STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE GOSSETT, )

)

Petitioner, )

)

vs. ) Case No. 98-3903RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

On October 7, 1998, a formal administrative hearing was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grover C. Freeman

Jon M. Pellett

Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

For Respondent: Thomas W. Caufman

Senior Attorney

Agency for Health Care Administration 6800 N. Dale Mabry Highway, Suite 220 Tampa, Florida 33614

STATEMENT OF THE ISSUE

Whether the Respondent’s Career Service Grievance Policy Statement #92/93-HR-2, is an invalid exercise of delegated legislative authority, based on an alleged conflict with Section 447.401, Florida Statutes.

PRELIMINARY STATEMENT

By Petition to Invalidate an Existing Agency Rule filed with the Division of Administrative Hearings on August 28, 1998, the Petitioner asserts that the Respondent’s Career Service Grievance Policy does not comply with the requirements of Section 447.401, Florida Statutes, and is therefore invalid. By Order of Assignment dated September 8, 1998, the matter was assigned to the Administrative Law Judge, who scheduled the hearing for October 7, 1998.

Subsequent to the completion of the hearing, the Petitioner requested that the case be abated pending resolution of a personal health situation. The request was granted. Thereafter, the health situation passed and the parties notified the Administrative Law Judge that proposed orders would be filed by December 10, 1998. The Petitioner filed a Proposed Recommended Order. The Respondent filed a Post-Hearing Memorandum of Law.

FINDINGS OF FACT

1. The Agency for Health Care Administration (Respondent) is a state agency and a public employer.

2. The Respondent has adopted a grievance policy providing for the resolution of employment disputes within the agency. The policy provides that an aggrieved employee may have the grievance heard by a neutral committee. The committee makes a recommendation, which is subject to review first by a designee of the agency head, and then directly by the agency head. According to the policy at issue in this case, the agency head’s decision

   is generally the final step in the grievance process. Under some circumstances not found in this case, decisions may be appealed to the Public Employees Relations Commission.

3. Another procedure permits some career service employees represented by a collective bargaining agent to utilize a grievance process set forth under the master contract between the state and the bargaining agent. The union grievance provides that the agency head’s decision is appealable to the state labor relations director who has final authority over the dispute.

4. On December 30, 1997, Diane Gossett (Petitioner), a career service employee of the Respondent, received a written reprimand from her supervisor who alleged Ms. Gossett’s conduct was inappropriate. The details of the alleged conduct were not offered at hearing.

5. Ms. Gossett is an "excluded employee" under the State Master Contract, and therefore is not entitled to use the union grievance procedure.

6. As provided in the Respondent’s grievance policy at issue in this case, Ms. Gossett filed a grievance challenging the written reprimand, and seeking to have it removed from her personnel file.

7. A neutral grievance committee was appointed which reviewed her grievance. The committee recommended that the reprimand be removed from the Petitioner’s personnel file.

8. The agency head’s designee reviewed and rejected the committee recommendation. The agency head ratified the designee’s decision.

9. The Petitioner then challenged the agency’s compliance with personnel rules by filing a request for review with the Department of Management Services. The Department found no deviation from agency rules and refused the Petitioner’s request for additional review.

10. The Petitioner then filed her Petition to Invalidate an Existing Agency Rule with the Division of Administrative Hearings.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.56, Florida Statutes.

12. All parties have standing to participate in this proceeding.

13. The written reprimand itself is not at issue in this proceeding. The committee’s review of the reprimand, the designee’s rejection of the committee recommendation, and the agency head’s concurrence with the designee’s rejection of the committee recommendation are likewise not at issue in this proceeding. Whether or not the Petitioner's policy has been appropriately adopted by rule is not at issue.

14. The sole issue presented for determination is whether, by failing to provide for a final decision by an impartial neutral, the Respondent’s grievance procedure is an invalid exercise of delegated legislative authority. The burden is on the Petitioner to establish, by a preponderance of the evidence, the invalidity of the policy. The burden has not been met.

15. Section 120.52(8), Florida Statutes, in relevant part, provides as follows:

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:

       * * *

       1. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

       2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

          
          

16. The Petitioner alleges that the Respondent’s grievance policy is contrary to a statutory requirement set forth in Section 447.401, Florida Statutes, that the "grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties. "

    Review of the cited statute indicates that the statute is inapplicable to this dispute.

17. Section 110.201(1), Florida Statutes, provides the basis for the adoption of uniform personnel rules. Rule 60K-

    9.004, Florida Administrative Code, sets forth the uniform grievance procedures followed by most state agencies and is specifically referenced by the Respondent in the grievance policy at issue in this case. Rule 60K-9.004, Florida Administrative Code, does not reference Section 447.401, Florida Statutes, as its underlying authority.

18. Section 447.401, Florida Statutes, addresses grievance procedures created by a public employer and a collective bargaining agent to address issues related to interpretation or application of the bargaining agreement, and provides as follows:

    447.401 Grievance procedures.--Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties; however, when the issue under appeal is an allegation of abuse or neglect by an employee under s. 415.1075 or s. 415.504, the grievance may not be decided until the confirmed report of abuse or neglect has been upheld pursuant to the procedures for appeal in ss. 415.1075 and

    415.504. However, an arbiter or other

    neutral shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement. If an employee organization is certified as the bargaining agent of a unit, the grievance procedure then in existence may be the subject of collective bargaining, and any agreement which is reached shall supersede the previously existing procedure. All public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or

    nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures. (emphasis supplied)

19. Section 447.401, Florida Statutes, requires development of grievance procedures by between a public employer and a bargaining agent, and is clearly limited to settlement of "disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement." The grievance at issue in this case is not related to a dispute involving the interpretation or application of a collective bargaining agreement.

The Petitioner suggests that the last sentence of Section 447.401, Florida Statutes, results in a requirement that all agency grievance procedures provide for appointment of an impartial neutral with final authority to resolve the dispute. The cited sentence provides only that "[a] career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section" in addressing a grievance, and that the choice of one option forecloses use of the others. There is no evidence suggesting that the Legislature

intended the cited language to reach the result proposed by the Petitioner.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, the Petitioner’s Petition to Invalidate an Existing Agency Rule is DISMISSED.

DONE AND ORDERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1999.

COPIES FURNISHED:

Grover C. Freeman Jon M. Pellett

Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

Thomas W. Caufman, Senior Attorney Agency for Health Care Administration 6800 North Dale Mabry Highway, Suite 220 Tampa, Florida 33614

Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Sam Power, Agency Clerk

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Carroll Webb, Executive Director

Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 98-003903RX

Orders for Case No: 98-003903RX