STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES SWANSON, )

)

Petitioner, )

)

vs. ) CASE NO. 76-187

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

Pursuant to notice, Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing on 11 August 1976 at Tallahassee, Florida on respondent's motion to dismiss the petition filed in the above styled cause.

APPEARANCES

For Petitioner: Ben Thompson, Jr., Esquire

836 East Lafayette Street Tallahassee, Florida 32301

For Respondent: Gene T. Sellers, Esquire

Office of General Counsel Department of Education

Suite 400 Barnett Bank Building Tallahassee, Florida 32304

RECOMMENDED ORDER

This hearing was conducted to allow the parties to present argument on respondent's motion filed 6 August 1976 to dismiss the petition filed in the above-styled case on September 22, 1975. In that petition James Swanson appealed to the Career Service Commission his demotion following a reorganization of the Department of Education in which he was demoted from Assistant Chief, Research and Information, Pay Grade 33, to a Program Director II, Pay Grade 32. After hearing arguments, stipulation of counsel and reviewing the case file, the following is submitted.

FINDINGS OF FACT

1. By letter dated 2 September 1975, the Commissioner of Education notified petitioner that, as a result of reorganization of the Department of Education he was being demoted from an Assistant Chief, Research and Information, Pay Grade 33, to a Program Director, Pay Grade 32, with no change in his salary or anniversary date.

   
   

2. On 22 September 1975 petitioner filed timely appeal with the Career Service Commission to protest this action. Thereafter the file was, transferred to the Division of Administrative Hearings, and, following several continuances, was set for hearing on 17 August 1976.

3. By letter dated July 27, 1976 directed to the Commissioner of Education, petitioner resigned from his position in the Department of Education, effective 19 August 1976 to take another position.

   
   

4. By letter of 30 July 1976 this resignation was accepted by the Commissioner.

   
   

5. Petitioner acknowledged that he had suffered no loss of pay in his demotion; and, in fact, received an increase in pay when general state-wide pay increases were approved by the legislature in 1976.

   
   

6. At the motion hearing petitioner's principal argument was directed towards his entitlement to attorney's fees in the event the hearing was held and he was successful in proving he had been wrongfully demoted.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 110.061, F.S., provides in pertinent part:

   
   

   "(3) The Career Service Commission may order the rein- statement of an employee, with or without backpay, which order shall be conclusive on the agency or officer concerned. The order may include an amount

   to be determined by the commission and paid by

   the agency, for reasonable attorney's fees . . . [and other expenses] incurred during the prosecution of an appeal against an agency in which the commission sustains the employee."

   
   

8. The authority to award attorney's fees to successful petitioners is discretionary with the commission.

   
   

9. Personnel Regulations relating to separations of employees are contained in Chapter 22A, F.A.C. Part 22A-7.10A, F.A.C., under Resignations provides in pertinent part:

   
   

   "Any employee who submits a written resignation shall not have the right of appeal to the Career Service Commission."

   
   

10. Accordingly, the questions here presented are (1) whether by virtue of his resignation from the position held the petitioner has rendered moot his appeal and (2) if not, whether such resignation terminated his right of appeal as provided by the regulation above quoted.

    
    

11. By his resignation the petitioner has severed his connection with the Department of Education and any subsequent appointment to a position in that Department is considered as an original appointment, (22A-7.03, F.A.C.) and if reappointed, he would assume the status provided for such appointees. Before he could be appointed to the reclassified position he appears to seek, all former employees whose names appear on the layoff register must first be considered for reemployment. Ibid.

    
    

12. Since petitioner has suffered no loss of pay as a result of his demotion and has resigned from the Department, any further action on his appeal would be moot. By specifically eliminating the right to appeal following the

    submission of a written resignation, the personnel rule cited above appears to recognize this fact.

    
    

13. With respect to petitioner's position regarding attorney's fee, it is noted that there is no absolute right to attorney's fees even if the commission rules against the agency; therefore any conclusion respecting the awarding of attorney's fees at this stage of the proceedings would be pure speculation.

From the foregoing it is concluded that by his resignation petitioner has abandoned his right to appeal the demotion to which he was subjected. It is therefore

Recommended that the petition be dismissed.

DONE and ENTERED this 11th day of August, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Gene T. Sellers, Esquire Department of Education

400 Barnett Bank Building Tallahassee, Florida 32304

Ben W. Thompson, Jr., Esquire 836 East Lafayette Street Tallahassee, Florida

Mr. James R. Swanson, Jr. 2312 Domingo Drive Tallahassee, Florida

Mrs. Dorothy Roberts Appeals Coordinator

Division of Personnel and Retirement Department of Administration

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-000187

Orders for Case No: 76-000187