STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH B. CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1556

) DOCKET NO. 77-168

DEPARTMENT OF EDUCATION, )

DIVISION OF UNIVERSITIES ) (CAREER SERVICE COMMISSION), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:00 A.M., March 15, 1978, in Room 103 of the Collins Building, Tallahassee, Florida.

APPEARANCES

For the Petitioner: Luther C. Smith

Smith and Randolph

121 1/2 South Monroe Street Tallahassee, Florida 32301

For the Respondent: Betty J. Steffens

Associate University Attorney

212 Westcott Hall Florida State University

Tallahassee, Florida 32306 INTRODUCTION

Petitioner Elizabeth B. Clark has appealed to the Career Service Commission the respondent's action of laying her off from her position of Librarian II with the Career Education Center at Florida State University. To support its position that the layoff occurred solely because of budgetary considerations and that proper procedures were followed, the University presented the testimony of Dr. Robert Lathrop, director of the Career Education Center; Ms. Margaret Winkler, coordinator of the Information Services Division of the Center; and John Goldinger, manager of employee relations and training at Florida State University. To support her contention that she was laid off for reasons other than legitimate budgetary considerations, Ms. Clark testified in her own behalf and presented the testimony of Dr. Erb Fontenot. Objections to testimony from Dr. Fontenot concerning an independent investigation of the layoff policies and procedures of the Career Education Center were sustained. Received into evidence at the hearing were respondent's Exhibits 1 through 12 and petitioner's Exhibits A and B.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner Elizabeth B. Clark was employed as a Librarian II with the Information Services Division of the Career Education Center in May of 1976. The Center contains several divisions, has approximately ninety employees and provides support services to the Vocational Division of the State Department of Education. It is funded with federal dollars obtained via grants and contracts with the Department of Education, pursuant to a contract between the state and federal government. The individual coordinators of the Center's various divisions submit a recommended budget to the Center's director, the director prepares an overall budget for the Center and that budget is then submitted to the Department of Education. The Center's budget year runs from July 1st through June 30th.

   
   

2. In the 1976-77 budget year and prior thereto, the Center's director had wide discretion as to where and in which categories or divisions within the Center monies would be allocated. The budget for the Information Services Division for the 1976-77 year was approximately $250,000.00, of which approximately $185,000.00 went for salaries for the Division's twenty-seven employees.

   
   

3. It was anticipated by supervisory personnel at the Center that there would be a growth in the services provided by the Information Services Division in the 1977-78 budget year. As a consequence, the initial budget proposal recommended by the coordinator of the Division, Ms. Winkler, was approximately

   $350,000.00.

   
   

4. In the early months of 1977, a reorganization of the Information Services Division was contemplated due to the anticipated expansion of services to be provided. Petitioner felt that her new responsibilities in the area of technical services were lesser in scope and that the anticipated reorganization plan was, in effect, a demotion. She complained to her superiors and filed several grievance procedures against the reorganization attempts. In fact, the reorganization was never implemented because of a cutback in funds allocable to the Division.

   
   

5. In the latter part of May, 1977, Director Lathrop was advised that funds previously available for the Center's activities had been severely curtailed due to amendments to the federal law. Unlike prior allocations, the federal amendments designated the categories to which the funds must be applied, and funds for informational services were cut the most. As a result of the cutback, the Information Services Division coordinator submitted a second budget proposal recommendation of $124,000.00, with approximately $91,000.00 of that going for salaries. This almost one-half reduction in budget necessitated a reduction in the services to be supplied and a corresponding reduction in staff. Coordinator Winkler thus recommended the elimination of twelve or thirteen positions, nine of which were filled by career service employees. These nine positions included three clerk-typists, one clerk, one library technical assistant, three Librarian I's and one Librarian II, the latter of which was occupied by petitioner. At that time, there existed five librarian positions - four Librarian I's and one Librarian II.

   
   

6. In making the determination as to which positions were to be eliminated, Ms. Winkler considered the reduced emphasis in the technical

   services area thus allowing a reduction in the clerical staff. Having a master's degree in library science, Ms. Winkler assumed that she could pick up some of the library work. After determining to eliminate four of the five librarian positions, she could not justify keeping the Librarian II position, since there would then be no other librarians to supervise.

   
   

7. Director Lathrop reviewed and concurred with Ms. Winkler's recommendation concerning the elimination of the twelve or thirteen positions. In making this decision, Dr. Lathrop considered the Vocational Division's priorities among the services to be offered and the reduced need for supervisory personnel in light of the reduction in staff. At that time, the basic duties of the Librarian II, Ms. Clark's position, were technical services and the supervision of other librarians and clerical personnel.

   
   

8. Having made the decision to eliminate these positions, the Center properly notified the Personnel Relations Department of Florida State. This Department, after receiving the required approval from the Board of Regents for elimination of the positions, conducted a review of retention points held by the incumbents to determine which employees would be laid off.

   
   

9. Thereafter, Ms. Clark was timely notified that she would be laid off effective July 15, 1977, from her position of Librarian II wit the Career Education Center. The official notice stated, in part:

   
   

   "This action in no way reflects upon your performance or ability, but is solely related to budgetary limitations in the grant for which you worked."

   
   

   The Personnel Department notified the State Division of Personnel of the layoff so that her name could be placed on the official layoff register. This Department also sought to find Ms. Clark another position within the competitive area.

   
   

10. At the time of the layoff decision, the budget for the Information Services Division was $124,000.00. In addition to this amount, the Division had a grant in the amount of $11,500.00 and they were working on a grant in the amount of $14,750.00. Another grant of $32,000.00 occurred later in the budget year. These additional monies were to be applied to specific projects and services.

    
    

11. Since the layoff, the Division has added seven or eight positions, including a faculty position equivalent to a career service Librarian II. The existence of this latter position was not predicted at the time of the layoff. The additional positions have been funded out of the additional grants for specific services and by not filling positions left vacant under the $124,000.00 budget.

    
    

12. Ms. Clark did not find other employment until mid-October, 1977. She was not notified of the faculty position opening until three days after she had obtained her new employment. She presently has no desire to return to employment with the Information Services Division, but feels entitled to back pay for the three months in which she was without employment.

    CONCLUSIONS OF LAW

    
    

13. There have been no contentions by petitioner that respondent did not follow or comply with the layoff procedures of either Florida State University or the state career service system. Rather, petitioner contends that respondent illegally utilized those procedures to accomplish the result of dismissing Ms. Clark due to the improper motives of her supervisor, Ms. Winkler. The evidence adduced at the hearing wholly fails to support this contention.

    
    

14. An employee may be separated from the career service only for cause. As defined in F.S. 110.042(24):

"'Layoff' means termination of employment due to abolishment of positions necessitated by a shortage of funds or work, or a material change in the duties or organization of an agency."

Here, the University clearly illustrated that the layoff decision was a direct result of the cutback in federal funds. The budget for the Information Services Division was reduced by almost one-half, which necessitated a corresponding reduction in staff personnel. The decision regarding which positions to eliminate was a result of the shifting of emphasis upon the services to be performed by the Division, as well as the effects of the elimination of various positions on remaining positions. Under these circumstances, it simply cannot be found that petitioner was wrongfully laid off from her position of Librarian II with the Career Education Center. The effect of what occurred within the Division after the layoff decision was made does not alter this conclusion.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the appeal of petitioner be dismissed.

Respectfully submitted and entered this 31st day of March, 1978, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Betty Steffens, Esquire

212 Westcott Hall Florida State University

Tallahassee, Florida 32306

Luther C. Smith, Esquire

121 1/2 South Monroe Street Tallahassee, Florida 32301

Docket for Case No: 77-001556

Orders for Case No: 77-001556