STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

) DOUGLAS A. CHARITY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3381

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearing, beginning on March 21, 1983, and continuing on March 22, April 21, April 22, and April 29, 1983, in Tallahassee, Florida. The issue for determination in these consolidated proceedings is whether petitioner is entitled to retroactive classification, salary, and/or other remuneration for the duties he performed with the Division of Security, Department of General Services between August 27, 1980, and January 10, 1982.

APPEARANCES

For Petitioner: Robert B. Beitler, Esquire

Post Office Box 12921 Tallahassee, Florida 32317

For Respondent, Daniel C. Brown, Esquire (Department of General Counsel

Administration) 435 Carlton Building

Tallahassee, Florida 32301

For Respondent, Sylvan Strickland, Esquire (Department of and Thomas M. Beason, Esquire General Services) Room 452, Larson Building

Tallahassee, Florida 32301

INTRODUCTION

In support of his position that he is entitled to retroactive personnel action, including retroactive classification and salary, petitioner testified in his own behalf and presented the testimony of Ed Cellone, the Bureau Chief of State Payrolls, Office of the Comptroller. Petitioner's Exhibits 1, 2, 4-10, 12, 18, 19, 21-23, 29, 32, 42, 47, 52, 56, 59-63, 67, 68, 70, 72, 75, 78, 80,

81, 92, 98, 102-106, 109-113, 115, 119-121, 123, 126, and 128-136 were received

into evidence.

The respondent, Department of Administration (DOA), presented the testimony of Lucky Rudolph Jones, the Chief of the Bureau of Program Assistance; Louise Campbell, a Personnel Program Analyst III with the Department of Administration; and Ada Davey "Bebe" Blount, the Chief of the Bureau of Human Resources, Management and Improvement, who was accepted as an expert witness concerning the career service classification system in Florida. DOA's Exhibits 6 and 7 were received into evidence.

The respondent, Department of General Services (DGA), presented the testimony of Allen Dees, the Assistant Director of the Division of Security; Nathan Sharron, the former Director of the Division of Security; and C. David Fulcher, the Chief of the DGS Bureau of Personnel Management Services. DGS's Exhibits 1-3 and 15 were received into evidence.

Subsequent to the hearing, each of the parties submitted proposed findings of fact and proposed conclusions of law which have been fully considered. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

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

1. Between July 25, 1977, and August 10, 1978, petitioner, Douglas A. Charity, was employed with the Division of Security, Department of General Services, first as a Capitol Security Officer I and then as a Surveillance Systems Operator. Thereafter, petitioner was employed for approximately ten months as a legislative intern budget analyst with the Senate Ways and Means Committee. From there, he was employed between June and November of 1979 as a research analyst with the Citizens Council for Budget Research. One of his prime projects in this position was a review and analysis of the Division of Motor Pools in the Department of General Services (DGA). From December of 1979 through August 27, 1980, petitioner was unemployed. He desired to find a position in an administrative, analytical or consulting capacity but was unsuccessful in finding employment.

   
   

2. On August 27, 1980, petitioner was offered employment with the Division of Security within DGS. Based upon prior conversations, it was orally agreed between petitioner and administrators within the Division of Security that petitioner would be assigned to and be paid at the salary level for the position classified as a Capitol Security Officer I. The salary for this position was approximately $8,000.00 per year. It was further agreed that petitioner would not wear a uniform nor would he perform the duties normally required of a

   Capitol Security Officer. Instead, it was agreed that petitioner would perform duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties of an "administrative" nature and assist with the preparation and writing of a four-year plan containing an analysis of the Division of Security. Because the preparation of the four-year plan was not expected to take long and because the salary for a Capitol Security Officer was not as high as petitioner desired, it was anticipated by those within the Division of Security that petitioner would continue to seek other employment.

   Petitioner did, in fact, continue to seek other employment. One of his reasons for accepting employment with the Division of Security was to enhance his possibilities for employment in an administrative, analytical or consulting capacity through his record at DGS which would show his work on the four-year plan.

   
   

3. Some two and a half months prior to petitioner's employment with the Division of Security on August 27, 1980, an outline for the four-year plan had already been prepared and approved. The purpose of the plan was to review the function and performance of the Division of Security and to set a plan for structural and program development and change. A portion of the plan pertained to position descriptions and classifications and the Division of Security's need for additional positions classified as management analyst and administrative assistant. The plan ultimately concluded that such positions were not needed within the Division of Security. The four-year plan was completed in February of 1981.

   
   

4. In addition to his work on the four-year plan, both before and after February of 1981, petitioner performed duties in the following areas: reports on security personnel, procedures and problems; administrative correspondence and paperwork; budget issues; legislative bill analysis; and the attendance of meetings with DGS officials and legislative staff persons. His duties varied from day to day, dependent upon instructions he received from the Division Director or Assistant Director. Construing the facts presented at the hearing with respect to the duties actually performed by petitioner from August 27, 1980 through January 10, 1982, in a manner most favorable to petitioner, his actual duties compared with the job description for the classification of Administrative Assistant I.

   
   

5. During the entire period in question, petitioner was classified as and received the salary of a Capitol Security Officer I. He never wore a uniform and he never performed the duties of a Capitol Security Officer I which duties included patrolling and maintaining the security of the Capitol Building and Legislative facilities on an assigned shift, locking doors, raising and lowering flags, maintaining logs and related security duties. Petitioner's immediate superiors within the Division of Security, as well as the Executive Director and those within the personnel office of DGS, were aware that petitioner was performing out-of-class duties for the Division of Security. Various efforts were made by DGS officials to help petitioner find employment in a higher position. The possibility of creating a management analyst position in another Division was considered, but that position was never established. Petitioner did not qualify for such a position until approximately October of 1981. The Chief of the Bureau of Personnel Management Services performed an audit of the Division of Security to ascertain if additional administrative positions were needed. While the first draft of the audit report recommended a reorganization of the Division to include an Administrative Assistant I position, it was ultimately concluded that the Division needed only two administrative positions

   -- the Director and the Assistant Director. Petitioner was informed of a position as an Assistant Facilities Services Coordinator in the Bureau of

   Property Management, but chose not to apply for that position. Though efforts were made by officials within DGS to either create a higher position for petitioner or place him in a vacant higher position, petitioner was never promised a specific position. Instead, he was informed of possibilities for placement in the future. He was also told that should such positions become established or available, he would have to qualify for the position and compete with other applicants.

   
   

6. Petitioner discussed his increasing frustrations with his employment situation with officials within DGS. He also sought advice from a Personnel Program Analyst with the Department of Administration (DOA). She advised him that he could request an audit of his position through his supervisor, his own personnel officer or the DOA Bureau of Program Assistance, whose function is to perform desk audits to ascertain whether the duties performed by an employee are the same as the position description for that employee. She also informed petitioner that he could resolve his difficulties through the career service system or the grievance procedure set forth in the collective bargaining agreement. She indicated to him that he may wish to wait and see if the management analyst position (which had been discussed) would become available, in which case the problem might resolve itself if he were able to fill that position.

   
   

7. The Department of Administration was never furnished with a current position description accurately reflecting the duties of petitioner's position. No one ever requested the DOA's Bureau of Program Assistance to perform a desk audit appraisal of petitioner's duties and classification, and petitioner's position was not among those randomly selected for desk audit review.

   
   

8. By late November and throughout December of 1981, officials within DGS were becoming increasingly concerned with the fact that petitioner was performing out-of-class duties. Though efforts were maintained to find a position for petitioner which would more accurately reflect his actual job duties, such efforts were not successful. In mid-December 1981, petitioner filed a grievance pursuant to the collective bargaining agreement. After the final draft of the audit of the Division of Security indicated that no additional administrative positions were needed in that Division, petitioner was informed that he would be required to cease out-of-class work and that he must commence to perform the official duties of a Capitol Security Officer I effective January 11, 1982. Petitioner did assume the duties of a Capitol Security Officer on January 11, 1982, and has since functioned in that capacity.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner contends in this proceeding that since the Department of General Services and the Department of Administration did not adhere to the Classification and Pay Plans of the Career Service System by allowing petitioner to perform out-of-class duties from August 27, 1980, through January 10, 1982, retroactive classification and salary for that period are mandated. In the alternative, petitioner urges that, under a quantum meruit theory, he is entitled to recover a reasonable amount for his services in drafting the four- year plan and performing other administrative duties. It is suggested that a reasonable sum for his services would consist of two contracts, each in the amount of $25,000.00.

   
   

10. The facts of this case clearly establish that the Department of General Services and the petitioner entered into a mutual agreement that petitioner would be appointed to and occupy the established position of Capitol

    Security Officer I but would not perform the duties of that position. Instead, it was agreed that petitioner would perform duties of an administrative nature, but would be paid at the salary level for a Capitol Security Officer I. That mutual, oral agreement was fully executed by the Department and the petitioner. The fact that such an agreement, and performance thereunder, was violative of the statutory Classification and Pay Plans for the State Career Service System (Chapter 110, Florida Statutes) and the Department of Administration rules adopted pursuant to and in implementation thereof (Chapter 22-A, Florida Administrative Code), does not entitle petitioner to the relief he seeks in this proceeding.

    
    

11. Petitioner seems to contend and attempted to prove that the oral, mutual agreement that he would perform out-of-class duties was somehow modified by DGS's "promises" to promote him to a higher position. Even assuming arguendo that such a factual situation would entitle petitioner to some form of relief, the evidence adduced at the hearing totally contradicts a finding that DGS made any "promises" to petitioner regarding employment at a higher level. Rather, the evidence demonstrates that officials within DGS were well aware that petitioner did not wish to wear a uniform and perform the duties of a Capitol Security Officer and made every effort to assist him in locating a position more in line with administrative work. Petitioner knew, from his work on the four- year plan for the Division of Security, that additional administrative

    positions within that Division were not justified. That finding was later reaffirmed by a further audit performed by the DGS Bureau of Personnel Management Services. The fact that petitioner was informed by DGS officials that other positions might be established within the Department of General Services for which he may wish to apply in no way modified the original oral agreement that petitioner would be assigned to and compensated according to the position of Capitol Security Officer and perform other duties. Petitioner totally failed to establish that anyone with DGS ever "promised" to pay him any salary beyond that established for the position of Capitol Security Officer I.

    
    

12. There is no doubt that the employment agreement, and the execution of the agreement, that petitioner would occupy an established position but not perform the duties of that position was illegal and contrary to public policy and the applicable statutes and rules. However, the remedy was a discontinuance of the out-of-class duties, and that occurred on January 11, 1982. The DGS may not create a new position by appointing an employee to an existing position and assigning out-of-class duties to that employee. Likewise, the petitioner cannot cause such an event to occur by filling an established position and performing other duties. New positions must be created and existing positions must be reclassified in accordance with the existing Classification and Pay Plans established by law. To award petitioner retroactive pay and classification would thwart the entire scheme of the Classification and Pay Plans established by law and would encourage and give countenance to agencies and employees to completely disregard the law which governs all members of the Career Service System in Florida. The allowance or reward of retroactive classification and salary would permit middle-managers and applicants for positions to flaunt the required classification decisions and to dictate to the State decisions concerning the allocation of personnel resources and spending priorities.

    
    

13. Two additional statutory provisions bar the relief requested by the petitioner in this proceeding. Section 215.425, Florida Statutes, prohibits extra compensation to any employee

    "after the service shall have been rendered or the contract made; nor shall any money be appropriated or paid on any claim the subject matter of which shall not have been provided for by pre-existing laws, unless such compensation or claim be allowed by bill passed by two-thirds of the members elected

    to each house of the Legislature."

    
    

    As noted in Attorney General Opinion 82-28 (April 30, 1982), public funds are to be used only for a public purpose. It would be contrary to this policy to use public funds to give extra compensation for work which has already been performed for an agreed upon wage. The evidence in this proceeding establishes that the petitioner and the DGS mutually agreed that petitioner would perform administrative duties at the salary of a Capitol Security Officer.

    
    

14. Section 216.251(2)(b), Florida Statutes, provides that salary payment shall be made only to employees filling established positions and reaffirms the proposition that reclassification of established positions may only be accomplished when justified in accordance with established procedures for reclassifying positions. Here, petitioner was filling the established position of a Capitol Security Officer, an administrative position within the Division of Security was not justified and no procedure for reclassification of petitioner's position was ever undertaken by the DGS. Even had the DGS determined that an additional administrative position was justified and attempted to properly reclassify petitioner's position, the reclassification and salary adjustment for petitioner would have been prospective, and not retroactive, in nature.

    
    

15. In summary, petitioner accepted and agreed to an appointment into a position of Capitol Security Officer I together with the compensation provided for that position. DGS, although in violation of the statutes regulating the Classification and Pay Plans for Career Service employees, complied with the terms of the oral employment agreement and therefore does not owe petitioner anything more than that previously paid. The theory of quantum meruit does not apply to this case. Petitioner received exactly what he contracted for -- the performance of administrative duties at the salary level for a Capitol Security Officer I. There was no implied contract or obligation nor was there a breach of the original contract between petitioner and the DGS.

    
    

16. Finally, petitioner contends that the Department of Administration failed to carry out its statutory responsibilities under Sections 110.207 and 110.209, Florida Statutes, and that this entitles petitioner to relief in the form of a retroactive pay and classification adjustment. This contention, too, must fail. The evidence is clear that the DOA was uninformed and misinformed of petitioner's actual employment situation. No one caused a current correct position description of petitioner's duties to be reduced in writing and forwarded to DOA. No one requested a post-audit review or a classification or pay action. It is the employing agency's responsibility to administer the pay plan for its employees on a day-to-day basis, and it cannot be said that the DOA was in any manner remiss in the exercise of its duties in the case. The position description for the position to which petitioner was assigned contained a description of the duties normally assigned to a Capitol Security Officer.

    DGS did not change the position description to reflect petitioner's actual duties upon appointment, thus preventing the DOA from exercising its statutory authority to post-audit position classifications and to prevent the very situation giving rise to this case.

17. Even if it were sufficiently demonstrated that the DOA was remiss in its duty to oversee and supervise the operation of the Career Service System, there simply is no statutory or regulatory authority for the relief which petitioner seeks in this proceeding. The rules provide a mechanism for the correction of payroll due to clerical error (Rule 22A-2.23, Florida Administrative Code) and for adjustments when there has been an underpayment or overpayment to an employee in violation of the Personnel Rules and Regulations of the Career Service System (Chapter 22K-10, Florida Administrative Code). This latter set of rules, Chapter 22K-10, specifically excludes from its provisions situations involving classifications and reclassifications of positions in the Career Service System. See Rule 22K-10.04(4), Florida Administrative Code. Petitioner has failed to demonstrate that the Inter- governmental Personnel Act of 1970 (42 U.S.C. Section 4701 et seq) has any bearing upon the relief sought by petitioner in this proceeding.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED:

That the relief sought by petitioner from the Department of General Services and the Department of Administration be DENIED, and that the petitions filed in Case Nos. 82-2733 and 82-3381 be DISMISSED.

Respectfully submitted and entered this 14th day of October, 1983, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983.

COPIES FURNISHED:

Robert B. Beitler, Esquire Post Office Box 12921 Tallahassee, Florida 32317

Sylvan Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32301

Daniel C. Brown, Esquire General Counsel

435 Carlton Building Tallahassee, Florida 32301

Thomas M. Beason, Esquire

Suite 858, Barnett Bank Building Tallahassee, Florida 32301

Secretary Nevin Smith Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Thomas Brown, Executive Director Department of General Services

133 Larson Building Tallahassee, Florida 32301

Docket for Case No: 82-002733

Orders for Case No: 82-002733