STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD AMSBURY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2175

) CS Docket No. 77-161

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, ) MENTAL HEALTH PROGRAM OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 9, 1978, in Gainesville, Florida. Edward Amsbury (sometimes referred to as "Petitioner" herein) appeals certain personnel actions by the Department of Health and Rehabilitative Services, Mental Health Program Office (sometimes referred to as "Respondent" herein), to wit: a demotion in his job classification and a concomitant reduction in pay. The issue posed is whether or not the action of the Respondent was for good cause and supported by competent and substantial evidence and therefore should be sustained.

APPEARANCES

Edward Amsbury appearing Pro Se, 5620 Northwest 25th Terrace, Gainesville, Florida 32601; Thomas K. McKee, Jr., Esquire, Post Office Box NFETC, Gainesville, Florida 32602.

Based on the testimony of the witnesses and their demeanor while testifying, the record evidence introduced by the parties and the arguments of counsel and the Petitioner, I hereby make the following:

FINDINGS OF FACT

1. Edward Amsbury, Petitioner, is a Career Service employee with permanent status. The Petitioner timely filed an appeal of the Respondent's actions as set forth above.

   
   

2. According to Petitioner, he applied for several jobs under the reorganization of the Department of Health and Rehabilitative Services (HRS) prior to July of 1976. At that time he was advised that inasmuch as he was not an adversely affected employee, he would only be considered after all adversely affected employees were placed in other positions. On July 9, 1976, a letter was sent by George Van Staden, ASO, by Larry Overton to the District Administrator advising that Petitioner was originally to have been adversely affected and he (Van Staden) asked for justification as to why Petitioner's position was continued in the District III personnel structure. Thereafter, on approximately July 22, 1976, according to Petitioner, Richard Dillard, Sub-

   district III-A Administrator, orally advised him that his position would be abolished prior to January 1, 1977, due to HRS' reorganization. A few days later, Petitioner was advised by Mr. Dillard that his position as Mental Health Representative was being reclassified to that of the Community Resources Development Unit Supervisor as of October 1, 1976, and that the pay grade would be 18 rather than his then existing pay grade, 19. Petitioner was asked to write a new job description for the Community Resources Development Supervisor, at which time he was offered that position. Petitioner was then at the top of Pay Grade 18; however, he was advised by Mr. Dillard that his salary would not be reduced since he, in effect, was adversely affected due to reorganization.

   In view of the lateness with which the Petitioner was advised that his position was adversely affected, there were then only two positions available within the district, i.e., Community Resources Development Unit Supervisor or Clinical Social Worker II at the North Florida Evaluation and Treatment Center.

   Petitioner chose the position more closely related to his field of Mental Health, i.e., the Community Resources Development Unit Supervisor, and was told by Mr. Dillard that he would retain his present salary regardless of which position he accepted. All the Petitioner's performance evaluations were satisfactory or above. Based on the record, it appears that the Petitioner was forced to accept a position with a lower pay grade due to HRS' reorganization.

   
   

3. By letter dated July 1, 1977, the Petitioner was advised by William H. McClure, Jr., District Administrator, that the Department of Administration had disapproved the District Administrator's request that he (Petitioner) maintain his current salary above the maximum for the class of Clinical Social Worker II, to which he was demoted on September 17, 1976. Correspondence from Conley Kennison, State Personnel Director, reveals that determination was based on the following reasons:

   
   

   1. Petitioner's voluntary demotion was not directly attributable to reorganization since the position of Mental Health Representative continued in existence until July 1, 1977;

   2. He retained his bi-weekly salary of

      $584.76 upon demotion without approval of the State Personnel Director; and

   3. Petitioner was not informed in writing the Mental Health Representative position would be adversely affected, by reorganization.

      
      

   4. As a result thereof, the Department of Administration contended that it overpaid the Petitioner the amount of $11.16 per bi-weekly pay period and that in accordance with provisions of Chapter 22K-10.04(2) of the Personnel Rules and Regulations, such amount must be recovered and to effect such, said amount would be deducted from each salary warrant for a period of twenty-one pay periods to cover the overpayment from September 17, 1976, through July 7, 1977. Additionally, effective July 8, 1977, Petitioner's salary was reduced to the maximum for Pay Grade 18, i.e., $573.60 bi-weekly. The letter of July 1, 1977, further advised the Petitioner that although he was originally designated adversely affected along with all the other Mental Health Representative positions, positions which were to be abolished on July 1, 1976, the District Administrator was later told that Petitioner's position would not be abolished until January of 1977. Petitioner, as stated in said letter, took his demotion in good faith, feeling that his position of Mental Health Representative would be abolished. On November 17, 1976, the District Administrator forwarded a request to the Department of Administration requesting that Petitioner's salary be maintained; however, no action was taken because no administrative

      disposition bad been taken with respect to the abolishment of that position. A further request was sent to the Department of Administration in April, and during June of 1977 the request was denied and efforts to recover the overpayment were implemented.

      
      

   5. Evidence contained in the case files revealed that several employees who were voluntarily demoted pursuant to reorganization were granted permission to maintain their current salaries which amounted to payments above the maximum for the class to which they were demoted. The Respondent offered no evidence to refute or otherwise contradict the statements and contentions of the Petitioner that he was advised by district representatives and personnel that his salary would be maintained even though he was being demoted due to reorganization. It further appears that the Respondent, in relying on statements by the District Administrator (Dillard), was hampered in his efforts to obtain favorable consideration for other positions which were up for bid during the reorganization process. Noteworthy is the uncontradicted statement that the Petitioner was told that inasmuch as he would not be adversely affected by reorganization, he would not be considered for positions until all adversely affected employees had been placed in positions which were open for bid during reorganization. A memorandum from Art Adams of the HRS Personnel Office to John Campbell, Personnel Officer for District IV, dated August 9, 1976, advised that all employees who were asked to take a demotion due to reorganization would retain their salaries over the maximum.

      
      

   6. For all of the above reasons, including the indefensible position advanced by the Respondent, I shall recommend that the Respondent's action in reducing the Petitioner's pay and seeking to recover amounts allegedly overpaid be reversed.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), F.S.

      
      

   8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, F.S.

      
      

   9. The authority of the Commission is derived from Section 110.061, F.S., and Rule 22A-2.10, Florida Administrative Code.

      
      

   10. Based on the uncontradicted testimony of the Petitioner, District III Personnel Officer Jerry Wynn, and the August 9, 1976, memo from HRS Personnel Director Art Adams to John Campbell, Personnel Officer, District IV, advising that employees who were asked to take a demotion due to reorganization and who were adversely affected would retain their salaries over the maximum for the particular grade to which they were demoted, no competent and substantial evidence was offered to sustain the Respondent's action.

RECOMMENDATIONS

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

1. The Petitioner's salary be reinstated to the level to which he was receiving as of the date of demotion on or about September 17, 1976.

2. That the Respondent make whole any loss of pay the Petitioner suffered as a result of the reduction in his salary and the bi-weekly deductions of

   $11.16.

   
   

3. That the Petitioner be paid interest at the rate of 6 percent per annum based on the amounts withdrawn from his salary warrants through the deductions and the recovery of amounts allegedly overpaid him when his salary was reduced.

RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.

COPIES FURNISHED:

Mr. Edward Amsbury

5620 Northwest 25th Terrace Gainesville, Florida 32601

Mrs. Dorothy B. Roberts Career Service Commission

443 Carlton Building Tallahassee, Florida 32304

Joseph E. Hodges, Esquire 2002 Northwest 13th Street

3rd Floor, Oak Park Executive Square Gainesville, Florida 32601

Thomas K. McKee, Jr., Esquire Post Office Box NFETC Gainesville, Florida 32602

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA

IN THE APPEAL OF EDWARD AMSBURY

against DEMOTION AND REDUCTION

IN PAY CASE NO. 77-2175

by the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

/

ORDER

APPROVING RECOMMENDED ORDER

Vice Chairman Clare C. Leiby and members Dana D. Chapman and Edward T. Quigley participating.

This cause came on to be considered by the Career service Commission on September 26, 1978, in Miami, Florida. Upon consideration of the Recommended Order of Hearing Officer James E. Bradwell, Exceptions thereto filed by the Agency, Order Clarifying, and the file on this appeal, the Career Service commission hereby adopts and incorporates by reference the findings of fact and conclusions of law set forth in the Recommended Order dated July 27, 1978.

Based on these findings of fact and conclusions of law, it is the decision of this Commission that the recommendation of the Hearing Officer should be adopted in part. In accordance with Section 22A-10.07(2), Personnel Rules and Regulations, the orders of the Commission may include, ". . . other decisions deemed proper and necessary based on the circumstances of the appeal." Under the circumstances of this case, this Commission is of the opinion that the Appellant left his position and higher pay at the suggestion and encouragement of the Agency, innocently believing that he had no other choice because the position was being abolished as a result of reorganization. Initially, the Appellant was informed that his position would not be affected by reorganization; then he was told it would; now he is informed that it was not, after changing jobs with promises of no loss in pay. Accordingly, it is

ORDERED that the Appellant, Edward Amsbury, be permitted to retain the salary he was earning at the time of his demotion on or about September 17, 1976, in accordance with the provisions of Section 22A-2.07(1)(d), Personnel Rules and Regulations, said salary being $584.767 biweekly. Further, it is

ORDERED that the Agency shall pay to the Appellant all salary lost as a result of his reduction in salary to $573.60 biweekly on or about September 17, 1976, up to and including the present date. Further it is

ORDERED that the agency shall pay to the Appellant all monies withheld from his salary to reimburse the agency for alleged overpayment of salary. Further, it is

ORDERED that the agency shall not pay interest on the amount withdrawn from Appellant's salary warrants to recover the amount allegedly overpaid him.

DONE AND ORDERED this 29th day of November, 1978.

CLARE C. LEIBY, Vice Chairman Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Order was sent by U.S. mail to Edward Amsbury, 5620 Northwest 25th Terrace, Gainesville, Florida 32601; Thomas K. McKee, Jr., Attorney, Post Office Box NFETC, Gainesville, Florida 32602; Joseph

E. Hodges, Attorney, Department of HRS, Gainesville, Florida 32601; Charles Bradwell, Hearing Officer, Division of Administrative Hearings, Carlton Building, Tallahassee, Florida 32304, this 30th day of November, A.D., 1978.

CAREER SERVICE COMMISSION

BY: Carolyn J. Bellis

Docket for Case No: 77-002175

Orders for Case No: 77-002175