RICHARD F. MARSH, )
vs. ) CASE NO. 76-2005
Respondent. )
This matter came on for Hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 28, 1977. The parties appeared through counsel, as follows:
For Petitioner: Mr. Jay Hendrickson, Esquire
For Respondent: Mr. Robert A. Chastain, Esquire
By letter dated June 16, 1976, Mr. C. Douglas Shelby advised petitioner, on behalf of respondent, that the legislature had abolished the position which petitioner held and that respondent would take action in accordance with Emergency Rule 22 AER 76-1 of the Department of Administration, which sets forth certain layoff procedures. Petitioner in the present case unsuccessfully challenged the validity of Emergency Rule 22 AER 76-1, in a separate proceeding. Marsh v. Department of Administration, No. 77-404R (DOAH; April 25, 1977). By stipulation of the parties, the issues at the final hearing in this case were limited to whether Emergency Rule 22 AER 76-1 was properly applied to petitioner, and the rule was presumed valid for purposes of the hearing.
For more than 20 years, petitioner has worked as a state employee in law enforcement or as a teacher of persons' training for law enforcement work. From November of 1955 until September of 1976, he was employed as a special agent by the Florida Sheriffs' Bureau. From October of 1965 to March of 1972, he taught at Florida State University, first as an instructor in criminology, then as an assistant professor. On March 20, 1972, petitioner began working for respondent, in its Division of Animal Industry, as an agricultural investigator supervisor in the livestock theft program. Six months later petitioner attained career service status in this position, which has position number 0959.
Position number 0959 is the only position within the single agency class of agricultural investigator supervisor.
During the 1976 legislative session, and even before the session began, at committee hearings conducted in the course of the appropriations process, there was talk of abolishing the livestock theft program, a proposal which respondent's personnel resisted to the extent practicable. Although petitioner's name was never mentioned in these deliberations, on at least one occasion a legislator made specific reference to abolishing the position of agricultural investigator supervisor.
After passage of the appropriations bill by the 1976 legislature, the Hon. Jack D. Gordon, Chairman, Senate Committee on Ways and Means, and the Hon. Edmond M. Fortune, Chairman, House Committee on Appropriations, wrote a letter to the Hon. J. H. Williams, Lieutenant Governor and Secretary of Administration, and the Hon. Ernest Ellison, Auditor General, to which they attached "computerized program component work papers for . . . use in development of the agencies' approved operating budgets for 1976-77." Respondent's Exhibit No. 1. The fourth item on the attachment reads, as follows:
REDUCTION IN LIVESTOCK THEFT PROGRAM
AGRICULTURAL INVESTIGATOR SPECIALIST;
AGRICULTURAL INVESTIGATORS
At no time has there been a position within respondent department called "agricultural investigator specialist." Notwithstanding the use of the title "agricultural investigator specialist," the legislature intended to abolish the position of "agricultural investigator supervisor."
Mr. C. Douglas Shelby, now assistant director of administration for respondent, was respondent's personnel officer in June of 1976; the Hon. Doyle Conner, head of respondent, had delegated to Mr. Shelby authority to deal with personnel matters generally. When the appropriations bill passed, Mr. Shelby and Jerry Gullo, a training manager for respondent, began work on implementing the legislation. After considering Emergency Rule 22 AER 76-1, which took effect on June 15, 1976, Mr. Gullo drafted a letter to petitioner for Mr. Shelby's signature, dated June 16, 1976, notifying petitioner that his job would no longer exist as of the close of business on June 30, 1976. The letter was mailed on June 16, 1976; petitioner received notice of the letter's arrival on June 17, 1976, but actually saw it and read it for the first time on June 18, 1976. A copy of the letter was admitted in evidence as respondent's exhibit No. 5.
In part, the letter advised petitioner that "you have the right to request a demotion to a class in which you previously held permanent status or reassignment in a class in which you held permanent status in lieu of layoff . .
." On receipt of the letter dated June 16, 1976, petitioner drafted a letter requesting reassignment or demotion, but when, on June 21, 1976, Mr. Gullo told petitioner that there would be no possibility of reassignment or demotion under Emergency Rule 22 AER 76-1, because, said Mr. Gullo, petitioner had not attained career service status in any class other than that of agricultural investigator supervisor, petitioner decided there would be no point in submitting the letter he had drafted and did not do so. Also on June 21, 1976, official notice of the abolition of respondents position number 0959 was mailed by respondent to Mr.
Kennison. (Respondent's exhibit No. 3) Petitioner had no further discussion with respondent's personnel about the layoff before he left respondent's employ.
On June 30, 1976, Lieutenant Governor William, acting as Secretary of Administration, and in response to a letter from Mr. Shelby, which was received
in evidence as respondent's exhibit No. 3, approved "[s]tatewide within the Division of Animal Industry," respondent's exhibit No. 4, as the competitive area for purposes of Emergency Rule 22 AER 76-1. Id. On July 1, 1976, petitioner was out of a job, despite the good work he had done in the livestock theft program and his many years of state employment.
Petitioner filed a timely appeal with the Career Service Commission. Respondent notified the State Personnel Director of the layoff by letter dated July 12, 1976, which came in evidence as respondent's exhibit No. 2.
STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976)
Respondent submitted no proposed findings of fact.
Paragraphs two, three, and five through twelve of petitioner's proposed findings of fact have been adopted, in substance.
Paragraph one of petitioner's proposed fact findings has been adopted, in substance, assuming "at all times material hereto" is intended to mean from September 21, 1972, until June 30, 1976, or some portion of that time period.
Paragraph four of petitioner's proposed fact findings has been adopted, in substance, except for the reference to respondent's exhibit No. 3, which is a copy of a letter from Mr. Shelby to Mr. Kennison, dated June 21, 1976.
Paragraphs thirteen and fourteen of petitioner's proposed fact findings accurately reflect the evidence, but are irrelevant to resolution of the dispute.
CONCLUSIONS OF LAW
The 1976 legislature abolished the position petitioner held in respondent department.
Emergency Rule 22 AER 76-1, entitled "Emergency Rule governing layoff of Career Service Employees," which implements Section 110.061(2)(a), Florida Statutes (1976 Supp.), applies to these facts (assuming the validity of the rule.)
Pursuant to Emergency Rule 22 AER 76-1(B), the Secretary of Administration should have received notice of the abolition of respondent's position number 0959 "fourteen (14) calendar days" beforehand. In fact, respondent sent official notice only nine days before the position was abolished, but this and other deviations from times specified in Emergency Rule
22 AER 76-1 did not prejudice petitioner in any way.
As required by Emergency Rule 22 AER 76-1(c), the head of respondent department, through his delegate, Mr. Shelby, identified as the competitive area respondent's Division of Animal Industry, which was approved as such by the Secretary of the Department of Administration. The widest possible competitive area contemplated by subsection C would have been the entire Department of Agriculture and Consumer Services statewide. In the circumstances of the present case, however, the scope of the competitive area is irrelevant, because subsection (D)(1) provides that, "[l]ayoff shall be by class within the competitive area," and petitioner held the only position in its class. The term
"class of positions" is defined by statute as "all positions which are sufficiently similar . . . to warrant the same treatment as to title, pay range, and other personnel transactions." Section 110.042(5), Florida Statutes (1975). Aside from position number 0959, no position within respondent department had the title of agricultural investigator supervisor, and petitioner failed to prove that any other position was so similar that it should have been titled "agricultural investigator supervisor."
Petitioner's failure to request demotion or reassignment within seven days should not deprive him of any rights under Emergency Rule 22 AER 76-1(D)(9) to which he might otherwise have been entitled, because he would have made timely request, but for respondent's agent's representations that the request would be futile.
Petitioner did not get fourteen days notice of the layoff as required by Emergency Rule 22 AER 76-1(D)(9), and is entitled to two weeks' pay, in lieu thereof.
DONE and ENTERED this 20th day of June, 1977, in Tallahassee, Florida.
ROBERT T. BENTON, II
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32304
Conley M. Kennison
Attn: Mrs. Dorothy Roberts Career Service Commission Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
