STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. KRASNOSKY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1040RX

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 2, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

307 West Chase Street Pensacola, Florida 32501

For Respondent: Daniel C. Brown, Esquire

435 Carlton Building Tallahassee, Florida 32301

BACKGROUND

On April 7, 1983, Petitioner, David J. Krasnosky, filed a petition with the Division of Administrative Hearings challenging the validity of Rule 22A- 7.11(4)(d), Florida Administrative Code, and contending that it constituted an invalid exercise of legislative authority. The rule generally describes, among other things, the manner in which permanent status employees of the State of Florida shall be ranked on a layoff list whenever layoffs are necessitated by a shortage of funds. Petitioner, a former employee of the Department of Labor and Employment Security, generally contended the rule was in conflict with Subsection 110.227(3)(b) , Florida Statutes, in that it failed to prescribe a layoff formula having uniform application to all personnel affected by the layoff action.

On April 15, 1983 the petition was found to comply with the requirements of Section 120.56, Florida Statutes, and was assigned to the undersigned hearing officer for further proceedings. By notice of hearing issued that same date, a final hearing was scheduled for May 2, 1983 in Tallahassee, Florida.

At the final hearing Petitioner presented the testimony of Sandra G. Stevens, Chief of Personnel and Training for the Department of Labor and Employment Security, and offered Petitioner's Composite Exhibit l which was received in evidence. Respondent offered Respondent's Exhibits 1-3; all were received in evidence.

There was no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were filed by the parties on May 10, 1983 and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Rule 22A-7.11(4)(d) Florida Administrative Code, is an invalid exercise of legislative authority.

Based upon all of the evidence, the following Findings of Fact are determined:

FINDINGS OF FACT

1. Petitioner, David J. Krasnosky, was employed by the Department of Labor and Employment Security from July l, 1973 until March 31, 1982 in its Pensacola, Florida office. He was initially employed as an employment counselor I from July l, 1973 until October, 1974. He was then promoted to an employment specialist I. He remained in that position until January, 1980 when he accepted a position in the next lower pay grade of employment interviewer. He attained permanent status for all three positions held.

   
   

2. In late 1981 or early 1982, the Department of Labor and Employment Security suffered a loss in federal funding which required that the Department lay off a number of persons holding the position of employment interviewer. There were 23 such positions within the area, and after a layoff list was compiled, Petitioner was one of those who were laid off at the end of March, 1982.

   
   

3. Respondent, Department of Administration, has promulgated rules governing the manner in which permanent status employees shall be ranked on a layoff list whenever layoffs are necessitated by a shortage of funds. Under a formula prescribed in Rule 22A-7.11(4)(d), Florida Administrative Code, permanent status employees in the affected class are ranked according to the number of retention points derived from seniority and performance. The formula provides that an employee shall be given one point for each month of satisfactory continuous state employment, regardless of class. The employee is also given "performance evaluation retention points" which are credited for each month of service in the affected class. These include one and one-half points for each month of service in which the employee was rated outstanding or above satisfactory, and one point for each month of service where the employee was rated satisfactory. Therefore, an employee is eligible to receive seniority points for each month of continuous state employment, regardless of class, while performance points are awarded only for those months that the employee has worked in the class affected by the layoff.

   
   

4. The application of this formula resulted in Krasnosky receiving no performance retention points for the period of July 1, 1973 through December, 1979, since he did not work in the position of employment interviewer. Instead, he received such points only for the months of January, 1980 through March, 1982. He also received seniority points (except for several months when he took leave without pay) for all months of continuous state employment. Despite his long tenure with the State, other employment interviewers with less continuous state employment received more retention points than Krasnosky because of longer service in the class of employment interviewer. For this reason, he contends

   the rule is applied unfairly and conflicts with the general law that requires the Department to adopt a formula having "uniform application among all employees in the competitive area."

   
   

5. Rule 22A-7.11 was originally adopted by the Cabinet, sitting as the Administration Commission, in 1976. It has been construed in a consistent fashion since that date. The rule has been amended on several occasions, and no objections there to have ever been filed by the Joint Administrative Procedures Committee, which reviews all rule amendments.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.56, Florida Statutes.

   
   

7. It has long been held that the burden is upon one who attacks a rule to show that the rule is an invalid exercise of legislative authority. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). Therefore, Petitioner has the burden of showing that the rule in question is contrary to or inconsistent with the terms of Subsection 110.227(3), Florida

   
   

8. Petitioner generally contends that the rule conflicts with the statute it is designed to implement. He points out that the rule now unfairly rewards mediocrity and punishes performance since the employee who remains within the same class accumulates retention points at a faster rate than one who is promoted or who seeks to occupy a different position even though his performance in the different class may be exemplary. Because of this, Petitioner contends that the formula is not uniformly applied to all employees within the affected class, and therefore the rule constitutes an invalid exercise of delegated legislative authority. However, Petitioner has cited no decisional law or final agency orders that support his position.

   
   

9. Respondent counters by claiming that the formula in question has been uniformly applied among all employees in the same competitive class, and is clearly consistent with the terms of the statute. It also points out that great deference should be accorded to rules which have been in effect over an extended period of time and to the meaning assigned to them by officials charged with their administration. It relies upon Pan American World Airways v. Public Service Commission, 427 So.2d 716 (Fla. 1983), and cases cited therein to support this premise. It further cites Jax Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, 388 So.2d 1306 (Fla. 1st DCA 1980) for the holding that the presumption of a rule's validity gains added weight from having been codified in the Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature or its Administrative Procedures Committee. Accordingly, the Department argues that because it accorded the same interpretation to Rule 22A-7.11(4)(d) over the years, and the rule has been filed with the Joint Administrative Procedures Committee since 1976 without objection, the petition should be denied.

   
   

10. The implementing statute provides as follows:

    
    

    (3)(b) Layoff procedures shall be developed to establish the relative merit and fitness of employees and shall include a formula for uniform application among employees in the competitive area, taking into consideration

    the type of appointment, the length of ser- vice, and the quality of performance.

    
    

    Rule 22A-7.11(4)(d) , which contains the challenged formula, provides as follows:

    
    

    (4)(d) Within the competitive area, all employees who have permanent status in the affected class shall be ranked on a layoff list based on the total of retention points derived as follows:

    1. Length-of-service retention points shall be based on:

       1. One (1) point for each month of contin- uous state employment.

       2. Continuous state employment for the pur- pose of this section shall mean employment

          in a position in the Career Service, or in a position which was covered by the 1967 revisions of Chapter 110, Florida Statutes, without a payroll break which was not covered by a leave of absence with or with- out pay approved by an agency head prior to January 1, 1968, and after January 1, 1968, in accordance with the State Personnel Rules and Regulations, except that an employee who resigns from one agency to accept employment with another state agency is not considered to have a break in service unless such break is in excess of 31 calendar days.

    2. Performance evaluation retention points earned in the Career Service for the class shall be based on:

       1. One and one half (1.5) points shall be credited for each month of service in which the employee was rated Outstanding or Above Satisfactory.

       2. One (1) point shall be credited for each month of service in which the employee was rated Satisfactory.

       3. The same provisions for calculating performance evaluation retention points shall be utilized to count service in a class at the level; or above the class in which the employee held permanent status within a series when the employee requests a demotion or reassignment

          in lieu of layoff to a position in a class at the level or below the class in which the employee held permanent status within a series.

       4. Special performance evaluations, as provided in Section 22A-9.03(5) , Personnel Rules and Regulations, which have been prepared within three (3) months of the layoff shall not be used in the calculation of retention points.

       5. An employee who has never been evaluated in the class shall be considered to have

          satisfactory service in the class.

       6. Each period covered by a performance evaluation shall be the period reflected on the performance evaluation form. Time spent in the class since the last performance evaluation shall be considered at the same performance level as the last performance evaluation.

       7. If there were no formal employee per- formance evaluation programs in effect prior

          to July 1, 1968, which would apply to employees in the competitive area, all such service shall be credited as satisfactory service for affected employees.

          
          

11. The nub of the controversy is whether Petitioner's interpretation of the implementing statute, or that favored by Respondent, is controlling. Petitioner construes the statute to require that quality of performance points be uniformly applied to all employees, regardless of class, and that the rule be worded in a consistent fashion. But if that interpretation is not the only permissible one, the agency's construction of the statute, and interpretive rule, must be sustained. Department of Administration, et al. v. Nelson, 424 So.2d 852, 854 (Fla. 1st DCA 1982). This is true even if the interpretation espoused by Petitioner seems more preferable, and that of the agency tends to work unfairly towards him. State Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981). Here, Petitioner has not demonstrated that the contemporaneous construction given the statute in the Department's rule is clearly erroneous, Pan American, 427 So.2d at 719, or that it has no rational basis. Jax Liquors, 388 So.2d at 1307-1308. This being so, Petitioner has failed to meet his burden, Agrico, 365 So.2d at 763, and the petition must be denied.

Wherefore, in consideration of the above, it is

ORDERED that the petition to have Rule 22A-7.11(4)(d), Florida Administrative Code, declared an invalid exercise of delegated legislative authority be DENIED.

DONE and ENTERED this 18th day of May, 1983 in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1983.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

307 West Chase Street Pensacola, Florida 32501

Daniel C. Brown, Esquire

435 Carlton Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, The Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-001040RX

Orders for Case No: 83-001040RX