1 emee DEPARTMENT OF CHILDREN AND FAMILY SERVI¢ a on = g Ge ELIZABETH A. SUMMERS, v a Zz" Petitioner, CASENO. vu4#z178SED v. RENDITION NO. DCF:05- 11 -Fo DEPARTMENT OF CHILDREN AND FAMILY SERVICES FILED Respondent. ; OcT 05 2005 FINAL orpeROC® Department Clerk THIS CAUSE is before me for entry of a Final Order concerning petitioner's request for a hearing on the reclassification of a position from Career Service to Select Exempt Service. The Recommended Order of Dismissal concludes that petitioner is not entitled to an administrative proceeding to contest the reclassification. Petitioner filed an exception to the Recommended Order of Dismissal, which is rejected for the reasons set forth below. The Recommended Order of Dismissal is approved and adopted. In Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1% DCA 2003), the court held that Career Service employees who occupy positions that are reclassified to Select Exempt Service have the right to an administrative proceeding challenging the propriety of the reclassification. In this case, the administrative law judge (ALJ) concluded that, because petitioner accepted employment in a Select Exempt Service position after it had already been reclassified, Reinshuttle does not require that petitioner be afforded an administrative proceeding concerning the prior reclassification of her position. Petitioner's exception to the Recommended Order of Dismissal argues, in essence, that because petitioner ultimately was impacted by the reclassification of the position in question, petitioner has standing to pursue an administrative proceeding to challenge the reclassification, regardless of when it occurred. Petitioner's reasoning is flawed. It is well-settled under chapter 120, Florida Statutes, that, when an agency acts ina manner that affects an individual's substantial interests, the agency must notify the individual of the action and afford the individual a point of entry into an administrative proceeding to contest it. See §120.569, Florida Statutes; see, e.g., Gopman v. Department of Education, 908 So. 2d 1118 (Fla. 1 DCA 1988); Patz v. Department of Health, 864 So. 2d 79 (Fla. 3d DCA 2003). An individual's substantial interests are affected, however, only if the alleged injury resulting from the agency action is sufficiently “immediate”. See, e.g., Ameristeel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997); International Jai-Alai Players Ass'n. v. Florida Pari-Mutuel Comm'n., 561 So. 2d 1224 (Fla. 3d DCA 1990); Agrico Chemical Co. v. DER, 406 So. 2d 478 (Fla. 2d DCA 1981). Petitioner was not employed in the instant position at the time it was reclassified. Petitioner had no interest in maintaining that position as a Career Service position at the time of the reclassification. It necessarily follows, then, that the reclassification did not affect petitioner's substantial interests for purposes of establishing standing pursuant to sections 120.569 and 120.57, Florida Statutes. See Burgess v. Department of Commerce, 400 So. 2d 1258 (Fla. 1" DCA 1981). The cases petitioner cites do not support the notion that petitioner has standing to challenge the reclassification decision in this case. Burgess is indistinguishable from Reinshuttle on the critical factor that the Burgess court concluded that the petitioner there entitled to an administrative proceeding to challenge the validity of the reclassification of a Career Service position because petitioner occupied the position at the time it was reclassified to Select Exempt Service. Narkier v. Department of Health and Rehab. Serv., w 636 So. 2d 193 (Fla. 1 DCA 1994), and Department of Military Affairs v. Griffin, 530 So. 2d 1029 (Fla. 1* DCA 1988), are entirely dissimilar from the instant case and are of no assistance to petitioner's position. In those cases, the court ruled that the Public Employees Relations Commission improperly reached fact-specific jurisdictional determinations without affording the parties the opportunity to present evidence necessary to decide the question. Here, the facts salient to the standing decision are undisputed: petitioner accepted employment in a position that had already been reclassified from Career Service to Select Exempt Service before petitioner took the position; petitioner was dismissed from that position in accordance with the procedures applicable for Select Exempt Service; petitioner then attempted to challenge the position’s reclassification approximately two years after the position was reclassified. These facts mandate the result reached by the ALJ. Finally, petitioner argues that “either an Agency or an employee may challenge the nature of the employment and whether the position at issue is that which should be in the Career Service System or not”. Assuming arquendo that is true, that is not what petitioner seeks to do in this case. Petitioner, while stil! employed, could have requested that the Department reclassify the position from Select Exempt Service to Career Service. If the Department rejected that request, petitioner may have been afforded an administrative proceeding at which the propriety of her position’s classification would have been at issue. That is not the same thing as asserting standing to challenge a prior agency action that did not affect petitioner's substantial interests within the meaning of chapter 120, Florida Statutes. 3 Accordingly, petitioner's request for an administrative proceeding is hereby DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this & day of octobe c , 2005. Don T. Winstead, Deputy Secretary Department of Children and Family Services RIGHT TO APPEAL A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, IN THE FIRST DISTRICT COURT OF APPEAL OR IN THE DISTRICT COURT OF APPEAL WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: R. Wayne Evans Ben R. Patterson Allen, Norton & Blue Patterson & Traynham 906 N. Monroe St., Suite 100 315 Beard Street Tallahassee, FL 32303-6143 P.O. Box 4289 COUNSEL FOR DEPARTMENT Tallahassee, FL 32315-4289 COUNSEL FOR PETITIONER CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above-named individuals at the listed addresses, by U.S. Mail, this day of Ctahe se, 2005. en and Family Services

Docket for Case No: 04-002178SED