[it ALL SED FILED AGENCY FOR HEALTH CARE ADMINISTRATION APR -©& 0? STATE OF FLORIDA ACA ROBERT REINSHUTTLE, PEPARTMEN: CLERK Petitioner, vs. AHCA Agency Action: Denial of Request for Hearing Rendition No. QZ ay AGENCY FOR HEALTH CARE - “ oe ADMINISTRATION, Oe. oy Respondent. / FINAL ORDER This cause came before the Agency for Health Care Administration upon Petitioner’s Request for a Section 120.569, 120.57(1) Hearing. In the Petition (attached hereto as Exhibit A), Robert Reinshuttle (Petitioner) asserts that the matters at issue in this proceeding are whether he was entitled to permanent Career Service status on January 9, 2002, and whether the employment position occupied by him on June 30, 2001, was properly and lawfully reclassified by Respondent from the Career Service to the Select Exempt Service (SES) on July 1, 2001. FINDINGS OF FACT 1. Prior to July 1, 2001, Petitioner was employed by AHCA with permanent Career Service status. 2. Prior to July 1, 2001, Petitioner received notice that his position was being reclassified as within the Select Exempt Service on or about July 1, 2001. By e-mail dated June 27, 2001, Petitioner stated that he acknowledged his transfer to SES on July 1, 2001. (E-mail attached hereto as Exhibit B) In fact, Petitioner by his actions accepted the reclassification and the benefits accompanying that reclassification. Specifically, pursuant to Section 110.603, F.S., and Rules 60M-1.008 and 1.009, F.A.C., Petitioner received full life insurance and health insurance, without having to pay the premiums, and more sick and annual leave than was available to Career Service employees. 3. Onor about September 21, 2001, Petitioner was reassigned and reclassified to Career Service status. Petitioner was given notice that said reassignment and reclassification was with “probationary status.” Petitioner accepted the reassignment and reclassification without objection and performed his duties in this new classification and assignment until on or about January 9, 2002. During this time, he accepted the pay and benefits attributable to the new position and status. CONCLUSIONS OF LAW 1. The Agency for Health Care Administration has jurisdiction of this cause pursuant to Sections 120.569 and 120.57, Florida Statutes. 2. When an Agency receives a request for a Section 120.57(1) hearing, the Agency has the authority to review the Petition to determine whether it meets the statutory requirements of Section 120.569(1)(c), F.S.; Nicolitz v. Board of Opticianry, 609 So. 2d 92 (Fla. 1st DCA 1992); Village Saloon, Inc. v. Division of Alcohol, Beverages and Tobacco, Department of Business Regulation, 463 So. 2d 278 (Fla. 1st DCA 1984). 3. Among the determinations to be made are whether Petitioner had standing to challenge the agency action raised in the Petition and whether the challenges were filed in a timely manner. 4. In the instant case, what Petitioner is actually attempting to challenge by this circuitous route is his termination from employment on or about January 9, 2002. He asserted his right to contest that dismissal by filing an appeal with PERC. The PERC hearing officer has a recommended order finding that PERC has no jurisdiction to accept an appeal from a probationary employee, nor does PERC have jurisdiction to review an Agency’s decision to move a Career Service position into Select Exempt Service. The Hearing Officer recommended that PERC stay its decision until determination of a “Chapter 120 proceeding.” (The Recommended Order is attached hereto as Exhibit C.) 5. On March 27, 2002, PERC accepted the Recommended Order with one exception not relevant to the issue currently before the Agency for Health Care Administration. (PERC’s Order is attached hereto as Exhibit D). Because his attempt to seek redress of the January 2002 action through PERC has been unsuccessful, however, Petitioner now belatedly attempts to challenge previous agency actions. 6. Through the instant Petition Mr. Reinshuttle attempts to challenge this Agency’s decision to reclassify the Career Service position he held prior to July 1, 2001, and to move the position into Select Exempt Service. Specifically, Mr. Reinshuttle disputes the facts as to whether the transfer of his position to SES was authorized. The contentions by Petitioner concerning whether he actually performed supervisory duties may have been material had he contested his transfer into Select Exempt Service. Burgess v. Department of Commerce, 400 So. 2d 1258 (Fla. lst DCA 1981). But he did not. By accepting the reclassification and accepting the increased benefits available to SES employees, Petitioner is estopped from now contesting the lawful authority of the Agency to take the described personnel action.' 7. Even the PERC hearing officer recognized, on page 7 and 8 of the Recommended 'The Agency is not, in this Final Order, deciding whether he would have had a right to a 3 Order, that Petitioner’s delay in requesting a 120 proceeding might “vitiate” his standing to challenge the reclassification in July 2001. 8. Insofar as Petitioner is attempting through this Petition to raise the issue of whether he was entitled to permanent Career Service status on January 9, 2002, the Agency would state that that issue is properly before PERC at the present time and is not cognizable in this proceeding. CONCLUSION THEREFORE, it is hereby ORDERED and ADJUDGED that this Petition for a Section 120.569, 120.57(1) Hearing is hereby DENIED. This Order takes effect upon filing. DONE and ORDERED this 4 day of Ape / , 2002. S/MD., SECRETARY RHQNDA M. MEDOW Agéncy for Health Care Administration NOTICE OF RIGHT /fO 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 AGENCY CLERK OF THE AGENCY FOR HEALTH CARE ADMINISTRATION 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. hearing at that time since that issue is not presented in this Petition. 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final ons has been en by U.S.or interoffice mail to the persons named below on this 4 _ , 2002. COPIES FURNISHED TO: Robert Reinshuttle c/o Jerry G. Traynam, Esquire Patterson and Traynam, P.A. 315 Beard Street Tallahassee, FL 32308 Rhonda M. Medows, MD., Secretary Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, FL 32308-5403 FAUSERS\ADMIN\CATH Yiahcaord. wpd day of “ VA ease hare’ Virgima Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, FL 32308-5403 AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA aN Bg ROBERT REINSHUTTLE Petitioner, VS. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / PETITION FOR A SECTION 120.569, 120.57(1) HEARING Petitioner petitions the Respondent for a hearing pursuant to §120.569 and 120.57(1), Florida Statutes, for the purpose of determining whether Petitioner was entitled to permanent Career Service status on January 9, 2002, when he was terminated from employment by Respondent. This Petition also necessarily requests a_ factual determination whether the employment position occupied by Petitioner on June 30, 2001, was properly and lawfully reclassified by Respondent from the Career Service to the Selected Exempt Service on July 1, 2001, pursuant to Chapter 2001-043, §15, Laws of Fla., now codified as §110.205(x), Florida Statutes. 1. The Petitioner and the Respondent entered into an agreement — in Reinshuttle v. Agency for Health Care Administration, CS- 2002-043, pending before the Public Employees Relations Commission (PERC) — that Petitioner would seek a determination before the Division fe A 1 Ppp omens of Administrative Hearings whether the Petitioner’s employment position with Respondent was lawfully reclassified from the Career Service to the Selected Exempt Service systems on July 1, 2001. 2. The Respondent Agency for Health Care Administration (AHCA) is the agency directly affected by this request for hearing. AHCA’s address is 2727 Mahan Drive, Tallahassee, Florida 32308. The Department of Management Services (DMS) has post-audit authority over all reclassification determinations by agencies of the State, and may consider itself affected by a determination of this Petition. DMS’s address is 4050 Esplanade Way, Tallahassee, Florida 32399-0950. 3. The Petitioner’s name, address and telephone number are: Robert Reinshuttle; 1241 Stonehurst Way, Tallahassee, Florida 32312; (850) 422-3420. The name and address of Petitioner’s representative is set forth below. 4. Petitioner’s substantial interest is affected by the determination of this Petition, because Respondent unlawfully reclassified the Petitioner’s employment position from a position in the Career Service, where Petitioner held permanent status, to a position in the Selected Exempt Service, and then reclassified the position back to the Career Service less than three months later. Respondent contends the legal effect of these reclassifications is to strip Petitioner of permanent Career Service status, permitting Petitioner to be dismissed from employment without recourse. Petitioner was, in fact, terminated 2 by Respondent on January 9, 2002, without justification, other than his political affiliation. Although the Respondent contended he had no recourse to appeal the dismissal to PERC, he timely did so. PERC’s hearing officer, however, held that the Division of Administrative Hearings (through the Respondent), rather than PERC, has exclusive jurisdiction to determine whether Petitioner’s position was unlawfully reclassified from the Career Service to the Selected Exempt Service. The PERC hearing officer recommended the PERC case be stayed until an administrative determination can be obtained from the Division and ultimately the Respondent. While Petitioner believes the legal propositions articulated by the agencies are unsound — that the involuntary reclassifications stripped Petitioner of permanent status, and that PERC lacks jurisdiction to determine whether Petitioner has at all times remained within the Career Service — Petitioner’s substantial interests are adversely affected so long as the agencies adhere to these legal and factual positions. 5. Petitioner received notice that his position had been reclassified as within the Selected Exempt Service on or about the date on which the reclassification occurred, July 1, 2001. On information and belief, he received the notice by email. The notice did not contain a clear point of entry or the information required by §120.569(1), Florida Statutes. Petitioner was notified his position was reclassified, but was not notified of the basis for the reclassification decision, was not notified 3 he had a right to a hearing in which to challenge the decision, and was not provided a definite deadline for filing the hearing request. DISPUTED IssuES OF Fact? 6. The Petitioner was employed with the Agency prior to June 5, 2000. His position number 063644 was reclassified on June 5, 2000, to Class Code 2225, Senior Management Analyst II (SMA II), Career Service. He was employed with the Agency with permanent Career Service status in Class Code 2225, Senior Management Analyst II (SMA ll), Career Service, at all times prior to July 1, 2001. 7. Effective May 21, 2001, the Petitioner was reassigned to position number 064145, a position in Class Code 2225, Senior Management Analyst I] - Leadworker, Career Service. Rule 60K- 14.001(32), Florida Administrative Code, defines a reassignment as “Imloving an Petitioner from a position in one class to a different position in the same class....”? 8. Chapter 2001-043, Laws of Fla., §15, is now codified as amended as §110.205, Florida Statutes. The amended statute exempts additional positions from the Career Service system, effective July 1, 2001, including “supervisory employees who spend the majority of their time communicating with, motivating, training, and _ evaluating " AM or some of the following facts may be disputed. > Although Chapters 60K-1 through 60K-17 were repealed by statutory mandate on January 3, 2002, they were in effect during the relevant period. 4 employees, and planning and directing employees’ work.” See, §110.205(x), Florida Statutes (2001). A supervisory position was defined by rule as a position having “as its primary purpose the responsibility for spending a majority of time communicating with, motivating, training and evaluating employees, and planning and directing work.” Rule 60k- 1.009, Florida Administrative Code. Immediately prior to July 1, 2001, the Petitioner occupied a position designated as a “leadworker,” which, by contrast with a supervisory position, “{iJnvolves limited supervisory responsibilities ... that do not justify reclassifying the position to a supervisory class.” Rule 60K-1.009(3)(b) and (c), Florida Administrative Code. A leadworker “[c]lannot be utilized to create an intermediate level of full-time supervision, or as a substitute for the establishment of a new supervisory class.” Rule 60K-1.009(d), Florida Administrative Code. See also, Rule 60K-14.001(20), Florida Administrative Code. 9. Effective July 1, 2001, the Agency recorded a reclassification of the Petitioner’s position number 064145 in his personnel file to a position in Class Code 2228, Senior Management Analyst Supervisor, Selected Exempt Service, on the presumption that the position was supervisory. There was no change in the duties and responsibilities of the Petitioner’s position from the time period immediately prior to July 1, 2001, and immediately following July 1, 2001. The Petitioner did not perform supervisory duties either prior to July 1, 2001, or immediately following July 1, 2001. 10. The reclassification of Petitioner’s position as a Selected Exempt Service position on July 1, 2001, was erroneous and unlawful. Petitioner remained in a position defined as a Career Service position by §110.205, Florida Statutes (2001). li. An agency’s power to reclassify positions is delegated by rule having the force of law, and an agency has no power to reclassify other than as prescribed by valid rule. “Any classification action to be taken by an employing agency shall be initiated by preparation of a current position description.” Rule 60K-1.0081(3), Florida Administrative Code. In reclassifying the Petitioner’s position number 064145 effective July 1, 2001, the Agency did not prepare a current position description for the Petitioner’s position or for any of the other 400 positions it reclassified that date. 12. Effective September 21, 2001, the Petitioner’s position number 064145 was reclassified as a position in Class Code 2225, retitled Government Analyst II, Career Service. On reclassification of the position, the Respondent gave Petitioner a “reassignment due to reclassification,” but mistakenly indicated Petitioner was reassigned with “probationary status” rather than with “permanent status.” 13. On being reassigned due to reclassification on September 21, 2001, Petitioner was entitled to be reassignment with permanent status. Because the Petitioner’s position was unlawfully reclassified, he was simply reassigned within the same class, and retained permanent status. 6 Rule 60K-4.002(6), Florida Administrative Code, provides that permanent “status shall be retained throughout the period of continuous employment in the Career Service.” But even if Petitioner was lawfully given a reassignment assignment, Rule 60K-4.008(4), Florida Administrative Code, provides that “[i]f, however, the employee previously held permanent status in the class to which reassigned and has not had a subsequent break-in-service, the reassignment shall be with permanent status.” 14. The Petitioner was terminated from employment without explanation on January 9, 2002, on the representation by the Respondent that he had no recourse for review of the dismissal decision. Respondent represented that because it reassigned Petitioner with probationary status he could be dismissed without “cause,” and that its decision was not subject to review. 15. Petitioner nevertheless filed an appeal of the dismissal with PERC. PERC’s hearing officer made a preliminary determination that PERC has no jurisdiction to determine the issues set forth in this Petition, and has recommended that the PERC action be stayed pending a determination on this Petition. REASONS PETITIONER IS ENTITLED TO PREVAIL The Employee occupied Career Service position number 064145 in Class Code 2225 with permanent status prior to July 1, 2001. On that date his position was unlawfully reclassified as a position within the 7 Selected Exempt Service, on the rationale that it was a “supervisory” position within the meaning §110.205(x}), Florida Statutes (2001). Petitioner’s position was not, however, supervisory within the meaning of the statute, and, by statutory definition, remained within the Career Service. Thus, the Respondent’s reclassification action on September 21, 2001, purporting to return the Petitioner’s position to the Career Service, had no effect on his status in the Career Service, which remained “permanent.” For purposes of this argument only, we assume that on July 1, 2001, the Agency reclassified the position as a Selected Exempt Service position. This reclassification was involuntary, not an action taken by the Employee to gain some advantage. On September 21, 2001 — less than three months later —- the Employee’s position number 064145 was again reclassified as a Career Service position in Class Code 2225, a class in which the Employee previously held permanent status. During this less than three-month span, the Employee remained continuously on the State payroll. Rule 60K-4.021(3), Florida Administrative Code, applied to the Employee while he occupied a position in the Career Service, and it established that he would not have a “break in service” without the confluence of two conditions: (1) a separation; and (2) absence from any State payroll for at least 31 calendar days. Thus, the Employee was guaranteed he would not have a break in service unless he “separated” and remained off of any State payroll for at least 31 calendar days. Neither occurred. Thus, Petitioner had no break in service. When the Employee’s position was reclassified as a Career Service position, he was given a reassignment appointment, not an original appointment. “An employee shall be given a reassignment appointment when: (a) the employee is moved from one class to another class having the same maximum salary.” Rule 60K-4.008(1), Florida Administrative Code. In reclassifying the Employee’s position on September 21, 2001, the Agency identified the action as a “Reassignment due to Reclassification.” This reclassification resulted in a reassignment with permanent status. Rule 60K-4.008(4), Florida Administrative Code, provides that “i]f, however, the employee previously held permanent status in the class to which reassigned and has not had a subsequent break-in-service, the reassignment shall be with permanent status.” FOR ALL OF THE FOREGOING REASONS, the Petitioner requests the Respondent to take the following actions: 1. Refer this petition to the Division of Administrative Hearings for disposition pursuant to §120.57(1), Florida Statutes. 2. Find that Petitioner’s employment position was not a supervisory position within the meaning of §110.205, Florida Statutes, when the Respondent took action to reclassify it as a Selected Exempt Service position effective July 1, 2001, and that the position remained within the statutory definition of a Career Service position. 9 3. Find that Petitioner was a “permanent” status Career Service employee when his position was reclassified again on September 21, 2001, because Petitioner had remained continuously employed in Class Code 2225 within the Career Service, or because he was given a reassignment appointment to a class in which he had previously held permanent status. 4. Take corrective action to redress the unlawful reclassification of the Petitioner’s position on July 1, 2001, or the improper status designation on September 21, 2001, including rescinding the reclassification, correcting pay and benefit records and contributions, and other appropriate relief. JERRY G. TRAYNHAM ATTERSON & TRAYNHAM Post Office Box 4289 315 Beard Street Tallahassee, Florida 32315-4289 (904) 224-9181 FiBarNo 212806 10

Docket for Case No: 04-002011SED