STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAVIS R. GEORGALIS,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 03-4665SED

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a final hearing in this case on April 15, 2004, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: M. Stephen Turner, Esquire

Martin A. Fitzpatrick, Esquire Broad and Cassel, P.A.

215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302

For Respondent: Robert M. Burdick, Esquire

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399

Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in the case is whether Petitioner’s reclassification and transfer from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001), was valid and lawful. All citations are to Florida Statutes (2001) unless otherwise stated.

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Transportation (Respondent) sought to reclassify the position occupied by Marvis R. Georgalis (Petitioner) from the career service system to the selected exempt service pursuant to Section 110.205(2(x), Florida Statutes. Petitioner did not consent to the position reclassification.

Petitioner was notified by Respondent's letter dated July 21, 2003, that she could file a petition challenging the

reclassification of her position. Petitioner timely petitioned for review of the reclassification. Respondent forwarded the petition to DOAH where the matter was scheduled and final hearing conducted.

At the final hearing, Petitioner testified on her own behalf and presented testimony of one additional witness. Petitioner also submitted five exhibits, which were accepted into evidence. Respondent presented the testimony of one

witness and submitted 17 exhibits, which were admitted into evidence.

A Transcript of the final hearing was filed on May 17, 2004. The parties requested and were granted leave to file proposed recommended orders 30 days after the filing of the transcript. Both parties filed Proposed Recommended Orders, which have been reviewed and addressed to the extent possible in this Recommended Order.

FINDINGS OF FACT

1. Prior to July 1, 2001, Petitioner was a career service employee of Respondent, for whom she had worked since 1988. On that date, Petitioner was involuntarily reclassified as a selected exempt employee of Respondent.

2. Both before and after her reclassification, Petitioner’s job required her to act as a liaison and contract administrator for technical consulting contracts relating to Respondent’s information technology systems.

3. Respondent contends that it reclassified Ms. Georgalis to selected exempt service in July 2001 as a result of amendments to Section 110.205(2)(x), Florida Statues. Consequently, the Section then read, in pertinent part, as follows:

   (2) EXEMPT POSITIONS.--The exempt positions that are not covered by this part include the following:

   * * *

   
   

   (x) Effective July 1, 2001, managerial employees, as defined in s. 447.203(4), confidential employees, as defined in

   s. 447.203(5), and supervisory employees who spend the majority of their time communicating with, motivating, training, and evaluating employees, and planning and directing employees' work, and who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action, including all employees serving as supervisors, administrators, and directors.

   
   

4. Respondent reclassified all persons who were "Level VI managers and Level 5 supervisors" to select exempt service as a result of the content of Section 110.205(2)(x), Florida Statutes. Respondent did not confirm that the responsibilities and duties of the position occupied by Petitioner necessitated reclassification to select exempt employee status.

5. Petitioner’s job duties were substantively different from other persons within the DP Level VI occupational group.1 Petitioner did not primarily oversee the work of Respondent's employees as required by the career service exemption. Moreover, she did not even oversee the work of non-governmental supplemental or augment persons who were providing services that could otherwise be provided by departmental employees, assuming such oversight is relevant to the statutory exemption. Petitioner's role was primarily that of liaison and coordinator

   between Respondent's management and end users of Respondent’s planned technology services, including Respondent's employees who would use the technology that was being developed, as well as construction companies and engineers outside Respondent's department who would ultimately use such technology in working on department's construction projects in the future. Another part of her duties was the administration of contracts between the Department and outside contractors, and in doing so she dealt with independent subcontractor technical consultants who had subcontracts with those outside contractors. These technical subcontractor consultants were not augment employees, and Petitioner was not knowledgeable enough to supervise them on a technical basis. In Petitioner's words, "They spoke an entirely different language." She presented them with broad goals formulated by higher management and served as the conduit to inform them as to whether their work product was acceptable to Respondent and other end users.

6. Petitioner’s job description, both before and after her transfer, confirmed that her position was a “senior level career service data processing position.” She was not required to spend the majority of her time “communicating with, motivating, training, and evaluating employees, and planning and directing employees’ work.” Petitioner was only expected to spend approximately 10 percent of her time overseeing the work of the

   two state employees working in her area. As established by her testimony, Petitioner never spent more than 3 percent of her time supervising those state employees. Furthermore, the two state employees assigned to specialized technologies were supervised by another employee after the Summer of 2001.

7. At hearing, Respondent's only witness, suggested that Petitioner spent 60 percent of her time supervising “employees,” but he did not know what percentage of that time was spent overseeing the work of career service employees. Testimony of Respondent's witness, Nelson Hill, in this regard is not credited in view of his admission that he was not housed in the Rhynne Building in 2001, where Petitioner was located, and thus had no first-hand knowledge of the day-to-day activities of Petitioner or the other persons working at that building.

8. In any event, a majority of the persons which Hill contends were “supervised” by Petitioner (six out of eight) were not employees of Respondent, but were rather independent subcontractors whose services Respondent retained through contracts with outside third parties. These technical consultants were subcontractors under state approved contracts. They were not “hired” by Respondent. Further, they were not paid by the State, but were rather compensated pursuant to their agreement with the third party state contractor. They were not provided with any insurance, pension, unemployment or worker’s

   compensation benefits, but were instead treated as true independent contractors; and, most importantly, they were not protected by career service protections, as would have been required if they were indeed state employees.

9. In sum, Respondent's position, as expounded by Hill at the final hearing, is that the application of the exemption provided in Section 110.205(2)(x), Florida Statutes, may be justifiably applied to Petitioner due to Petitioner's alleged oversight of the independent subcontractors even though they were not “employees” of Respondent.2

10. The evidence does not support a conclusion that Petitioner spent a majority of her time “supervising” anyone. Petitioner’s position description confirms that her contract administration activities consumed no more than 35 percent of her time. By that description, Petitioner was required to provide “daily direction of consultant activities” and “manage, direct, and supervise technical and administrative staff." In actuality, Petitioner spent less than 25 percent of her time in such activities.

11. Petitioner spent the vast majority of her time gathering and transmitting information regarding technological and budgetary needs and facilitating the flow of information from the end users (i.e., Respondent's employees or outside construction contractors and engineers who would use the

    proposed technology) to Respondent management and back again. Any oversight provided by Petitioner to the technical consultants was exactly the same as that provided to other third-party companies with which Respondent had contracts.

    These outside companies and technical consultants were engaged by Respondent because they had the skill to achieve the goals that were presented to them within the budget that was established by Respondent. Petitioner's interaction with these persons was not “supervision” of a state employee, but rather “contract administration.”

12. Petitioner’s position descriptions specifically confirm that she was not a “managerial” or “confidential” employee as that term is defined in Section 447.203(4) and (5), Florida Statutes.

13. Accordingly, based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).3

15. As a preliminary matter, it is noted that any decision to reclassify Petitioner and transfer her out of career service, if valid and lawful, could only be applied from the date that such decision is final and is no longer subject to appeal. Fla. League of Cities v. Admin. Comm’n., 586 So. 2d 397, 413 (Fla. 1st DCA 1991)(“Until proceedings are had satisfying Section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.”) Thus, the effective date of any reclassification and transfer, assuming it were valid and lawful, could not be July 1, 2001, but could only be effective after the conclusion of all proceedings on her reclassification, including any appeal.

16. Unless exempted, all state employees are deemed to be career service employees. See § 110.205(1)(“the career service to which this part applies includes all positions not specifically exempted by this part . . .”). Section 110.205(2)(x), Florida Statutes (2001), exempts from the career service system, certain employees described as follows:

    Effective July 1, 2001, managerial employees, as defined in s. 447.203(4), confidential employees, as defined in

    s. 447.203(5), and supervisory employees who spend the majority of their time communicating with, motivating, training, and evaluating employees, and planning and directing employees' work, and who have the authority to hire, transfer, suspend, lay

    off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action, including all employees serving as supervisors, administrators, and directors. (Emphasis supplied.)

    
    

17. Respondent has the burden of establishing by a preponderance of the evidence that the reclassification of Petitioner's employment position was proper under the applicable statutes. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). See also Semone v. Department of Transportation, DOAH Case No. 03-4715SED (Recommended Order) (¶ 17); Conley v. Department of Children and Family Services, DOAH Case No. 03- 4216SED (Recommended Order) (¶ 14).

18. Additionally, inasmuch as Respondent is asserting that the exemption created by Section 110.205(2)(x) applies to Petitioner and should thus deprive her of her constitutionally created property interest in a career service position, the exemption must be strictly construed, and any doubt with respect to the applicability of the exemption must be resolved in favor of Petitioner and against Respondent. Heburn v. Dep’t. of Children & Families, 772 So. 2d 561, 563 (Fla. 1st DCA 2000), rev. denied, 790 So. 2d 1104 (exemption must be strictly

    construed against the person claiming the exemption). In this case, Respondent has not carried its burden.

19. The suggestion of Respondent's witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee.

20. Respondent was, and is, required to maintain a current job description for every position. See Fla. Admin. Code R. 60K-1.005, (repealed 1-1-02) and Fla. Admin. Code R. 60L-31.003. Respondent is also required to certify that each such position description is accurate and reflects the responsibilities assigned to the position. Id. Accordingly, Respondent is thus precluded from taking a position not supported by the content of Petitioner’s position description.

21. Petitioner's employment position, both as identified in the position description, and as actually performed, does not meet the definition of "supervisory," “managerial” or

“confidential” as described above. Accordingly, the reclassification of the position from career service to selected exempt was not clearly authorized by the statute. The decision to reclassify Petitioner should be reversed and her status as a career service employee restored.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Transportation should enter a final order finding that the position held by Petitioner Mavis R. Georgalis on July 1, 2001, was not properly classified into the selected exempt service. Petitioner was, and should continue to be, classified as a career service employee.

DONE AND ENTERED this 2nd day of July, 2004, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 2nd day of July, 2004.

ENDNOTES

1/ The fact that Respondent may have called Petitioner the “manager” of a “section” or that she was a “contract administrator” is not dispositive. It is the duties of a particular position, and not the title, which is relevant to the issue of whether it can be classified as selected exempt service.

2/ Mr. Hill’s admission that these independent subcontractor technical consultants were not “employees” of the Department should be sufficient to eliminate any question regarding whether the exemption at issue should apply to Ms. Georgalis. See Keith v. News & Sun Sentinel Company, 667 So. 2d 167, 171 (Fla. 1995) (Court should honor the position of the parties unless other facts belie that position). Moreover, the technical consultants in question would not satisfy the common law definition of employee as outlined in Restatement of Agency, Second, Section

220 in any event. Among other factors, Ms. Georgalis did not control the details of the work performed by the technical consultants, they were engaged specifically for their computer knowledge (which is a skill usually possessed by a specialist who acts without direct supervision), they were not paid by the Department but were instead compensated by a third party contractor of the Department, and their work pertained to matters which were generally outside the normal business of the Department.

3/ Petitioner has raised a constitutional challenge to her involuntary reclassification from career service to selected exempt service. Those issues are appropriately reserved for resolution by the Circuit Court, in a currently pending action, or by the Appellate Court, on appeal from the final order in this case.

COPIES FURNISHED:

Robert M. Burdick, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

M. Stephen Turner, Esquire Martin A. Fitzpatrick, Esquire Broad & Cassel, P.A.

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-004665SED

Orders for Case No: 03-004665SED