STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. SNYDER,

Petitioner,

vs.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Respondent.

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) Case No. 05-1602SED

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RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in the above-styled case on September 27, 2005, in Tallahassee, Florida, before the Honorable Diane Cleavinger, Administrative Law Judge at the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry G. Traynham, Esquire

Post Office Box 4289 Tallahassee, Florida 32315

Melissa Horwitz, Esquire 6840 Highland Park Terrace Tallahassee, Florida 32301

For Respondent: Avery D. McKnight, Esquire

Alien, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

Judson M. Chapman, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Suite A-432 Tallahassee, Florida 32399-0504

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Highway Safety and Motor Vehicles (Department or Respondent) reclassified Petitioner’s employment position from Career Service to the Select Exempt Service under the “Service First” initiative codified in Section

110 205(2)(x), Florida Statutes. On July 23, 2003, the Department advised Petitioner that he could file a petition challenging the reclassification of his position. On May 4, 2005, Petitioner filed a petition challenging the reclassification. The Petition was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified on his own behalf and offered five exhibits into evidence. The Department presented the testimony of four witnesses and offered seven exhibits into evidence. After the hearing, the parties filed Proposed Recommend Orders on November 3, 2005.

FINDINGS OF FACT

1. On May 1, 2001, Petitioner was reassigned from Accountant Supervisor I to Administrative Assistant II. At the time, Petitioner was under the Career Service System and was a probationary status employee. Petitioner’s position as an Administrative Assistant II was a position within the PERC certified collective bargaining unit, entitled the Administrative and Clerical Unit, Certification Number 542 issued on June 25, 1981. For inclusion within such a unit the position was considered to not involve managerial or supervisory functions.

2. In the early part of 2001, the Department’s Bureau of Personnel Services worked with the Department of Management Services to implement the Service First initiative. As part of Service First’s implementation, the Bureau reviewed positions to determine whether they met the criteria set forth in Section 110.205, Florida Statutes. After its review, the Bureau forwarded its determination regarding those positions to the Department of Management Services (DMS) for reclassification or exemption as appropriate.

3. The Bureau reviewed Petitioner’s duties and consulted with Petitioner’s immediate and indirect supervisors regarding the essential duties assigned to Petitioner’s position. Based on that review, the Bureau determined that Petitioner’s position

   was confidential. Although the evidence at the hearing did not demonstrate such the Bureau determined that Ms. Wofford and Petitioner had access to confidential collective bargaining material due to their work with the Long-Range Program Plan (LRPP).

4. On July 1, 2001, Petitioner’s position was reclassified from Career Service to SES due to the Service First initiative. Petitioner’s position was reclassified to SES because it was determined to be a confidential position as defined in Section 110.205, Florida Statutes. The title of the position remained the same. A new position description under SES was approved by the Division Director, Ms. Sandy Delopez. The new SES description was essentially the same as Petitioner’s old Career Service position description. In pertinent part, the position description as of July 1, 2001, stated the following:

   This position is authorized to work independently assisting management in the coordination of tasks and/or assignments, which are complex in nature, broad in objective with diverse functions. Duty [Sic] involves the performance of activities, which involve independent planning and prioritization. Assists in collecting, evaluating and analyzing data and work.

   
   

   Review records and reports that require action and recommend solutions that fully utilize technology.

   
   

   Perform special assignments, research, report preparation, conducting and/or

   directing special projects or activities as directed.

   
   

   Responsible for performing other related duties as required.

   
   

   Petitioner remained employed under the new classification until his termination on March 12, 2003.

5. As an Administrative Assistant II under SES, Petitioner worked in the Office of Planning and Business Support under the Division of Administrative Services in the Department of Highway Safety and Motor Vehicles. One of the Division’s major responsibilities was to coordinate preparation of the LRPP.

6. The Division provided administrative support functions for the Department, including budgeting, accounting, human resources, purchasing and contracts. Petitioner reported to Stacy Wofford, the Bureau Chief of Purchasing and Contracts, who acted as his immediate supervisor. Ms. Wofford served as the Agency Planning Officer. Petitioner’s chain of command also included Ms. Wofford’s direct supervisor, Mallory Horne, Jr., Chief of Staff, and the Division Director, Ms. Sandy DeLopez. Ms. Wofford had the primary responsibility for preparing the LRPP. The Office of Planning only had two employees,

   Ms. Wofford and Petitioner.

   
   

7. The LRPP is a five-year plan prepared by Respondent each year, pursuant to Section 216.013, Florida Statutes, that lays out the agency’s goals, strategies for reaching those

   goals, and the performance measures used by the agency in evaluation of its performance. The Governor’s Office directed the items and issues that were to be included in the LRPP. The LRPP addresses Respondent’s plan for reductions in force, and identifies specific positions that could be impacted by such reductions in force. There was no substantive evidence that this information was used in collective bargaining in any substantial way.

8. The LRPP also is used to justify the Department’s legislative budget request. The plan provides the framework and foundation for the Department’s legislative budget request and addresses how the Department is going to meet the Governor’s mandate of a five percent budget and workforce reduction for each year. As a part of the LRPP, the Department provided its plan for reductions in force and identified specifically positions that would be impacted. It has a substantial impact on the preparation of the Department’s budget and legislative consideration of that budget. However, neither Ms. Wofford, nor Petitioner prepared or administered agency budgets.

9. Ms. Wofford had primary responsibility for coordinating the plan’s preparation. In preparing the LRPP, Ms. Wofford had to analyze the goals of the various Divisions in the Department and what positions may be possible for elimination or consolidation. Furthermore, Ms. Wofford consulted with bureau

   chiefs in staff meetings and briefings to provide information to the Division Director that could be used in determining where job cuts would be made. Based on her job description,

   Ms. Wofford’s position was not of a routine, clerical or ministerial nature and did require the application of independent judgment, such that she constituted a managerial or supervisory employee. However, the information used in the LRPP was developed by and collected from the various Divisions of the Department. In that regard the evidence demonstrates that

   Ms. Wofford’s true duties were of a ministerial nature and included faithfully reporting to others the information she obtained from others.

10. Petitioner assisted Ms. Wofford in obtaining the information collected from the various Divisions and putting that information into the correct format for easy inclusion into the LRPP. To accomplish these tasks Petitioner utilized Microsoft Word, Excel and Access and had significant experience in those areas. None of the information gathered in preparing the LRPP was exempt from disclosure under the Public Records Act, Chapter 119, Florida Statutes. The information contained in the LRPP was clearly important and sensitive because of its potential impact. The evidence did not show that such information was secret or confidential information. The testimony of the Division Director that he considered everything

    in his office to be confidential is insufficient to establish such confidentiality, since clearly the Sunshine laws apply to his office and much of the information he deals with is subject to public scrutiny. Moreover, such testimony is insufficient to establish confidentiality strictures down to Petitioner’s level of employment.

11. At the time, the DMS conducted the collective bargaining negotiations with unions representing State employees. The Department did not conduct such negotiations. However, the Department had several managers on the advisory council that worked with DMS on collective bargaining with unions. These included Ken Wilson, Sandra DeLopez, a chief from the Highway Patrol, and sometimes one of the agency attorneys. Neither Stacy Wofford, nor her supervisor, Mallory Horne, was the bargaining team. Neither Ms. Wofford, nor Petitioner prepared, or assisted anyone in preparing, collective bargaining proposals to be used in collective bargaining negotiations. Moreover, neither was ever asked to do so.

12. According to Petitioner’s testimony, he preformed two general functions in his position as an Administrate Assistant II: writing computer programs and performing ad hoc clerical tasks for Ms. Wofford. Approximately 80 percent of Petitioner’s time was spent on various computer programming tasks; approximately 20 percent was spent in performing clerical tasks.

    On the other hand, Ms. Wofford described Mr. Snyder as her “right hand person,” and as someone who worked very close with

    her.

    
    

13. The evidence showed that Petitioner’s work in

    
    

    programming consisted of creating various programs that were ultimately used by other administrative units to collect and display data. After creating the programs, Petitioner would turn the application over to the administrative unit for which it was prepared, for its use. He developed programs, to analyze how quickly property was entered into the State property system, customer service surveys, the use of electricity in State buildings and programs for the State childcare facility. These were created, primarily, using Visual Basic for applications and Microsoft Excel.

14. Petitioner’s work on the LRPP was essentially clerical in nature. It consisted of receiving numerous documents from the various Divisions of the Department, and compiling all of the documents into a single document, with consistent formatting. His primary concerns were that the final document used the same typeface, or font, the same margins, and that the various compiled documents fell on the correct page. He had no control over the data; he simply arranged the formatting and entered information into spreadsheet and database programs for use in the LRPP. Petitioner had no policy-making role in the

    development of the LRPP. Petitioner helped Ms. Wofford in assimilating information and verifying that the information being provided by the various program areas was the most recent and accurate. In addition, he made sure that the information was uploaded electronically in the Legislature’s budget system. Petitioner also created the formulas used to get to the output reflected on the LRPP. However, these formulas were basic mathematical formulas and not formulas that used policy parameters in their creation. The evidence did not show Petitioner’s assistance was independent or required significant amounts of independent judgment.

15. Petitioner, also, along with Ms. Wofford, was involved in meetings related to the preparation of the LRPP. These meetings would have included Mr. Neal Standley, Budget Chief, Ms. Sandy DeLopez, Division Director, Mr. Ken Wilson, former Personnel Chief, Ms. Rene Knight current Personnel Chief, and other managers. Again, the evidence did not demonstrate that Petitioner’s role was other than to explain various processes used to create the LRPP. His role did not involve policy judgments or require independent action or judgment.

16. Petitioner did not supervise any other employee; did not give performance evaluations; did not work on collective bargaining grievances or arbitrations or on Career Service

    appeals; and did not assist in developing policies or materials to be used in collective bargaining.

17. Petitioner did not regularly handle information that was not subject to public inspection. Although he performed clerical work on the LRPP, he never knowingly viewed information identifying positions the agency intended to eliminate or consolidate due to reductions in force. In particular, Petitioner did not have access to a database of positions to be eliminated due to reductions in force, and did not know of the existence of any such database.

18. In short, the evidence did not demonstrate that Petitioner was either a managerial employee or an employee involved with confidential matters. Therefore his position should not have been reclassified from Career Service to SES.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this litigation. Sections 120.569 and 120.57(1), Florida Statutes (2005;) and Reinshuttle v. Agency for Healthcare Administration, 849 So. 2d 434 (Fla 1st DCA 2003).

20. Section 110.205, Florida Statutes (2001), states:

    
    

    1. CAREER POSITIONS.— The career service to which this part applies includes all positions not specifically exempted by this part, . . . .

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

       
       

       * * * *

       
       

       (x) 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. Excluded are employees also designated as special risk or special risk administrative support and attorneys who serve as administrative law judges pursuant to s. 120.65 or for hearings conducted pursuant to s. 120.57(1)(a). Additionally, registered nurses licensed under chapter 464, dentists licensed under chapter 466, psychologists licensed under chapter 490 or chapter 491, nutritionists or dieticians licensed under part X of chapter 468, pharmacists licensed under chapter 465, psychological specialists licensed under chapter 491, physical therapists licensed under chapter 486, and speech therapists licensed under part I of chapter 468 are excluded, unless otherwise collectively bargained.

       
       

21. Section 447.203(4) and (5), Florida Statutes (2001) states:

    1. "Managerial employees" are those employees who:

       1. Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment in the

          performance of such jobs and to whom one or more of the following applies:

          1. They formulate or assist in formulating policies which are applicable to bargaining unit employees.

          2. They may reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations.

          3. They have a role in the administration of agreements resulting from collective bargaining negotiations.

          4. They have a significant role in personnel administration.

          5. They have a significant role in employee relations.

          6. They are included in the definition of administrative personnel contained in s. 228.041(10).

          7. They have a significant role in the preparation or administration of budgets for any public agency or institution or subdivision thereof.

       2. Serve as police chiefs, fire chiefs, or directors of public safety of any police, fire, or public safety department. Other police officers, as defined in s. 943.10(1), and firefighters, as defined in s. 633.30(1), may be determined by the commission to be managerial employees of such departments. In making such determinations, the commission shall consider, in addition to the criteria established in paragraph (a), the paramilitary organizational structure of the department involved.

          
          

          However, in determining whether an individual is a managerial employee pursuant to either paragraph (a) or paragraph (b), above, the commission may consider historic relationships of the employee to the public employer and to co-employees.

    2. "Confidential employees" are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4).

22. Because Respondent sought to reclassify the employment position from Career Service to Exempt Service, it bears the burden or proof by a preponderance of evidence that the reclassification met statutory expectations. See Florida Department of Transportation v. J.W.C., 396 So. 2d 778

    (Fla. 1st DCA 1981); Balino v. Department of Health and

    
    

    Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); and Young v. Department of Community Affairs, 625 So. 2d 831

    (Fla. 1993).

    
    

23. Clearly, Petitioner does not meet the definition of a managerial employee since he does not perform any of the specified duties set forth in the statute. Thus, the only basis for reclassifying Petitioner’s position must be based on whether he is a confidential employee.

24. In this case, the evidence did not demonstrate that Petitioner acted in a confidential capacity to either

    Ms. Wofford, who herself was not shown to be a confidential employee, or to anyone up the chain of command from Ms. Wofford. School Board of Polk County v. Polk Education Association, 480 So. 2d 1360 (Fla 1st DCA 1985).

25. During the relevant time period, Ms. Wofford may have been a managerial employee. The evidence was not clear on this point. However, her duties did not involve matters that were confidential and her relationship with Petitioner was not one of

    confidence. The evidence did not show that her duties required the exercise of independent judgment in accordance with Section 447.203(4), Florida Statutes. In preparing the LRPP,

    Ms. Wofford was responsible for providing some analysis regarding which positions would be slated for reductions in force and the Department’s plans to achieve various goals.

    Ms. Wofford also consulted with bureau chiefs in staff meetings and briefings to provide information to the Division Director that could be used in determining where job cuts would be made. However, Ms. Wofford’s role is one of faithfully reporting to her supervisors information provided by others. The evidence did not demonstrate she had any authority or role in making decisions regarding that information. See Patricia Fuller v.

    Department of Education, DOAH Case No. 04-0873SED.

    
    

26. Finally, in Reinshuttle v. Agency for Health Care Administration, 859 So. 2d 434(Fla. 1st DCA 2003), the First District Court of Appeal held that affected employees were entitled to have an administrative hearing before the Division of Administrative Hearings when positions were reclassified pursuant to Section 110.205(2)(x), Florida Statutes. As a result of the Legislature’s mandate, Respondent was authorized to transfer certain positions to SES that met the exemptions set forth in Section 110.205(2)(x) Florida Administrative Code Rule. Chapter 60K-1, dealing with reclassification of positions,

cannot be construed to supersede the provisions of Section 110.205(2)(x), Florida Statutes, since the rule predates enactment of the statute. See Cleveland v. Florida Department of Children and Families District, 868 So 2d 1227, 1229 (Fla. 1st DCA 2004) (agency’s construction of rule rejected because of conflict with legislative purpose and obsolescence due to subsequent statutory measures), Willette v. Air Prods., 700 So. 2d 397, 401 (Fla. 1st DCA 1997) (“A statute take precedence over a rule.”).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law reached it is

RECOMMENDED that a final order be entered finding that Petitioner's position of Administrative Assistant II, is that of a Career Service employee, setting aside the classification as Select Exempt Service, and reinstating Petitioner as a person entitled to rights pertaining to Career Service employees as of the time of his improper reclassification.

DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 December, 2005.

COPIES FURNISHED:

Michael J. Alderman, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

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

Judson Chapman, Esquire Department of Highway Safety

and Motor Vehicles 2900 Apalachee Parkway

Room A-432, Neil Kirkman Building Tallahassee, Florida 32399-0500

Fred O. Dickinson, III, Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Jerry G. Traynham, Esquire Patterson & Traynham

315 Beard Street Post Office Box 4289

Tallahassee, Florida 32315-4289

Melissa Horwitz, Esquire 6840 Highland Park Terrace Tallahassee, Florida 32301

Avery D. McKnight, Esquire Alien, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

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: 05-001602SED

Orders for Case No: 05-001602SED