STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILTIADES G. EVANGELAKIS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-961

) HRS, DIVISION OF MENTAL HEALTH, ) SOUTH FLORIDA STATE HOSPITAL, ) and CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above styled cause pursuant to notice on August 12, 1976 in the conference room of the district offices of the Department of Health and Rehabilitative Services, 800 West Oakland Park Boulevard, Fort Lauderdale, Florida by the duly designated Hearing Officer of the Division of Administrative Hearings, Stephen F. Dean.

APPEARANCES

For Petitioner: E. Leonard Fleet, Esquire

4001 Hollywood Boulevard

Hollywood, Florida 33021

For Respondent: Douglas E. Whitney, Esquire

HRS, Legal Services 1323 Winewood Boulevard

Tallahassee, Florida 32301 FINDINGS OF FACT

1. Dr. Evangelakis was Director of the Children's Division at South Florida State Hospital (SFSH) and was a permanent career service employee in that position in a pay class 39. Dr. Evangelakis supervised several department heads and approximately 150 professional and non-professional staff.

   
   

2. In January, 1975, Dr. Evangelakis, while serving as Director of the Children's Unit, was assigned the duty of planning the adolescent treatment program being instituted at SFSH. While performing these new duties Dr. Evangelakis was in charge of two other professionals,

   
   

3. In July, 1975, the hospital's superintendent, Dr. Diodato, having been impressed by Dr. Evangelakis' ability both as a planner and organizer, asked Dr. Evangelakis to assume the duties of Clinical Director, a position of greater responsibility than that of Director of the Children's Unit. At that time Dr. Diodato advised Dr. Evangelakis that he was going to replace him as Director of the Children's Unit. Dr. Evangelakis refused the position of Clinical Director,

   and Dr. Diodato reassigned him to the position of Psychiatrist III, Lead Worker, with duties as acting head of the adolescent unit.

   
   

4. The position of Psychiatrist III and Clinical Director both require board certification. The position of Director of the Children's Unit does not require board certification. The positions of Clinical Director, Director of the Children's Unit, and Psychiatrist III, Lead Worker, are all in pay classification 39.

   
   

5. Dr. Evangelakis is not a board certified psychiatrist, and approval of the substitution for the requirement of board certification upon his reassignment to the position of Psychiatrist III, Lead Worker, has not been obtained from the State Personnel Director.

   
   

   CONCLUSIONS OF LAW

   
   

6. "Class" is not statutorily defined, however "Class of Positions" is defined as all positions which are sufficiently similar as to kind or subject matter of work, level of difficulty in qualifications, and pay range.

   
   

7. In practice "Class" is used to describe certain positions; i.e., Attorney I, Accountant II, Psychiatrist III, which would be found in different state agencies with some variance in duties but requiring similar qualifications to perform the work assigned.

   
   

8. Dr. Evangelakis was moved from a one position class (Director of the Children's Unit) to a different position in a different class (Psychiatrist III). Both these positions are in the same pay classification, pay grade 39.

   
   

9. "Demotion" is defined as the reassignment of an employee from a position in one class to a position in another class with a lower or maximum pay and less responsibility.

   
   

10. Dr. Evangelakis' pay grade remained the same, therefore, he did not suffer a demotion.

    
    

11. Dr. Evangelakis, however, does not meet the minimum qualifications for training and experience as a Psychiatrist III because he is not board certified.

    
    

12. Section 22A-7.02 I., F.A.C. provides that no person shall be appointed to a position unless they meet the minimum required training and experience requirements except (1) when they receive an emergency appointment or

    (2) when the State Personnel Director determines that the applicant has equivalent qualifications in training or experience.

    
    

13. Dr. Evangelakis received a reassignment appointment to the position of Psychiatrist III contrary to the foregoing provision.

    
    

14. Because Dr. Evangelakis, as a permanent employee, was reassigned from one position in one class to a different position in another class, his was a reassignment appointment governed by Section 22A-7.08D., F.A.C., which required a new period of probation in the new position.

    
    

15. Section 22A-7.02F., F.A.C., provides that no employee shall obtain permanent status in a class until legally appointed in accordance with the provisions of Chapter 22A-7 and the employee has completed the required probationary period.

16. Dr. Evangelakis will not be able to obtain permanent status in his current position as a Psychiatrist III because his appointment to the position was not in accordance with the provisions of Chapter 22A-7.

    
    

17. Because Dr. Evangelakis is "illegally" serving in the position of Psychiatrist III to which he was reassigned, he is subject to removal. If Dr. Evangelakis was removed he would have appeal rights to the Career Service Commission only if the position to which he was transferred had a lower pay grade and fewer responsibilities than the class which he originally occupied, Director of the Children's Unit. (See Section 22A-10.05, F.A.C.)

    
    

18. Until some reduction of both Dr. Evangelakis' responsibilities and pay occurs, there is no "demotion", and no right of appeal. Although Dr. Evangelakis is currently subject to possible removal from his present position, until such action occurs it is not ascertainable whether Dr. Evangelakis would have a right of appeal.

    
    

19. Although the provisions of Chapter 394.55 F.S. would permit the removal of the Director of the Children's Unit only for good cause, removal from the position does not constitute a basis for an appeal to the Career Service Commission whose jurisdiction to hear appeals from personnel actions is provided in Florida Statutes, 110.061(2)(a).

    
    

20. Because the Career Service Commission's jurisdiction is statutory, and limited to, in this instance, demotions, there is no jurisdiction for the Career Service Commission to grant any relief in this case. Because the scope of jurisdiction of the Division of Administrative Hearings is limited to that of the original agency head, the Hearing Officer cannot consider the matters raised outside the Career Service Commission's statutory jurisdiction although such issues could possibly be raised in a hearing under the general authority of

120.57 between Dr. Evangelakis and the Department of Health and Rehabilitative Services.

RECOMMENDATION

The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission.

DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976.

COPIES FURNISHED:

Douglas E. Whitney, Esquire HRS, Legal Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021

Mrs. Dorothy Roberts Appeals Coordinator

Division of Personnel & Retirement Department of Administration

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-000961

Orders for Case No: 76-000961