STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. PAUL SONDEL, )

   )

   Petitioner, )

   )

   vs. )

   )

   DEPARTMENT OF EDUCATION ) CASE NO. 88-3033

   )

   Respondent, )

   and )

   )

   JOANN CARRIN, )

   )

   Intervenor. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was conducted in this case on November 1, 1988, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

   
   

   FOR PETITIONER: Mr. D. Paul Sondel, pro se

   1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721

   
   

   FOR RESPONDENT: Charles S. Ruberg, Esquire

   Assistant General Counsel Florida Department of Education Knott Building

   Tallahassee, Florida 32399-0400

   
   

   FOR INTERVENOR: Ronald G. Meyer, Esquire

   Post Office Box 1547

   2544 Blairstone Pines Drive Tallahassee, Florida 32301

   
   

   ISSUES AND INTRODUCTION

   
   

   This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are:

   
   

   1. Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision?

      
      

   2. If so, does the Petitioner in this case have standing to bring such a challenge?

   3. If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law?

All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.

FINDINGS OF FACT

Based on the evidence received at the hearing, I make the following findings of fact:

1. The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University.

   
   

2. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive.

   
   

3. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently.

   
   

4. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system.

   
   

5. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement.

   
   

6. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position.

7. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority.

   
   

8. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin.

   
   

9. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration.

   
   

10. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681.

    
    

11. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.

    
    

    CONCLUSIONS OF LAW

    
    

12. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

    
    

14. In a prehearing order issued in this case on October 1O, 1988, it is noted that "[a]bsent the filing of a motion to dismiss supported by persuasive authorities, this case will proceed to final hearing on the assumption that there is some statutory, rule or judicial decisional basis for a formal hearing in this case." That order went on to note that "the question of the Petitioner's entitlement to a formal hearing is one which is not entirely free from doubt," and invited the parties to submit briefs addressed to that issue in conjunction with their proposed recommended orders. Review of the parties' briefs and the Hearing Officer's own research have not revealed any statutory, rule, or judicial decisional basis for concluding that the Petitioner in this case is entitled to a formal hearing. To the contrary, the few authorities that bear on the matter suggest an opposite conclusion.

15. The statutory framework governing employment within the Career Service System of the State of Florida is provided in Chapter 110, Part II, Florida Statutes. Although that portion of the statutes does prescribe a hearing right for employees with "permanent status" who are suspended or dismissed [Section 110.227(5) Florida Statutes] and a hearing right if they are transferred, laid off, demoted, or suffer a reduction in pay [Sec. 110.227(4), Florida Statutes.]

    , no similar right to a hearing is provided for an unsuccessful applicant for a position. Further, under Section 110.112(6), Florida Statutes, an applicant aggrieved by an unlawful employment practice appears to be limited to filing a complaint with the Florida Commission on Human Relations. The rules implementing the Career Service System statutes do not appear to contain any provisions which could be said to create a hearing opportunity for an unsuccessful applicant for employment. See, generally, Chapter 28, F.A.C.

    
    

16. The only other statutory provision which might arguably be a source of a right to a hearing is the Administrative Procedure Act, Chapter 120, Florida Statutes. Section 120.57(1) of that Act provides that "in all proceedings in which the substantial interests of a party are determined by an agency" the hearing provisions apply. Thus, if the Petitioner's substantial interests are affected by the agency's selection of another candidate for employment, he would arguably be entitled to a hearing. However the courts have already held that the Administrative Procedure Act, standing alone, does not encompass an agency's personnel procedures. In Martin v. School Board of Gadsden County, 432 So.2d

    588 (Fla. 1st DCA 1983), the court had before it a request for a Section 120.57 hearing by three school teachers who were involuntarily transferred from one school to another under circumstances which they alleged to be "punitive and without justification." The Martin court affirmed the School Board's denial of a Section 120.57 hearing and in so doing stated: "The teachers' petition for a Section 120.57 hearing wholly fails to identify what substantial interest is affected." The Martin court also said:

    
    

    We are, in effect, asked to find that Administrative Procedures Act formal hearings are, as a matter of law, a part of a school system's personnel procedures. We will not do this. (emphasis added)

    
    

    On the basis of the foregoing language from Martin, supra, it is concluded that Section 120.57, Florida Statutes, standing alone, does not entitle an applicant for employment to a hearing to challenge an agency's implementation of its personnel procedures.

    
    

17. Even if it were to be concluded that an unsuccessful applicant was entitled to a hearing to contest an agency's hiring decision, because such an applicant has no interest in who other than himself is hired by the agency, such a challenge can only be successful where the unsuccessful applicant asserts and proves that he is the best qualified applicant and is entitled to be hired.

    Here there is no such assertion and no such proof. The most that has been asserted by the Petitioner in this case is that, absent the hiring of Ms. Carrin, the Petitioner might have been given more favorable consideration and might have been hired. Such a possibility, without more, is simply too remote and too speculative a basis upon which to challenge agency action.

    
    

18. As a final, and perhaps unnecessary matter, it is noted that the evidence in this case establishes that Ms. Carrin was eligible for the position she was hired to fill and her hiring was accomplished in substantial compliance with the applicable statutory and rule provisions.

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner.

DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033

The following are my specific rulings on all proposed findings of fact submitted by all of the parties.

Findings proposed by Petitioner:

The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.)

Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact.

Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact.

Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case.

Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details.

Further, most of the factual assertions on this page constitute inferences not warranted by the evidence.

Page 17: All of the material on this page is rejected as constituting unnecessary details.

Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details.

Further, some of the assertions on this page constitute inferences not warranted by the evidence.

Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details.

Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence.

Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence.

Findings proposed by Respondent:

The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph

17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact.

Findings proposed by Intervenor:

The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.)

COPIES FURNISHED:

Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22

Tallahassee, Florida 32303-4721

Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building

Tallahassee, Florida 32399-0400

Ronald G. Meyer, Esquire Post Office Box 1547

2544 Blairstone Pines Drive Tallahassee, Florida 32301

Sydney H. McKenzie, III, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 88-003033

Orders for Case No: 88-003033