STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET MITCHELL,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

Respondent.

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) Case No. 05-3365SED

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 19, 2006, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Jerry G. Traynham, Esquire

Patterson & Traynham, P.A. Post Office Box 4289

Tallahassee, Florida 32315-4289

For Respondent: Avery D. McKnight, Esquire

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 employment position was properly reclassified from career service to the selected exempt service pursuant to Section 110.205(2)(x),

Florida Statutes (2001). All citations are to Florida Statutes (2001) unless otherwise stated.

PRELIMINARY STATEMENT

On July 1, 2001, the Department of Children and Family Services (Department) reclassified Petitioner’s employment position from the Career Service System to the Selected Exempt System pursuant to Section 110.205(2)(x), Florida Statutes.

Petitioner was notified by Respondent that she could file a petition challenging the reclassification of her position.

Petitioner timely petitioned for review of the reclassification. The Department forwarded the petition to the Division of Administrative Hearings on or about September 16, 2005. A formal hearing was scheduled for December 1, 2005. The parties filed a Joint Motion for Continuance, which was granted, and the hearing was rescheduled for January 30, 2006. The Department filed an unopposed motion for continuance, which was granted.

The hearing was rescheduled for February 20, 2006. The parties filed a Joint Motion for Continuance, which was granted. The hearing was rescheduled for April 19, 2006.

At hearing, Petitioner testified on her own behalf.

Petitioner’s Exhibits numbered 1 through 3 were admitted into evidence. Respondent presented the testimony of Petitioner, Sarah Craney, and Thomas Sylvester. Respondent’s Exhibits numbered 1 through 3 and 6 through 13 were admitted into

evidence. Official recognition was taken of Florida Administrative Code Chapter 60K-1.

A two-volume Transcript of the final hearing was filed on May 3, 2006. The parties requested and were granted leave to file proposed recommended orders 30 days after the filing of the transcript. The parties filed a Joint Motion for Enlargement of Time in which to file proposed recommended orders. The motion was granted. The parties timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed with the Department beginning in 1988 as a Family Services Counselor. In January 2001, she was promoted to the position of Family Services Counselor Supervisor.

2. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service (SES) effective July 1, 2001.

3. At the time she was promoted, Petitioner carried a full load of cases. Typically, a family services counselor would carry a case load of approximately 40 cases. After her promotion, Petitioner kept working on many of her cases, as opposed to reassigning them to family services counselors who

   were her subordinates. Petitioner insists that she continued to personally work on cases because there were not enough family services counselors to handle the case load and that the work needed to be done. Some of the duties she continued to perform, which were duties normally performed by family services counselors, were writing judicial reviews for court proceedings involving clients, writing case plans, and completing daycare referrals.

4. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she performed supervisory duties, but asserts that she spent less than 50 percent of her time in the performance of supervisory activities. Petitioner acknowledges, however, that the time she spent on non-supervisory tasks lessened as time went on and that by September 2001, more employees were added to the Department and she performed more supervisory tasks. The supervisory tasks that she performed included approving timesheets, and travel and leave requests of the employees she supervised. Petitioner also reviewed and approved reports prepared by subordinates. She had daily contact with her subordinates, in person and by telephone, providing direction and assistance when needed and encouraging employees to meet responsibilities. Petitioner held monthly staff meetings with subordinates which generally lasted one hour

   and coordinated the work of her unit, keeping abreast of court hearings and required reports.

5. Petitioner’s position description is not in evidence.

   
   

   However, a 2001 position description of another Family Services Counselor Supervisor is in evidence and describes the duties and responsibilities of the position as follows:

   This is a highly responsible supervisory position regarding expertise in the management and delivery of the Department of Children and Families services for children and families.

   
   

6. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities:

   60% Supervision and training of counselors and clerical staff who administer the Protective Services and Voluntary Family Services Programs. Administrative duties include, but are not limited to: insuring programmatic policies, goals and procedures are complied with, case review and assignment, evaluates employee performance, develops corrective action plans, statistical reporting, approves leave, maintain case record controls within the unit, and reviews and approves all correspondence including court documents and reports.

   
   

   15% Coordinate and maintain open communications with other C&F units, law enforcement, judicial system, school system and other public and private agencies.

   
   

   15% Participate in staffings and meetings with other supervisors, administrators and

   outside agencies, public speaking, general community relations and training sessions.

   
   

   5% Performs travel in relation to the above duties in order to provide more effective supervision of direct services staff and to evaluate and monitor the delivery of direct services to clients. Travel is also performed for purposes of attending or conducting staff meetings, conferences, training sessions, etc. and in relation to other duties as required.

   
   

   5% Performs other related duties as required.

   
   

7. Thomas Sylvester is currently Program Operations Administrator for the Department. Prior to that, he served as an Operations Manager Consultant II. During that time,

   Mr. Sylvester supervised Petitioner’s supervisor, which placed her in his chain-of-command from October 2000 until her resignation in November 2001. He congratulated her when she received the promotion to family services counselor supervisor and advised her to wean her caseload within 30 days.

8. According to Mr. Sylvester, Petitioner was in charge of a foster care unit, which usually consisted of six family services counselors and a secretary. She was responsible for coordinating the activities of the counselors, reviewing the work product of the employees she supervised, giving them direction, and generally seeing that the work allocated to her unit was done correctly and in a proper manner.

9. Mr. Sylvester considered Petitioner to be a full-time supervisor with the authority to evaluate her employees, hire or recommend hiring, promote or recommend promotion, discharge or recommend discharge, discipline or recommend discipline.

10. Mr. Sylvester confirmed that the position description in evidence for a family services counselor supervisor is a standard position description for that position in 2001 and that the duties and responsibilities on the form would have been the same as for Petitioner. That assertion is accepted as credible.

11. Sarah Craney is an Operations Review Specialist for the Department. In 2001, she was a Program Administrator. She was Petitioner's direct supervisor from approximately August 2001 until Petitioner's resignation in November 2001. Prior to August, Petitioner was supervised by Terry Merkerson.

12. Petitioner recalls that in June 2001, Ms. Merkerson instructed her to remove Petitioner's name from all of the cases that she was handling, with the exception of three cases that involved the termination of parental rights. Petitioner transferred cases from her name to one of her family support counselors under her supervision, Debra Baptiste.

13. Ms. Craney and Mr. Sylvester concur that Petitioner should not have maintained a caseload when she became a supervisor and that it was inappropriate for her to do so.

    Petitioner insists that Ms. Merkerson did not inform her that she needed to transfer the bulk of her cases to her subordinates until June 2001, and that Ms. Merkerson did not specify that she could no longer work on the transferred cases after transferring them to a subordinate.

14. Petitioner's testimony that she continued to work on cases after her promotion in January 2001, which required her to perform many non-supervisory tasks, is accepted as credible. However, she was told in June 2001, the month before the position was reclassified as supervisory, to reassign all but three of her cases. It is not logical that Ms. Merkerson, who did not testify, would instruct Petitioner to transfer the cases yet expect her to continue to do the bulk of the work on them. In any event, as more employees were added, Petitioner began to spend more time on supervisory tasks so that the majority of her time was spent as a supervisor.

15. In October 2001, Ms. Craney wrote a memorandum to

    
    

    Mr. Sylvester and Mr. Barry, the District Administrator, listing concerns Ms. Craney had about Petitioner's work performance as a supervisor and recommending that Petitioner be terminated from employment.

16. Petitioner was employed by the Department until November 2, 2001, when she resigned pending being terminated.

17. The weight of the evidence supports a conclusion that the position of Family Services Counselor Supervisor was properly classified as supervisory consistent with Section 110.205(2)(x), Florida Statutes, and that at the time the position was reclassified in July 2001, Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2005), Reinshuttle v. Department of Children and Families, 849 So. 2d 434 (Fla. 1st DCA 2003.)

19. 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 . . .”).

20. Section 110.205(2)(x), Florida Statues, reads 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.

    
    

21. 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). Based upon the parties’ arguments and the evidence presented, the issue is whether her position was that of a supervisory employee as defined in Section 110.205(2)(x), as opposed to whether it was managerial or confidential.

22. Petitioner raised for the first time in the Pre- Hearing Stipulation the argument that the Department's action of reclassifying Petitioner's position violates Section 120.57(1)(e), Florida Statutes, by applying an unadopted rule. Petitioner does not specify which criteria enumerated within Section 120.57(1)(e) are alleged to have been violated. Petitioner argues that the Department relied on a Department of

    Management Services (DMS) "directive" that Petitioner perceives to be in conflict with the definition of "supervisory" contained within Section 110.205(2)(x), Florida Statutes.1/

23. Petitioner's argument in this regard is rejected. The allegation that first appears in the Pre-Hearing Stipulation is not sufficiently pled to put Respondent on notice as to what it must defend regarding the allegation that it took action based upon an unadopted rule.

24. Even if sufficiently pled, there is insufficient evidence to support this argument. The document in evidence which Petitioner relies upon appears to be a Department internal memorandum, not a DMS directive, which references a "clarification" from DMS as a "guideline." In the Department's answer to Petitioner's Interrogatory 5, which is in evidence, the Department clearly states that the statutory definition found in Section 110.205(2)(x), Florida Statutes, was used to assign this supervisory position to the SES. See also Fuller v. Department of Education, 927 So. 2d 28 (Fla. 1st DCA 2006), (Legislature directed Department of Management Services to restructure the state's personnel system after which the state agencies became responsible for the application of the system and had the authority to reclassify established positions within the classes established by DMS).

25. Petitioner's employment position meets the definition of "supervisory employee" as described above. Accordingly, the reclassification of the position from career service to selected exempt was authorized by the statute.

RECOMMENDATION

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

RECOMMENDED:

That the Department of Children and Family Services enter a final order finding that the position held by Petitioner Janet Mitchell July 1, 2001, was properly classified into the selected exempt service.

DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 28th day of July, 2006.

ENDNOTE

1/ In her Proposed Recommended Order, Petitioner retreats somewhat from her position in the Pre-Hearing Stipulation by arguing that DMS's memorandum to all agencies "may have applied an unadopted rule in reclassifying her position within SES." (emphasis supplied)

COPIES FURNISHED:

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

Jerry G. Traynham, Esquire Patterson & Traynham, P.A. Post Office Box 4289 Tallahassee, Florida 32315-

Gregory Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Copelan, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Luci D. Hadi, Secretary Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 05-003365SED

Orders for Case No: 05-003365SED