STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES E. COFLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 76-955

)

DEPARTMENT OF COMMERCE AND )

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in this matter on August 11, 1976 in Room 103, Collins Building, Tallahassee, Florida. This case arose from the appeal of Charles E. Coflin of his demotion by the Florida State Department of Commerce to the Career Service Commission. This matter was referred by the Career Service Commission to the Division of Administrative Hearings to conduct a formal hearing to determine whether the demotion was for cause and in accordance with the applicable rules and regulations.

APPEARANCES

For Petitioner: Brian Duffy, Esquire

Post Office Box 1170 Tallahassee, Florida 32302

For Respondent: Kenneth H. Hart, Jr., Esquire

401 Collins Building Tallahassee, Florida 32304

FINDINGS OF FACT

1. Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position.

   
   

2. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975.

   
   

3. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy.

   
   

4. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another

   area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area.

   
   

5. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted.

   
   

6. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average.

   
   

7. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Department of Commerce guidelines were based upon the Rules and Regulations of the Division of Personnel, specifically 22A-7.10 (H)(3), F.A.C.

   
   

9. The legality of similar guidelines was earlier considered in the case of Stevens vs Health and Rehabilitative Services, 76-2024, in which a Hearing Officer of this Division concluded as a matter of law that such guidelines are rules, and as such, they had not been legally adopted as required by Chapter 120, Florida Statutes.

   
   

10. Because a Career Service employee can only be demoted for good cause (Section 110.061(2)(a), Florida statutes), and the basis for demotion was the invalid "rules", Coflin was wrongfully demoted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause.

DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976.

COPIES FURNISHED:

Mrs. Dorothy Roberts Appeals Coordinator

Division of Personnel and Retirement Department of Administration

530 Carlton Building

Docket for Case No: 76-000955

Orders for Case No: 76-000955