Judges: K. N. AYERS
Agency: Water Management Districts
Latest Update: Jul. 18, 1985
Summary: Southwest Florida Water Management District (SWFWMD) employee failed to prove that his position was wrongfully discontinued or that he was wrongfully terminated from his position.
85-1176.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS|
WILLIAM H. MATHIAS, )
)
Petitioner, )
)
)
vs. ) CASE NO. 85-1176
) SOUTHWEST FLORIDA WATER ) MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on June 26, 1985, at Brookeville, Florida.
APPEARANCES
For Petitioner: Raymond A. Rea, Esquire
Post Office Box 251
Boynton Beach, Florida 33425
For Respondent: John-Edward Alley, Esquire
and Joseph W. Carvin, Esquire Post Office Box 1427
Tampa, Florida 33601
By Petition for Initiation of Formal Proceedings dated March 12, 1985, William H. Mathias, Petitioner, by and through his attorney, contests the dismissal from his employment with the~=a~8Southwest Florida Water Management District (SWFWMD), Respondent. As grounds therefor it is alleged that the stated reason for his termination, reduction in force, was a pretext for Petitioner's termination and that public employees must be terminated for just cause, and no such just cause existed.
Petitioner's subsequent Motion to Change Style and Assign Burden of Proof dated April 1985, was opposed by Respondent. At a telephone conference call on June 17, 1985, the parties argued
their respective positions and an order was entered establishing the order of proceeding but no ruling was made on which party has the burden of proof. For reasons more fully stated in the Conclusions of Law, the Petitioner retains this ultimate burden.
At the hearing Petitioner called eight witnesses, including Petitioner; Respondent called two additional witnesses; and 34 exhibits were marked for identification. Objection to Exhibit
27 on grounds it was not on the list of documents submitted in response to Interrogatories was sustained, and Exhibits 29 and
33 were never offered into evidence. All other exhibits were admitted into evidence.
Proposed findings and conclusions have been submitted by the parties. To the extent the proposed findings are included herein, they are adopted; otherwise, they are rejected as not supported by the evidence, mere recitation of the testimony of witnesses, cumulative, immaterial, or unnecessary to the conclusions reached. Proposed conclusions of law not incorporated herein are rejected or are not considered applicable to this case.
FINDINGS OF FACT
William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade
At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees.
Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD.
On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant.
Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche.
Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction.
Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action.
Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By
letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition.
Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction over the parties to, and the subject matter of, these proceedings.
Petitioner's contention that Respondent has the burden of proof in these proceedings is without merit. SWFWMD employees are not covered by the State Career Service System laws or regulations. All employees are protected from unlawful discrimination by reason of age, sex, race, religion, marital status, color, handicap, or national origin. Section 760.10, Florida Statutes. Petitioner does not fit into one of those categories or claim he was thus discriminated against in his employment.
Section 373.079(4)(a), Florida Statutes:
The governing board of the district is authorized to employ an executive director and such engineers, other professional persons, and other personnel and assistants as it deems necessary and under such terms and conditions as it may determine and to terminate such employment. The a governing board may delegate all or part of its
authority under this paragraph to the executive director.
Nowhere in this authorization to terminate employees does the statutes specify just cause be shown before an employee is terminated.
Section 373.044, Florida Statutes, in authorizing the Governing Board to make and adopt reasonable rules and regulations which are consistent with law, provides in pertinent part:
In administering this chapter, the governing board of the district is authorized to make and adopt reasonable rules, regulations and orders which are consistent with law; and such rules, regulations and orders may be enforced by a mandatory injunction or other appropriate action in the courts of the state. Rules relating to personnel matters shall be made available to the public and affected persons at no more than cost but need not be published in the Florida Administrative Code or the Florida Administrative Weekly. (This last sentence was added by Laws of Florida 84-341.)
Administrative Directives involving personnel matters were admitted into evidence as Exhibits 3 and 4. These Directives were not promulgated or formally adopted by the Board of Governors but appear to be consistent with the policies (unwritten) of the Board. Because they were not adopted or promulgated by the Board, their efficacy as rules is questionable. Despite this, these Directives were followed in this case. Absent properly adopted rules, the agency may defend its policies on an ad hoc basis in Section 120.57(1) proceedings. South Florida Water Management Distict v. Calawe 459 So. 2d 390 (Fla. 4th DCA 1984).
Petitioner also attempts to put himself in the same posture as one who was discharged for impermissible reasons, such as those contained in the State's Civil Rights Act, Section 760.10, Florida Statutes. Even in those cases, the employee has the ultimate burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's rejection. Should
Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).
To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254.
Not only did Petitioner fail to establish a prima facie case as above-described, but also the simple answer to this position of the Petitioner is that this is not a discrimination case and those rules do not apply. Petitioner has not been terminated by reason of any of those impermissible reasons listed in Section 760.10, Florida Statutes, and he has established no grounds upon which relief can be granted under this statutory provision.
SWFWMD employees are in a less protected category than are state employees in Senior Management positions whose jobs have been removed from career service protection. Those employees may be demoted, transferred, or dismissed when their performance is "inadequate." Section 110.403(1), Florida Statutes, provides the Department of Administration shall adopt rules providing for, inter alia:
(c) A system which shall provide for an effective method of removing from the service those managers whose performance is inadequate while, at the same time, providing protection from political abuse of employment power.
Rule 22SM-1.12 relating to separation of Senior Management appointees appears even broader than the statute by providing in subsection (2):
An employing agency is authorized to terminate a Senior Management appointee at any time.
That this employee condition has existed at SWFWMD for an extended period is further demonstrated by the testimony of
two of Petitioner's witnesses. Both of these witnesses were former employees of SWFWMD who resigned after being transferred from positions they had held for extended periods to lesser positions. Similarly, William Sietman, who was Director, Field Operations Division, during the period Petitioner was assigned to -his division, was transferred to a lesser position at SWFWMD because the Board did not like the way he was running the division and summarily ordered his transfer.
This case is entirely different from those cases involving dismissal of a state employee who is a member of the Career Service System or whose job is otherwise protected. The covered employee may be disciplined only upon a showing of just cause, and the employer has the burden of proving just cause for the dismissal or other disciplinary action taken. However, in the event of a reduction of force, where the agency has to pare its roster of employees due to budgetary or other limitations in the number of employees it may keep on the payroll, career service employees may be laid off without other just cause being present. In those cases, Chapter 22A-7, Florida Administrative Code, establishes priorities for retention of employees in the competitive area and guidelines to determine the order in which employees will be laid off until the required number of layoffs is reached. Again, such specific rules are not provided for SWFWMD employees.
Exhibit 4, dated 8/12/80, established personnel procedures which, inter alia, involve terminations in which is included reduction in work force. This Directive was promulgated while Petitioner was Director of Employee Relations and established that position as the one through which all personnel actions would be coordinated and forwarded to the Executive Director for approval. Nowhere on the face of this directive appears the imprimatur of the Board. An inference that all of the procedures outlined in Exhibit 4 may not adequately or accurately express the policy of the SWFWMD may be drawn from Petitioner's transfer from that position to the position in the Division of Field Operations. Be that as it may, Section D.2. of Exhibit 4 provides:
If a reduction in work force is required due to a decrease in the district's work load or for any other reason, employees may be given leave without pay, as required by Policy
225-022, during the layoff. Layoffs will be based on the employee's length of service,
performance evaluations and specific needs of the District.
The abolition of Petitioner's position in field operations complied with the above-quoted policy. But for Petitioner's testimony that he felt the abolition of his job was influenced because he had given personnel advice to SWFWMD employees, all other witnesses testified Petitioner's job performance was satisfactory and that the position was abolished solely because it was not needed. That testimony was given greater credence by Sietman's initial response to the proposal to transfer Petitioner to his division and by the testimony of section chiefs that they prepared the budgets for their sections before, during and after Petitioner was assigned to field operations with little change in the amount of their time required for this task. The coordination of these budgets was done with the Director before Petitioner was assigned to Field Operations and again after Petitioner left without overburdening the Director.
From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that his position at SWFWMD was wrongfully discontinued or that he was wrongfully dismissed from his employment at SWFWMD. It is
RECOMMENDED that a Final Order be entered dismissing the claim of William H. Mathias that he was wrongfully dismissed from his employment at SWFWMD.
ENTERED this 18th day of July, 1985, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 18th day of July, 1985.
COPIES FURNISHED:
Raymond A. Rea, Esq. Post Office Box 251
Boynton Beach, Florida 33425
John-Edward Alley, Esq. And Joseph W. Carvin, Esq. Post Office Box 1427 Tampa, Florida 33601
Gary W. Kuhl, Executive Director Southwest Florida Water Management
District
2379 Broad Street
Brooksville, Florida 33512
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AGENCY FINAL ORDER
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=
BEFORE THE GOVERNING BOARD OF
THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
WILLIAM H. MATHIAS,
Petitioner,
ORDER NO. 85-10
v. DOAH Case No. 85-1176
SWFWMD Case No.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/
FINAL ORDER
This matter has come before the Board of Governors of the Southwest Florida Water Management District ("the Board") upon a recommended order issued by DOAH Hearing Officer K. N. Ayers on a petition filed by William H. Mathias. Mr. Mathias was terminated from his employment by the District on August 20, 1984, by Executive Director Gary Kuhl, as a result of the elimination of his position in the Field Operations Department. Mathias sought and obtained informal proceedings before the Personnel Committee of the Board, which affirmed Mathias' termination. On March 12, 1985, Mathias petitioned this Board for a formal hearing pursuant to Section 120.57(1) Fla. Stats., alleging that his termination was a "pretext." His petition for a hearing was granted by the Board on April 3, 1985. A hearing was held on June 26, 1985 before DOAH Hearing Officer K. N. Ayers, at which the parties were permitted to submit evidence in support of their respective positions. The hearing officer issued a recommended order on July 18, 1985. Petitioner has filed exceptions to the hearing officer's recommended order, which we now consider pursuant to Section 120.57(1)(b)9., Fla.
Stats. For the reasons expressed below, we deny the Petitioner's exceptions numbered l(b) through l(e) and 2 through
4, and we grant Petitioner's exceptions l(a) and l(f). However, because our granting of Petitioner's exceptions l(a) and l(f) does not affect our resolution of this case, and because the hearing officer's findings of fact and conclusions of law are supported by competent substantial evidence and are fully in accordance with the law, we hereby adopt the hearing officer's findings and conclusions of law in their entirety, and affirm the elimination of Petitioner's position and his resulting termination of employment.
Exception l(a)
Because Mathias was not a career service, contract or "tenured" employee, but was employed "at will," the termination of his employment need not have been "justified" in the same sense that the termination of a tenured employee would have to be justified. The record evidence makes clear that Mathias's termination was the result of the elimination of his position, and that it was sound, responsible management to eliminate that position. The Board has not adopted any policy or other Agency statement which was used to "justify" the elimination of the position in question. We therefore grant this exception to the extent that we so find. We note, however, that the granting of this exception does not require setting aside the hearing officer's conclusions of law or in any other way affect the outcome of this case.
Exceptions l(b) through l(e)
The additional findings of fact which Mathias asks us to make in his Exceptions l(b) through l(e) are not supported by competent substantial evidence, much less by the weight of the evidence. In addition, we agree with Respondent that Exception l(c), in which Mathias asks us to find that certain other employees of the District were removed from their positions by the Executive Director because they were "no longer acceptable" to this Board are irrelevant and immaterial, since the matter now before the Board involves only the elimination of Mathias's position with the District. Similarly, it matters not how many employees of the District have previously been discharged or demoted as a result of the elimination of their positions, or indeed, if any employees have previously lost their positions in such circumstances prior to Mathias. The hearing officer found, and we agree, that Mathias's position was properly eliminated and he was properly terminated.
Mathias's Exception l(e), in which he proposes a finding that the elimination of the position cannot be "justified" because the District had a budget surplus in July and August of 1384, is specifically rejected. The record makes clear, and the hearing officer found, that during the budget development process in 1984, members of this Board encouraged the staff to eliminate any -existing or requested positions which were not necessary. The hearing officer found that, in Mathias's case, the Executive Director did exactly that. We need not, be-facing virtual "bankruptcy" before taking action to eliminate the unnecessary expenditure of any District funds, which are in reality the funds of the taxpayers, for any purpose. We entirely agree with the statement in the Respondent's Memorandum in Response to Petitioner's Exceptions that under no circumstances can it be considered "justified" to spend the taxpayer's money on a salary and fringe benefits to fund a position which is entirely unnecessary.
For these reasons, Mathias's Exceptions l(b) through l(e) are denied.
Exception l(f)
We grant Mathias's Exception l(f) because the additional findings proposed by Mathias were uncontradicted on the record. However, for the reasons expressed above and for the reasons expressed in Respondent's Memorandum in Response to Petitioner's Exceptions, these additional findings do not affect our ultimate decision in this matter.
Exception 2
In this Exception, Mathias asks the Board to reject virtually all the conclusions of law made by the hearing officer, and to substitute instead his own proposed conclusions of law. Mathias has not articulated any specific reason to suggest that the hearing officer's conclusions of law are incorrect or contrary to applicable legal precedent. Mathias suggests that he was terminated as a pretext for giving certain personnel-related advice. The hearing officer found that he was not, and correctly applied the analysis of Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) in rejecting that contention. Mathias's Exception No. 2 is accordingly denied.
Exception 3
In this Exception, Mathias first asks us to reject the hearing officer's finding that the "reduction in force" language of Administrative Directive 80-74 was "followed" in this case.
That finding of the hearing officer was supported by competent substantial evidence, and therefore we cannot set it aside even if we were disposed to do so, which we are not.
The language at issue in Administrative Directive 80-74 states that in the event of a "reduction in work force,"
layoffs will be based on the employee's length of service, performance evaluations and specific needs of the District.
What transpired in the case of Mr. Mathias was not a "reduction in work force" in the sense that a number, but less than all, of the employees from a single job classification were laid off.
In such a case, it might well be appropriate to consider relative seniority and performance evaluations in determining an order of layoff from among the incumbents of the position in question. However, where a position itself is eliminated, leaving no incumbents in that position, there need be no consideration of the seniority or performance evaluations of the incumbent or incumbents in that position. The Executive Director need not compare the seniority of a file clerk with the seniority of a chemist, or compare the performance evaluations of a mechanic in fleet maintenance with those of a personnel director. We therefore agree with the hearing officer that elimination of Mathias's position complied with the reduction in force language of Administrative Directive 80-74.
We therefore deny Mathias's Exception 3. Exception 4
We deny Exception 4 for the reasons expressed in Respondent's Memorandum in Response to Petitioner's Exceptions. Chapter 373, Florida Statutes, authorizes the District to appoint and remove employees without any type of career service limitation. For the proposition that he is., nevertheless, protected by a type of job "tenure," Mathias relies on Administrative Directive 80-74. We note that the District's Administrative Directives are not policies adopted by this Board. Moreover, even if the Directives were policies adopted by this Board, we note specifically that the language in the section titled "Probationary Period," which provides that an employee may be dismissed "for reasonable cause" on or before
the completion of his probationary period, does not, on its face, give District employees tenure in the sense that they may not be terminated without "just cause" or "reasonable cause. n If it were so construed, it would be contrary to the District's policy of not creating any type of civil service or tenure system for its employees.
In various policies adopted by the Board through the years, the Board has expressed the policy of treating all its employees fairly and without discrimination. It remains the Board's policy to do so, and to provide a grievance procedure to its employees. This is not the same as providing that employees may only be terminated for "cause." Were this Board to adopt or approve a policy that District employees could only be terminated for "cause," the result would be to grant an enforceable "property right" to District employees, and to entitle terminated District employees to sue the District in federal court for deprivation of that property right. The creation of such a property right, and the corresponding legal obligations and potential legal liabilities which would be imposed upon the District if it created such rights, are not in the best interests of the District, those it serves and the taxpayers. While the District is committed to treating its employees fairly and without discrimination of any kind, and while the Board fully expects that the Executive Director will not exercise his hiring and firing authority arbitrarily, the Board is unwilling to commit itself to the legal obligations which would arise if it were to create a "property interest" among its employees and require that District employees could only be terminated for "cause." The District remains committed to the principle that its employees, other than contract employees who are employed pursuant to the terms of those contracts, are employed at the will of the Executive Director.
Administrative Directive 80-74 does not provide otherwise; if it does, we disavow it.
For these reasons, and because this case involves a decision to eliminate a position (compare City of Jacksonville v. Smoot, 83 Fla. 579, 92 So. 617 (Fla. 1922) and similar cases cited in Respondent's Memorandum in Response to Petitioner's Exceptions), we agree with the hearing officer's conclusion that Mathias bore the burden of proof in the underlying proceeding to establish that the elimination of his position was for some reason improper, and that he failed to do so.
Moreover, even assuming the Respondent itself bore the burden of proof in this proceeding, the Respondent amply carried that burden. As found by the hearing officer, virtually every witness testified that Mathias's position was eliminated because it was unnecessary. When an individual's co-employees, his then department director, the present department director, and the Executive Director, are all in agreement that a position is not justified because the duties were previously performed by others, and could (and were) reassumed by others with little or no effect, and where Mathias offered no evidence to show that his position was in fact justified, there can be no question but that the Respondent carried any burden of proof it might have had to justify the elimination of the position. For the reasons stated above and for the reasons set forth in Respondent's Memorandum in Response to Petitioner's Exceptions, we deny Mathias's Exception 4.
Accordingly, Respondent has shown that the Petitioner's position was unnecessary and that it was eliminated because it was determined to be unnecessary and not because of any pretextual reason. Petitioner has failed in his attempt to show that there was any improper motivation for the elimination of his position, or any other impropriety of any kind. The findings of fact and conclusions of law of the hearing officer, contained in the recommended order attached hereto, are adopted in their entirety for the reasons expressed herein, and Petitioner's claim that he was wrongfully dismissed from his employment is dismissed.
Ordered this 4th day of September, 1985.
SOUTHWEST FLORIDA.WATER MANAGEMENT DISTRICT
Bruce A. Samson, Chairman
ATTEST:
Mary A. Kumpe, Secretary Filed on Clerk, SWFWMD 9-25-85
N. Louise Rigby
As Clerk
Docket for Case No: 85-001176
Orders for Case No: 85-001176
| Issue Date |
Document |
Summary |
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Sep. 04, 1985 |
Agency Final Order
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Jul. 18, 1985 |
Recommended Order
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Southwest Florida Water Management District (SWFWMD) employee failed to prove that his position was wrongfully discontinued or that he was wrongfully terminated from his position.
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