STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER FITZGIBBON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1970

)

DEPARTMENT OF OFFENDER )

REHABILITATION, )

)

Respondent, )

and )

)

EDWARD M. TEUTON, )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on April 11, 12, and 14, 1978, at Tallahassee, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Jerry Traynham, Esquire

1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: Earl Archer, Esquire

1311 Winewood Boulevard

Tallahassee, Florida 32301

For Intervenor: Edward M. Teuton

1311 Winewood Boulevard

Tallahassee, Florida 32301 ISSUE

Validity of layoff of Walter Fitzgibbon as a Planner and Evaluator II, Department of Offender Rehabilitation, as set forth in letter of Louie L. Wainwright, dated September 14, 1977.

FINDINGS OF FACT

1. Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his

   position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29)

   
   

2. In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9)

   
   

3. The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4)

   
   

4. On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four

   employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26)

   
   

5. In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean)

   
   

6. By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6)

   
   

7. Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had

   not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13)

   
   

8. On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14)

   
   

9. The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the

   contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation.

   
   

10. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright,

    T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20)

    
    

11. Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28)

    
    

12. On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was

    necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form.

    Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments.

    
    

13. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department.

    
    

14. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)

    
    

    CONCLUSIONS OF LAW

    
    

15. This appeal by a permanent career service employee to the Career Service Commission lies under Chapter 110, Florida Statutes, and the implementing rules of the Department of Administration. Section 110.061(2)(a) authorizes the Department of Administration to establish rules and procedures for certain adverse personnel actions, including layoff of employees in the career service and for the hearing of appeals by the Career Service Commission. It also provides for the establishment of competitive areas for layoffs and layoff procedures. Subsection (2)(b) provides that any such appeal shall be filed with the commission within twenty (20) days from the date on which the notice of layoff is received by the employee.

    
    

16. Pursuant to the above statutory authority, Rule 28A-7.11, Florida Administrative Code, establishes layoff procedures, and provides in paragraph

    (9) thereof that an employee who has permanent status in the career service shall have the right to appeal the layoff in accordance with Rule 22A-10.05. That rule restates the statutory requirement that any appeal is to be filed with the State Personnel Director within twenty (20) days from the date the employee receives notice of layoff from the agency. Fitzgibbon complied with this procedural requirement.

17. Rule 22A-7.11 (9) also requires that any such appeal must be "based upon whether the layoff was in accordance with the provisions of this section." Accordingly, the basic issue for decision is whether or not the DOR complied with pertinent provisions of the layoff rule in its actions concerning the employee. The DOR contested Fitzgibbon's right to lodge an appeal under the rule because subparagraph (i) thereof gives an employee who receives a notice of layoff the right to request a demotion within the competitive area in lieu of layoff. Fitzgibbon did so request a demotion, but conditioned the request to show that it was made under protest and solely to preserve his right to state employment while his appeal against layoff was pending. He was, in fact, demoted pursuant to his request from Planner and Evaluator II to Planner and Evaluator I in December, 1977, and is now serving in that capacity in the DOR. The agency claims that such action on the employee's part effectively removed his right to appeal a layoff because no layoff was ever effected. It further points to Rule 22A-10.05 (1)(c) which provides that an employee who accepts a demotion shall waive all rights to appeal such action if the employee has signed a written statement that the action is voluntary. However, this provision relates only to an appeal against the demotion itself and is not pertinent here. This Hearing Officer denied DOR's prehearing motions to dismiss in view of the involuntary nature of Fitzgibbon's action and because the statute and rules provide that the right to appeal the layoff accrues upon receipt of the notice thereof, not when layoff actually takes place. It is probably true that if Fitzgibbon's request for demotion had been truly voluntary, or if the agency had rejected his conditioned request for demotion and required an unconditional request prior to granting a demotion, the situation might have been different and Fitzgibbon might have forfeited his right to appeal the projected layoff. However, under the circumstances here, it is considered that he preserved his right to challenge the procedures utilized by the DOR.

    
    

18. Respondent DOR also moved to dismiss the proceedings on the grounds that Rule 22A-7.11 is invalid. This motion appears to be predicated upon an idea that the rights of the incumbent of the contested position - Teuton - would be jeopardized if Fitzgibbon prevails in this proceeding and "bumps" Teuton under the rule due to a higher number of retention points. The motion is without merit for several reasons. Aside from the fact that it is somewhat incongruous for the DOR to be contesting the very rule under which it took the action in question here, a petition to challenge the rule pursuant to Section 120.56, F.S., has never been filed and therefore a determination of the validity of the rule cannot be embraced in this proceeding. Further, any rights of Teuton necessarily must be resolved in a proceeding of his own if the need for such ever arises. Finally, the DOR buttresses its motion on the fact that under Section 110.061(1), an agency can terminate a career service employee (Teuton) only for cause" which is said to deal solely with an employee's performance of duty." Suffice it to say in this regard that Section 110.061(1) was amended in 1976 to change the word "terminated" to "dismissed." One who is terminated from employment as a result of a layoff is not necessarily "dismissed" from his employment.

    
    

19. Rule 22A-7.11 sets forth the normal procedures to effect layoffs and provides generally that once the number of positions to be abolished have been determined by the agency and a competitive area within which layoffs will be effected are identified, and approved by the Department of Administration, a layoff list of affected employees is prepared showing the number of retention points for each employee based on length of service and performance evaluations. Employees with the last number of retention points are the first to be laid off and the total number of positions in the class to be abolished will determine the number of employees to be laid off. In this manner, certain employees

    succeed to positions within the class that are still in existence and, if none are available, their names are placed on a layoff register for a period of two years during which they have priority for reemployment. In the instant case, DOR, instead of following the normal procedures which would result in the employee with the highest number of retention points succeeding to the one remaining position of Planner and Evaluator II, elected to request that the available position be filled by the concept of "selective competition" within the competitive area Rule 22A-7.11(3) provides in this respect as follows:

    
    

    22A-7.11 Layoffs.

    (3) . . . Selective competition within the competitive area may be authorized by the State Personnel Director based upon specific qualifications deemed necessary for a position if the duties and responsibilities requiring

    such qualifications are clearly reflected in the position description for the position.

    
    

    The preponderance of the evidence establishes that selective competition for the position of MPP Coordinator was justifiably authorized by the State Personnel Director based on the criteria of the position description and the specific qualifications listed by the Secretary of the DOR in his request. The manner in which selective competition is to be carried out is not stated in Rule 22A-7.11, but the unwritten policy of the Department of Administration that only those possessing the specific qualification are entitled to compete for the position was applied by the DOR in the instant case. The policy further provides that if more than one employee possesses the necessary qualifications, the one possessing the most retention points will be appointed to the position. This aspect of the policy was not found to be applicable by the DOR because it determined that only Teuton had the necessary qualifications. Although the Department of Administration might be well-advised to spell out the above policy in Rule 22A-7.11 for the guidance of agencies and employees alike, the policy itself was not challenged in these proceedings and is deemed to be a reasonable means of effectuating the concept of selective competition.

    
    

20. The remaining questions for determination are (1) Was the DOR decision to fill the contested position through selective competition a sham or device to ensure that Teuton could be retained and that Fitzgibbon, the employee possessing the most retention points, would not "rank" into the job, and (2) Did Fitzgibbon possess the specific qualifications deemed necessary for the position? It is clear from the evidence that the DOR officials viewed the coordinator position as a critical one within the department and was more than satisfied with the progress of the program under the guidance of Teuton. They did not feel that Fitzgibbon possessed the necessary institutional experience or other special qualifications to qualify for the job and to successfully conduct the sensitive coordination function. It can be argued that Fitzgibbon's wealth of background, education and experience, although not in a correctional institutional setting, provided him with the basic qualifications to carry out the duties and responsibilities as shown in the position description. However, when considering the unique nature of the pilot program and the fact that the DOR had almost a year's experience in administering the program, it cannot he disputed that its officials were in the best position to determine that the special qualifications of prior correctional institutional experience, knowledge of institutional programs, and inmate classification experience were necessary in order to satisfactorily perform the duties of the position of coordinator.

    It is considered that such special qualifications were indeed reasonable and

    necessary for the incumbent and that selective competition was justified in this instance.

    
    

21. It should be pointed out, however, that a cloud was placed on the objectivity of the process by the manner in which Fitzgibbon was first led to believe that he would succeed to the position and then belatedly told, after the fact, that selective competition had been conducted and that he was to be laid off because he failed to meet the necessary qualifications. It would seem to be in the best interests of all concerned that the process of selective competition be made known to those persons in the class as to their eligibility or noneligibility to compete. Additionally, the irregular manner in which Fitzgibbon's annual evaluation report was rendered contrary to agency personnel directives, and under questionable practices whereby the immediate supervisor was not apparently free to exercise his independent judgment, casts some suspicion on the situation. However, in spite of these matters, it is concluded that the agency acted in accordance with the provisions of the layoff rule and implementing policy in conducting selective competition for the position.

RECOMMENDATION

That the Career Service Commission deny the appeal.

DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Jerry Traynham, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

Earl Archer, Esquire 1311 Winewood Boulevard

Tallahassee, Florida 32301

Edward M. Teuton

1311 Winewood Boulevard

Tallahassee, Florida 32301

Mr. Conley Kennison

Attn: Mrs. Dorothy Roberts Appeals Coordinator

Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: Appeal of Walter Fitzgibbon ) against layoff by the Department of )

Offender Rehabilitation, Career ) Case No. 77-1970 Service Commission Docket No. 77-249 )

)

SUPPLEMENT TO RECOMMENDED ORDER

1. A Recommended Order in the above-captioned matter was issued on May 9, 1978. The Hearing Officer announced at the conclusion of the hearing on' April 14, 1978, that any Memorandum Briefs were to be received in the Division within

   20 days thereafter. Briefs were therefore due in the Division by May 4, 1978. Although Petitioner's brief was mailed on May 4, it was not received in this Division until May 8 and not received through administrative channels by the Hearing Officer until May 10. Consequently, it was not considered prior to issuance of the Recommended Order herein.

   
   

2. Although the brief is deemed to have been untimely filed, it should be noted that all pertinent matters set forth therein except the Petitioner's purported challenge to the selective competition portion of Rule 22A-7.11(3), Florida Administrative Code, were considered by the Hearing Officer in his Recommended Order. Assuming arguendo that a rule challenge properly may be made an issue for determination in a Section 120.57(1) proceeding contesting agency action absent the initiation of the procedural steps set out in Section 120.56, F.S., Petitioner did not assert such a challenge against Rule 22A-7.11(3) in his appeal petition nor was it ever properly made an issue in these proceedings. Consequently, the matter cannot now be considered.

Done and Entered 10th day of May, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Jerry Traynham, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

Earl Archer, Esquire 1311 Winewood Boulevard

Tallahassee, Florida 32301

Edward M. Teuton

1311 Winewood Boulevard

Tallahassee, Florida 32301

Mr. Conley Kennison

Attn: Mrs. Dorothy Roberts Appeals Coordinator

Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-001970

Orders for Case No: 77-001970