STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK A. SEMONE,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 03-4715SED

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 23, 2004, in St. Petersburg, Florida, before William R. Pfeiffer, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary F. Aspros, Esquire

Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

For Respondent: Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue Tampa, Florida 33606

STATEMENT OF THE ISSUES

The issues in this matter are whether Petitioner was a supervisory employee as defined by Subsection 110.205(2)(x), Florida Statutes (2001), and was, therefore, properly

reclassified from Career Service to Selected Exempt Service effective July 1, 2001.

PRELIMINARY STATEMENT

The Petitioner, Mark Semone, timely filed a petition to request a review in accordance with Florida Administrative Code Rule 28.106 concerning the reclassification of his position of employment with the State of Florida from Career Service to Selected Exempt Service in accordance with the Service First initiative (Chapter 2001-43, Laws of Florida). Respondent forwarded the case to the Division of Administrative Hearings, and a hearing was held on February 23, 2004, in St. Petersburg, Florida.

At the hearing, Respondent presented the testimony of Brian Bennett, Department of Transportation, Maintenance Engineer who was Petitioner's supervisor before and after Petitioner was transferred from Career Service to Selected Exempt Service and Frances M. Brooks, Department of Management Services, whose testimony was taken telephonically. Respondent presented Exhibits 1 through 4, 6 through 8, 14, 15, 18 through 36, 39

through 41, 47, 49, 54, and 55, which were admitted into evidence. Petitioner testified in his own behalf and presented the testimony of Ahmed Nawab (Mr. Nawab), a former employee of the Department of Transportation. Petitioner presented one exhibit which was admitted into evidence. The parties timely

filed their respective Proposed Recommended Orders, which were carefully considered.

FINDINGS OF FACT

1. The 2001 Florida Legislature enacted a substantial revision of the Florida Civil Service system referred to as the "Service First" initiative. (See Chapter 2001-43, Laws of Florida). This revision, which became effective on July 1, 2001, substantially expanded the parameters of the Selected Exempt Service classification to include many positions which had previously been identified as Career Service positions.

2. Generally, Selected Exempt Service employees serve at the pleasure of the agency head and are considered at-will employees; whereas, Career Service employees have greater employment rights and job security.

3. Petitioner was employed by Respondent at the Pinellas Maintenance Yard from December 15, 1997, to September 19, 2002. Initially, Petitioner held the position of Office Support III, but was eventually promoted to Office Support V in June 2001, both Career Service classifications. Following the enactment of the Service First initiative, Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2001. On September 19, 2002, Petitioner was terminated from employment without explanation. His annual salary was $32,500.

4. Following the decision in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), Respondent notified Petitioner of his rights to seek an administrative hearing and challenge the reclassification. Petitioner timely challenged Respondent's action.

5. During his tenure working for Respondent, Petitioner, pursuant to his written position description, was responsible for various administrative functions, including personnel, records, and fiscal matters, as well as supervisory responsibilities, including the supervision of a few administrative staff. Specifically, his position description provides in part:

   20% of time: Supervises and/or participates in the daily administrative activities . . . . Ensuring the reception telephone and radio are fully staffed at all times. . .

   
   

   15% of time: Supervises and/or participates in the personnel activities for Pinellas Maintenance Office. Counsels employees in matters of retirements, benefits, grievances, discipline and other personnel and work related problems. . .

   
   

   15% of time: Supervises and/or participates in the fiscal activities for the Pinellas Maintenance Office. Supervises the maintenance of ledgers and Journals associated with local Purchase Orders, local Charge Accounts and Purchase Requisitions, Utility Invoice Transmittals, Contract Invoice transmittals, Partial Payments,

   etc. . .

   10% of time: Directs purchasing for the Pinellas Maintenance Office. . .

   
   

   10% of time: Serves as representative of the Pinellas Maintenance Engineer at meetings. . .

   
   

   10% of time: Receives incoming mail, reviews and distributes to appropriate personnel. . .

   
   

   5% of time: Participates in the selection process for entry level Field Operations Unit positions. . .

   
   

   5% of time: Directs and coordinates the maintenance and use of records storage. . .

   
   

   5% of time: Trains employees in methods for performing an efficient and effective job.

   
   

   5% of time: Performs other related duties as required.

   
   

6. Petitioner admits that he was responsible for and routinely engaged in many activities that were supervisory in nature. The evidence supports the fact that Petitioner performed these duties, and his performance evaluations reflect his activity.

7. Petitioner's position description allocated specific time frames to the written duties and responsibilities. Upon careful review, the position description provides that the Office Support, Level V position employee shall "supervise and/or participate" in administrative, personnel, and fiscal matters 50 percent of the work-time. The remaining 50 percent of work-time is allocated to other duties, including purchasing,

   attending meetings, mail distribution and inquiries, assisting with the selection process of certain entry level positions, coordinating records storage, training certain employees, and performing other "related duties as required."

8. While Petitioner admits that he performed supervisory activity, he contends that it consumed a small percentage of his work-time. He further argues that he was authorized and required to spend 50 percent of his time "supervising and/or participating in" certain activities. Petitioner alleges that he spent little time "supervising" and most of his time "participating" and actually performing the activities. The evidence demonstrates that among the 80 to 100 people employed at the yard, Petitioner supervised a personnel technician, a financial clerk, a clerical employee, and a receptionist, all of whom required limited supervision. Petitioner primarily served as the personnel liaison for all of the employees, maintained their files, researched personnel matters, and responded to inquiries. He handled the personnel paperwork related to hiring and firing, leave, pay adjustments, travel reimbursements, and employee benefits.

9. In addition, Petitioner investigated and processed workers' compensation claims and handled the yard's safety and training records. He worked on special projects including

   ferreting out overtime abuse, installing a security system, and handling certain maintenance issues.

10. In addition to his administrative personnel responsibilities, Petitioner admittedly supervised, trained, directed, and evaluated four subordinates and was responsible for improving their performance via counseling and corrective action. He initiated disciplinary action and issued a written reprimand to one employee with poor attendance.

11. On occasion, Petitioner conducted staff meetings with his subordinates and also met with them individually. He managed attendance and approved leave for his staff of four. He participated in interviewing and selecting candidates for open positions under his supervision and determined the appropriate criteria, created the interview questions, and was a member of the interview panel.

12. Petitioner was evaluated, in part, upon his supervision of subordinates. One evaluation noted that he needed to improve follow-up with assignments made to others and another indicated that he capably initiated change, but occasionally required assistance to effectuate it. Petitioner's evaluations also assessed his leadership and delegation skills, and one noted that he delegated well, but needed to work to regain better control of his areas.

13. Although some of Petitioner's time was spent supervising, the evidence demonstrates that the vast majority of his work-time was spent performing non-supervisory activities. The facts show that Petitioner actually performed the noted activities the majority of the time and supervised those activities on occasion.

14. Furthermore, Mr. Nawab, who periodically served as Petitioner's supervisor, provided credible evidence that Petitioner's primary responsibilities and the majority of his work-time involved non-supervisory activities.

15. While Petitioner, during his testimony, diminished the time he spent engaged in supervisory work, the credible evidence demonstrates that he spent the minority of his work-time communicating with, motivating, training, and evaluating employees and planning and directing employees' work. Although Petitioner may have demonstrated mediocre supervisory skills, which does not make the position any less supervisory, neither Petitioner's supervisor nor his position description required him to spend the majority of his work time engaged in those supervisory activities.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

17. In general, the burden of proof "apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977). In this case, Respondent reclassified Petitioner's employment position and, therefore, has the burden to prove by a preponderance of the evidence that it fell within the definition of an exempt supervisory employee as set forth in

    Subsection 110.205(2)(x), Florida Statutes (2001).

    
    

18. Pursuant to Subsection 110.205(2)(x), Florida Statutes (2001), certain employees shall be outside the Career Service classification including:

    . . . 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. . . .

    
    

19. The plain language of the statute creates a dual- pronged test in determining whether reclassification is appropriate. Beginning with the latter, the second prong requires exempt supervisory employees to have the authority to "hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action. . . ." It is clear that

    Petitioner, at minimum, had the authority to effectively recommend discipline and did so.

20. The first prong however, has not been satisfied. It requires that supervisory employees exempt from Career Service spend the "majority" of their time communicating with, motivating, training, evaluating, planning, and directing employees' work. Petitioner admittedly engaged in all of those activities. His position was not purely routine, clerical, or ministerial in nature. He supervised four employees and was required to apply his judgment. He had a role in personnel administration. He was entrusted to approve leaves of absence, attendance, to discipline, to adjust workload and work flow, to evaluate quality and quantity of work performed, and to evaluate performance.

21. However, the plain language of the statute exempts only those supervisory employees who spend the "majority" of their time engaged in those activities. Petitioner did not spend the majority of his time engaged in those activities.

22. Respondent argues that even if Petitioner did not spend the majority of his time supervising, it was required of him, and he failed as a supervisor. Respondent's argument is inconsistent with the evidence and lacks merit.

23. The determination of whether reclassification is authorized depends upon the specific nature of the job and the

    amount of supervisory work-time the incumbent in that position was expected to perform. It is determined by the evidence in a case-by-case manner and does not and cannot hinge upon the success or failure of the incumbent at executing the expectations or responsibilities.

24. In this case, Respondent failed to prove by a preponderance of the evidence that Petitioner spent a majority of his time communicating with, motivating, training, and evaluating employees and planning and directing his subordinate employees' work. Furthermore, the credible evidence proves that Petitioner spent the clear minority of his time engaged in those activities.

25. Finally, regardless of Petitioner's skills or success, the evidence demonstrates that the successful performance of the position's duties did not obligate or hinge upon the incumbent spending the majority of his/her time engaged in supervisory activities. In fact, to the contrary. Neither his supervisor nor the position description recommended or required it.

26. Petitioner's position does not qualify for Select Exempt classification. Respondent improperly reclassified Petitioner out of Career Service status.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that:

1. The position of Office Support V for the Pinellas Maintenance Yard for the State of Florida Department of Transportation was not exempt from Career Service classification as defined in Subsection 110.205(2)(x), Florida Statutes (2001);

2. Respondent improperly reclassified the position as Selected Exempt Service; and

3. Petitioner should be reinstated with the full benefits accrued since his termination on September 19, 2002.

DONE AND ENTERED this 25th day of May, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 25th day of May, 2004.

COPIES FURNISHED:

Robert M. Burdick, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350

324 South Hyde Park Boulevard Tampa, Florida 33606

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

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 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: 03-004715SED

Orders for Case No: 03-004715SED