STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PACHAREE K. HASPER, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2377RX

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 28, 1983, in Tallahassee, Florida. The issue for determination in this proceeding is whether respondent's Rule 22SM-1.12, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

Patterson & Traynham 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: Daniel C. Brown, Esquire

General Counsel

435 Carlton Building Tallahassee, Florida 32301

FINDINGS OF FACT

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

1. Prior to her termination on July 18, 1983, petitioner, Pacharee K. Hasper, was a member of the Senior Management Service employed as Chief of the Bureau of Research and Analysis with the Department of Labor and Employment Security, Division of Employment Security. She held this position for approximately one and a half years and her managerial effectiveness rating was "outstanding".

2. In December of 1982, petitioner's request for maternity leave without pay from March 14, 1983 through July 15, 1983 was approved by her then Division Director, Katie Tucker. By letter dated February 28, 1983, Ronald Villella, the new Division Director, advised petitioner that her request for maternity leave was confirmed and that

   
   

   "we will search for a suitable position to which you can be appointed upon completion of the leave period. If successful, you will be returned from leave of absence to the new assignment. If a suitable position cannot be located, you will be returned from leave of absence for one workday and then separated from the Senior Management

   Service in accordance with Senior Management Rule 22SM-1.12.

   
   

   To avoid any unauthorized overlap in the Chief of Research and Analysis position, should you require use of sick leave during the maternity leave, we are requesting Secretary Orr to authorize a 30-day overlap in accordance with Senior Management Rule 22SM-1.06(A) and Chapter 22K-9 F.A.C."

   
   

   Director Villella had previously told petitioner that he needed her position for a person who had helped with the Governor's campaign.

   
   

3. When petitioner returned to work from her maternity leave on Monday, July 18, 1983, she was not permitted to go to her prior office and was told that she would be terminated at the end of that day. Thereafter, she received a letter dated July 18, 1983, from Director Villella, reading in pertinent part as follows:

   
   

   "We have not been successful in locating a suitable position to which you could he appointed upon the expiration of your leave of absence.

   
   

   Therefore, in accordance with the terms of my letter to you dated February 28, 1983 (copy enclosed), you will be separated from the Senior Management Service in accordance

   with Senior Management Rule 22SM-1.12, F.A.C., effective 5:00 p.m. July 18, 1983.

   
   

   By copy of this letter, I am requesting our personnel officer to pay you for any unused annual leave in accordance with Senior Management Rule 22SM-1.12, F.A.C."

   
   

4. Petitioner has filed a petition with the Department of Labor and Employment Security requesting a hearing pursuant to Section 120.57(1), Florida Statutes, and seeking reinstatement to her position as Chief of the Bureau of Research and Analysis with back pay and interest.

   CONCLUSIONS OF LAW

   
   

5. In pertinent part, the Department of Administration's Rule 22SM-1.12, Florida Administrative Code, provides as follows:

   
   

   "(1)An appointee may be, separated from the Senior Management Service by any appropriate means, including resignation or retirement initiated by the appointee, or by separation initiated by the employing agency, or if the appointee held permanent status in the Career Service prior to appointment and if autho- rized by the Career Service rules, by trans- fer to the Career Service by reinstatement appointment.

   
   

   (2)An employing agency is authorized to ter- minate a Senior Management appointee at any time."

   
   

6. Inasmuch as this Rule was cited both in the letter dated February 28, 1983 and in the letter dated July 18, 1983, as the authority for separating petitioner from the Senior Management Service, petitioner is substantially affected by Rule 22SM-1.12, and has standing to challenge its validity pursuant to Section 120.56, Florida Statutes. Contrary to the contention of the respondent, the fact that the determination reached in this proceeding alone will not result in petitioner's reinstatement to her former position within the Senior Management Service does not negate her substantial interest in challenging the Rule in question. The Division of Employment Security terminated petitioner, relying upon Rule 22SM-1.12 as its authority. Whether or not that termination was proper is an issue for determination in the proceeding requested pursuant to Section 120.57(1), Florida Statutes. Still, petitioner has been substantially affected by Rule 22SM-1.12 and is entitled to a declaration of its validity or invalidity.

   
   

7. Petitioner contends that Rule 22SM-1.12, particularly subsection (2), is contrary to and conflictive with statutory authority inasmuch as it provides for no restriction on the authority of an agency to summarily terminate a senior management appointee.

   
   

8. In creating the Senior Management Service, the Legislature intended to create a system for attracting, retaining and developing highly competent senior-level managers. Section 110.401, Florida Statutes. The Department of Administration was given the authority to adopt and amend rules providing for

   
   

   "A system which shall provide for an effec- tive method of removing from the service those managers whose performance is inade- quate while, at the same time, providing protection from political abuse of employment power." Section 110.403(1)(c), Florida Sta- tutes.

   
   

   Thus, under the statutory framework, an employee within the Senior Management Service may be removed for inadequate performance or performance which is not reflective of a highly competent senior-level manager, and may not be removed for political reasons.

9. Rule 22SM-1.12 does not extend, modify or conflict with the statutory language of Chapter 110, Part IV, Florida Statutes. When read in conjunction with the statute which provides its authority, the challenged Rule is susceptible of the construction that an employing agency is authorized to terminate a Senior Management appointee only for reasons of inadequacy of performance or other reasons which do not constitute a political abuse, of employment power. The Rule in question does not authorize termination "for any reason." It authorizes termination "at any time." Presumably, that portion of the Rule is simply reflective of the fact that members of the Senior Management Service are exempt from the Career Service System and its procedural protections and time frames upon termination. That portion of the Rule does not authorize termination or separation of a Senior Management Service employee for reasons other than those permitted in Chapter 110, Part IV, Florida Statutes.

   
   

10. The fact that an agency may wrongfully or erroneously apply Rule 22SM-

1.12 in any given situation does not invalidate the Rule. The challenged Rule certainly does not mandate an application contrary to or conflictive with the enabling legislation. The remedy for an erroneous application of Rule 22SM-1.12 is a proceeding pursuant to Section 120.57, Florida Statutes, on the issue of whether the agency properly terminated the employee for reasons of inadequate performance and not for political reasons. Just as the outcome of this proceeding could not result in the automatic reinstatement of an employee, the outcome of a Section 120.57 proceeding does not result in an automatic invalidation of the Rule relied upon as authority for termination.

FINAL ORDER

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

That petitioner has failed to prove that Rule 22SM-1.12, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority and her petition is, accordingly, DISMISSED.

DONE and ORDERED this 21st day of October, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1983.

COPIES FURNISHED:

Ben R. Patterson, Esquire Carroll Webb, Executive Director 1215 Thomasville Road Joint Administrative Procedures Tallahassee, Florida 32315 Committee

120 Holland Building Daniel C. Brown, Esquire Tallahassee, Florida 32301

435 Carlton Building

Tallahassee, Florida 32301 Liz Cloud, Bureau Chief

Administrative Code Section

Secretary Nevin Smith Department of State Department of Administration 1802 Capitol

435 Carlton Building Tallahassee, Florida 32301 Tallahassee, Florida 32301

Docket for Case No: 83-002377RX

Orders for Case No: 83-002377RX