STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LONNY OHLFEST,

Petitioner,

vs.

MIAMI-DADE COMMUNITY COLLEGE, DISTRICT BOARD OF TRUSTEES,

Respondent.

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) Case No. 04-2531RU

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FINAL ORDER

Pursuant to notice a formal hearing was held in this case on August 18, 2004, in Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bob Sherin, Qualified Representative

15805 Southwest 101 Avenue

Miami, Florida 33157-1630

For Respondent: Marissa I. Delinks, Esquire

Hinshaw & Culbertson Southtrust Bank Building

One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, Miami-Dade Community College, has adopted a statement of agency policy in violation of Florida law.

PRELIMINARY STATEMENT

This case evolved from a prior proceeding wherein the Petitioner, Lonny Ohlfest, sought to challenge his dismissal from employment with the Respondent, Miami-Dade Community College, District Board of Trustees (Respondent or MDC). In that matter, the Petitioner claimed he was entitled to an administrative hearing to contest the basis for his termination. The Respondent maintained that because the Petitioner had served as an employee "at will" he was not entitled to an administrative hearing. Thereafter, the Petitioner filed the instant case, and alleged that the Respondent has a pattern of refusing to refer petitions to the Division of Administrative Hearings. Moreover, the Petitioner maintains that this conduct (of not referring dismissal cases for administrative review) constitutes an unpromulgated rule, an adopted agency policy, in violation of Florida law.

At the hearing, Bob Sherin represented the Petitioner. Mr. Sherin, a non-lawyer, was accepted as the Petitioner's qualified representative. The Petitioner also participated in the presentation of his case. The Petitioner testified in his own behalf and offered Carol Miller, the director of the Respondent's school of allied health technologies; and Clive Bridges, the assistant director of employee relations and the EEOC contract employee for the Respondent, as witnesses in the

matter. The Petitioner's Exhibits 1, 2, 3, 4, 6, 7, 8, 9, 11, and 12 were admitted into evidence. The Respondent adopted the testimony presented in the Petitioner's case and did not present additional witnesses. The Respondent's Exhibits 1, 2, 3, 4, 6,

7, 8, 9, 10, and 11 were received in evidence.

A transcript of the proceedings was not filed. The parties filed Proposed Final Orders that have been fully considered in the preparation of this Final Order. The Proposed Final Orders were filed with the Division of Administrative Hearings on August 27, 2004.

FINDINGS OF FACT

1. Prior to August 2, 2002, the Respondent employed the Petitioner, Lonny Ohlfest.

2. At the time of his termination, the Petitioner filed a request for a due process hearing with the Respondent to challenge his termination from employment. The Petitioner challenged the basis for his termination as he wanted to clear his name regarding some unflattering allegations but, equally important, he wanted to keep his job with MDC.

3. The Respondent denied the Petitioner's request for an administrative hearing and found that the Petitioner was not entitled to a hearing. More specifically, the Respondent concluded that since the Petitioner did not have a contract of employment he was not entitled to an administrative hearing.

4. The Petitioner disputed the Respondent's claim and argued that he did have a contract, that he had a reasonable expectation that his employment would continue, and that the Respondent unlawfully refused to afford him regress through the administrative process. When the Petitioner's appeal of his request for an administrative hearing failed, he filed the instant case to challenge the Respondent's policy of not referring administrative cases for formal hearing. The delays in the appeal process explain and support the Petitioner's delay in filing the instant challenge to the agency's alleged rule.

5. To understand the historical perspective of this case, the following findings are made pertinent to the Petitioner's employment with the Respondent:

   1. The Petitioner began employment with the MDC on or about April 4, 2001. He was hired as a part-time, hourly worker within the school of allied health technologies. The position he assumed was funded and operated within the "Health Careers Opportunities Program" or HCOP.

   2. The HCOP was funded by a federal grant. The monies coming from the grant were renewable each year and ran concurrent with the school's fiscal year (July 1-June 30). All employees paid through the HCOP grant were considered "temporary" as the grant monies were necessary to assure continued employment.

   3. In January 2002 the Petitioner was given a full-time position within the HCOP. He was designated "Program Leader/Student Services" for the upcoming summer bridge program.

   4. At all times material to this case, all parties knew that absent federal funding the HCOP would not continue to operate. Moreover, the Petitioner knew, or should have known, that his employment with the Respondent would run only until June 30, 2002. Thereafter, it was expected that if and when the federal funding came through, the HCOP employees (including the Petitioner) would continue to work within the scope of the program.

   5. At the end of the summer program in 2001, the HCOP employees took leave until the school year started and the funding of the program was assured. Accordingly, after the summer bridge program was completed, the Petitioner expected to be on leave during the summer of 2002 until called back to work.

   6. Instead, the Respondent terminated the Petitioner from employment. The 2002 summer bridge program had not finished well for the Petitioner. Amid allegations of sexual harassment (unsubstantiated and not at issue in this proceeding) the Petitioner's working relationship within the HCOP floundered. The Petitioner was aghast that unsubstantiated claims had been reported, he wanted the accusations resolved, he wanted his name

      cleared, and he was disappointed by the process that failed to timely and fully resolve the issues.

   7. When the Petitioner left the campus for what he believed would be the break (similar to the one they had taken the prior year), he was uncertain as to his employment status. In fact, when he left the campus he cleaned out his desk and returned his keys.

   8. Nevertheless, on July 26, 2002, Dr. Miller directed the Petitioner to present for work on July 29, 2002. He did not do so.

   9. On July 29, 2002, the Petitioner's immediate supervisor directed him to appear for work on July 30, 2002. He did not do so. In fact, the Petitioner did not return to the office until July 31, 2002. The Petitioner did not understand that his attendance was mandatory for the two days that he did not appear for work. When the Petitioner did check in with the HCOP office on the 31st he came to understand the gravity of the situation.

   10. As a result of the absences, the Respondent cited the Petitioner with insubordination and terminated his employment with MDC.

   11. The Petitioner timely challenged the termination but the Respondent ruled he was not entitled to an administrative review of the decision.

6. The Petitioner filed for, and received, unemployment

   compensation. The termination was not justified by the standards applicable to that forum. The rules governing unemployment compensation do not, however, govern the administrative process regarding whether or not one's employment constitutes a property interest that is protected by law.

7. Upon receipt of the Petitioner's petition seeking an administrative review, the Respondent declined to afford the Petitioner with a hearing.

8. The Respondent does not forward petitions filed by non- contract employees when such individuals seek to challenge their termination of employment. The Respondent maintains that, as a matter of law, they are not required to forward such petitions for formal review. The Respondent does not have a written rule or policy stating that non-contract employees are not entitled to administrative review when their employment is terminated. Conversely, the Respondent does not have a written rule or policy stating that non-contract employees are entitled to an administrative review when their employment is terminated.

9. The Petitioner was not a full-time, contract employee of the Respondent.

10. The Respondent's policy affords full-time contractual personnel a right to an administrative hearing pursuant to Chapter 120, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.54, 120.56, 120.569, and 120.57(1), Fla. Stat. (2004).

12. Section 120.52(2), Florida Statutes (2004), defines "agency action" as "the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order. The term also includes any denial of a request made under section 120.54(7)."

13. Section 120.52(15), Florida Statutes (2004), defines "rule." Such section provides:

    "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:

    1. Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

    2. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.

    3. The preparation or modification of:

    1. Agency budgets.

    2. Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chief Financial Officer or Comptroller.

    3. Contractual provisions reached as a result of collective bargaining.

    4. Memoranda issued by the Executive Office of the Governor relating to information resources management.

    
    

14. Section 120.56(4), Florida Statutes (2004), provides in pertinent part:

    (a) Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s

    120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54.

    
    

15. Section 120.54(1)(a), Florida Statutes (2004), provides:

    Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.

    
    

16. In this case, the Petitioner maintains that the

    Respondent has a statement of agency policy that has not been properly adopted through the rulemaking procedures set forth by law. Pursuant to this "agency statement," employees such as the Petitioner are denied their right under the Administrative Procedures Act to challenge decisions that affect their material interests. More specifically, the Petitioner maintains that he was entitled to an administrative hearing to challenge his dismissal from his employment, that others are also denied an opportunity to challenge employment decisions, and that the agency statement of general applicability (to deny hearings to similarly situated employees) constitutes a violation of Florida law. The Petitioner bears the burden of proof in this cause to establish the factual and legal basis for his contentions. He has failed to meet that burden.

17. Under Florida law, an "at will" employee does not have a property interest in his continued employment. Absent a contract, the Petitioner served as an "at will" employee. As such, the Respondent was not required to show "just cause" for his termination. In fact, the Respondent did not have "just cause" for the Petitioner's termination because he did not abandon his position. Although the Petitioner did not take proper leave for the days he missed and did not provide an adequate excuse for why he did not appear for work, the Respondent was not required by law to retain an employee who did

    not have a contract. Absent a contract (or recognized protection by virtue of membership within a protected class of employment--not at issue here), the Petitioner's employment could be terminated for any reason. The Petitioner was not protected by a contract nor was he a member of a protected class of MDC employees. Therefore, the Petitioner has failed to prove he had a legitimate property interest in his employment with the MDC.

18. To establish a "property interest" in employment for due process purposes, one must establish that there is a rule, contract, or other explicit understandings that support that claim. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694 (1972). As stated above, the Petitioner did not have an employment contract. Additionally, absent the federal funding for his position, he clearly knew he would not have employment with the Respondent. He had an expectation that he could continue from year-to-year but no legal guarantee of that position. Clearly, the MDC did not have an explicit understanding that this employee (or any within the HCOP) would be guaranteed employment with the Respondent.

19. Finally, the Petitioner has also failed to establish that the Respondent has any statement of general applicability that has not been promulgated by rule that would deny those within a protected class (those with contracts or membership

    within a protected class) of an administrative hearing to challenge terminations of their employment. Simply stated, the Respondent's policy does afford administrative hearings to those who are entitled to challenge dismissal. That this rarely happens does not establish that the Respondent does not refer cases for hearing or that it denies administrative remedies to those who are entitled to them.

20. Any employee terminated from employment for less than "just cause" might take Petitioner's position. It seems unfair, and perhaps it is unfair to the sensibilities of ordinary people. But what is "unfair" in a moral or common decency sense does not equal "unlawful" in the legal sense. Only individuals with a vested property interest in their employment may challenge the basis for their dismissal. Bishop v. Wood, 426

U.S. 341, 96 S. Ct. 2074 (1976). Pursuant to the Respondent's rules and policies the Petitioner did not have a contract or property interest in his employment. Petitioner served as an "at will" employee. As an "at will" employee he does not have standing to challenge the policy of denying administrative hearings to contract employees and he has not proved that the Respondent does, in fact, deny such hearings to those who are entitled to challenge their dismissal.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the instant case is hereby dismissed.

DONE AND ORDERED this 6th day of October 2004, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 6th day of October 2004.

COPIES FURNISHED:

Lonnie Ohlfest

6000 Southwest 72nd Avenue Miami, Florida 33143

Bob Sherin

15805 Southwest 101 Avenue

Miami, Florida 33157-1630

Carmen Dominguez, Esquire Miami-Dade Community College

300 Northeast Seconnd Avenue, Room 1410 Miami, Florida 33132-7654

Marissa I. Delinks, Esquire Hinshaw & Culbertson

One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301

Liz Cloud, Program Administrator Administrative Code

Department of State

R. A. Gray Building, Suite 101 Tallahassee, Florida 32399

Scott Boyd

Executive Director/General Counsel

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 04-002531RU

Orders for Case No: 04-002531RU