The Issue Whether Respondent, Jean M. Hovey, willfully violated Subsection 106.143(1)(a), Florida Statutes (2008), as alleged in the Order of Probable Cause dated August 26, 2009, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent was a candidate for Winter Springs, Florida, city commission in 2008. Respondent was a first-time candidate for public office. She evidenced her decision to enter the city commission race by qualifying on August 28, 2008, one day prior to the deadline to qualify. A component of qualifying is the candidate's assertion that they have read and understand the requirements of Chapter 106, Florida Statutes. As a result of her late filing, Respondent had only five or six weeks to actively campaign. Responding to the advice of volunteer advisors, on September 4, 2009, Respondent hired Denise Ryser to manage her campaign. Ms. Ryser had previously managed a successful city commission race and was managing two other Winter Springs city commission races. Ms. Ryser was qualified to manage a city commission campaign. Ms. Ryser's initial focus was to prepare a campaign mailer. It was important that the mailer be presented to the voters as quickly as possible. Respondent provided the biographical information for the mailer; Ms. Ryser did the graphics, layout, color selection, and the "marketing" of the mailer. Several layouts/mock-ups of the mailer were prepared by Ms. Ryser and submitted to Respondent for approval. Each layout/mock-up submitted to Respondent contained the statutorily-mandated disclaimer. Subsection 106.143(1)(a), Florida Statutes, requires that: Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the day of, any election must prominently state: "Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought)." After Respondent finally approved what she believed to be the final layout/mock-up, Ms. Ryser, on September 19, 2008, electronically forwarded a layout/mock-up to a printer in Miami. Inexplicably, the layout/mock-up forwarded by Ms. Ryser did not contain the statutorily-mandated disclaimer. This failure was attributed to a transmission error. Because Ms. Ryser perceived a need for "handouts" to be distributed by Respondent at personal appearances, Ms. Ryser, on the same day, September 19, 2008, ordered 100 additional mailers from a local printer. These mailers contained the statutorily- mandated disclaimer. When the Miami printer returned the mailers to Ms. Ryser, without further examining the mailers, she took them directly to a "mail-house" in Winter Park, Florida, to be mailed to 11,000 registered Winter Springs, Florida, voters. They were mailed on October 2, 2008. Respondent did not receive a mailer, as she was not on the mailing list. Ms. Ryser received a mailer at her home on Saturday, October 3, 2008. It was not until Sunday, October 4, 2008, that she noticed the absence of the statutorily-mandated disclaimer. Ms. Ryser immediately called Michael Ertel, Seminole County, Florida, supervisor of elections, and advised him of the error. Mr. Ertel did not testify. However, the parties stipulated that he would have testified that he advised Ms. Ryser to remail the mailer with the proper disclaimer and destroy the remaining mailers without the disclaimer. On Monday, October 6, 2008, Ms. Ryser discarded the mailers in her possession. At Ms. Ryser's direction and paid for by her, the mail-house printed the appropriate disclaimer on the remaining 3,000 mailers in its possession and mailed them to voters. On Tuesday, October 7, 2008, Respondent attended a candidates' night at Highland's in Winter Springs, and mailers were available to the public at this event. Unrefuted testimony indicates that Respondent's mailers, without the statutorily- mandated disclaimer, were available to the public at this meeting. Respondent did not learn that the mailers did not have the statutorily-mandated disclaimer until October 8, 2008, when she and her volunteer campaign advisors confronted Ms. Ryser about the error. Ms. Ryser acknowledged that the failure to include the statutorily-mandated disclaimer was her error and that Respondent was unaware of the error until October 8, 2008.
The Issue The issue in this case is whether the Petitioner's request to become a candidate for election to the office of County Judge while retaining his state employment should be granted or denied. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5313R and 87-5437, At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this recommended order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied ". . . because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons serves as the Administrator of Forensic Services at Florida State Hospital in Chattahoochee, Florida. Mr. Parsons has administrative responsibility for the day-to-day operations of the Forensic Unit. The Forensic Unit houses psychiatric patients who have been placed in the hospital in connection with criminal charges. These patients have been found incompetent to stand trial on criminal charges, have been committed as "mentally disordered sex offenders," or have been hospitalized after having been found not guilty of criminal charges by reason of insanity. Mr. Parsons answers directly to the Administrator of Florida State Hospital. Mr. Parsons supervises approximately 700 employees. Mr. Parsons has performed his job duties in an exemplary manner. He has always received the highest evaluations and he has been an innovative leader of the Forensic Unit. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. Mr. Parsons will conduct his campaign activities in such a manner as not to interfere with his employment with DHRS. If DHRS prefers, he will take a leave of absence without pay from his employment during the course of the campaign. If his supervisor does not wish for him to take a leave of absence, Mr. Parsons will conduct his campaign without a leave of absence. In either event, Mr. Parsons will conduct no campaign activities while on the job and he will utilize no state facilities in his campaign. It is possible that Mr. Parsons' job with DHRS would make it difficult for him to campaign at certain times. In the event of such conflicts, Mr. Parsons will give precedence to his job responsibilities and will forego campaign activities to the extent they conflict with the fulfillment of his job responsibilities. There are limited times during which Mr. Parsons serves as the Administrative Officer of the Day for Florida State Hospital, as well as limited times when he serves as the Administrative Officer of the Day for the Forensic Unit. During these times he is required to be in contact with the hospital by "beeper" on a twenty-four hour basis. The beeper service used by the hospital for Administrative Officers of the Day allows the officer to be contacted at any location in Gadsden or Leon County. Mr. Parsons' campaign activities would be conducted in Gadsden County only and he would be available to respond as Administrative Officer of the Day to the same extent that he and other employees who share this duty are presently available. Mr. Parsons' campaign activities would not conflict with his job responsibilities with DHRS. Indicative of his ability to conduct outside activities without interfering with his job responsibilities at DHRS is the fact that Mr. Parsons has conducted a part-time private practice of law during the past three years without any conflict with his DHRS job responsibilities. The Department of Administration has adopted rules regarding requests to run for or hold local public office. Those rules provide, in pertinent part, as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the foregoing rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the foregoing rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioner's request to become a candidate for election to the office of County Judge DONE AND ENTERED this 19th day of February, 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial 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 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.
Findings Of Fact The Petitioner is employed by the Florida Department of Transportation (DOT) as an Engineer I in the Tallahassee Maintenance Facility for District 3. District 3 covers Leon, Gadsden, Jefferson, Liberty, Franklin, and Wakulla Counties. The Petitioner reviews, revises, and approves plans for use of the Department's right-of-way, and issues permits to use the DOT right-of-way. This function involves the right-of- way for all state highways to include federal aid primary roads; however, this is a maintenance function upon which no federal funds are expended. DOT is a "state or local agency" as defined in 5 U.S.C.A., Section 1501(2), whose work is "financed in whole or in part by loans or grants made by the United States or Federal agency." The Petitioner has been assigned only to work on projects that are 100% state funded. The Petitioner's salary is paid totally from state funds. However, there is no restriction or prohibition to Petitioner being assigned to new duties involving federally-funded projects. 3/ Although Petitioner is employed by DOT, his principal employment is not "in connection with an activity financed in whole or in part by loans or grants made by the United States or Federal agency." He is not a "state or local officer or employee" as defined in 5 U.S.C.A., Section 1501(4). Additionally, Petitioner "exercises no function in connection with" the federally-funded activity carried on by DOT. By letter dated April 16, 1990 to Billy Miles, Personnel Manager, District 3, the Petitioner requested permission to be a candidate for the Office of School Board, Liberty County, Florida, a local public office, in the upcoming election for 1990. Election to the Office of School Board is a partisan election. Four years ago, in 1985, the Petitioner requested and received permission from the Secretary of the Department to run for the same office. See Petitioner's Composite Exhibit 2, Letter from Lambert to Ferguson, dated June 14, 1985. Petitioner requested approval to run again for the same office and the request was denied on the basis that the Secretary of the Department, on advice of legal counsel, had determined that all DOT employees hold positions which are covered by the Hatch Act. See Petitioner's Composite Exhibit 2, Letter from Ferguson to Phillips, dated June 14, 1990. The deadline for qualifying for the office which Petitioner seeks is 12:00 noon on July 20, 1990. Section 99.061, 100.031 and 100.061, Florida Statutes. Therefore, Petitioner's request was timely under Rule 22A-13.031(1), Florida Administrative Code, since it was over 90 plus days before the deadline for qualifying on July 20, 1990. Petitioner's request was forwarded by Mr. Waddell to David Ferguson, by memorandum dated April 30, 1990, with a recommendation for approval. On May 30, 1990, David Ferguson forwarded Petitioner's request to Secretary Watts, with a recommendation of disapproval based solely on the opinion of the General Counsel that all employees, without exception, were prohibited from becoming a candidate in a partisan election by the Hatch Act. By letter dated May 8, 1990, David Ferguson advised Petitioner of Secretary Watts' decision to disapprove his request on the basis that all DOT employees are subject to the Hatch Act. On May 14, 1990, the Petitioner requested a formal hearing, and on May 24, 1990, the DOT forwarded the matter to the Division of Administrative Hearings. It was determined by Petitioner's intermediate supervisor that there is no School Board interest or activity which conflicts or interferes with Petitioner's employment with DOT. The basis for denying the Petitioner's application was not conflict of interest. There was no evidence that there was any conflict of interest. There was no evidence presented by DOT that Petitioner's position was one funded by Federal funds or grants.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent, Florida Department of Transportation, enter a Final Order finding that the Petitioner is excluded from the provision of the Federal Hatch Act and approve his request to become a candidate for the Office of School Board of Liberty County. DONE AND ENTERED this 11th day of July, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 11th day of July, 1990.
The Issue The issues before the Hearing Officer were defined as follows: Whether the Respondent is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representative election petition under Florida Statutes, Chapter 447. Whether the Employee Organization is a properly registered organization within the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before PERC. The Petitioner and the Employer stipulated that the Employer is a Public Employer and Petitioner is an Employee Organization within the meaning of Chapter 447, Florida Statutes. As to issue number 3, the PERC record reflects a sufficient showing of interest, and the Employer did not seek to show any fraud, misrepresentation, etc. regarding the signature cards submitted by Petitioner. Issue number 4 resulted in an admitted stipulation by the parties that the Petitioner is a registered organization. For the purposes of this brief, only issue number 5 remains to be considered.
Findings Of Fact The Employer, through witness Henry Willis, Assistant Director of Personnel, testified that the County, through its recently adopted Civil Service Career Program in September 1974 and through its Personnel Department, provided the following services countywide throughout all divisions and department, inter alia: Testing new applicants for employment. Interviewing new applicants for employment. Recommending new applicants for employment. Provides for all transfer policy. Provides for all discipline policy. Provides for all common benefits policies, such as: Common Leave policy. Common Promotion policy. Common Pay Plan. Common Insurance Plans. Common Recordkeeping (personnel files). Administers the reduction in force policy. Coordinates all inter-division and department personnel policies. Processes grievances and employee disputes. Prepares job descriptions for all County jobs, defining skills and duties for such jobs. In addition to the above, Mr. Willis testified that the County employs a category of employees (approximately 206 in all) referred to as CETA employees. This general description encompasses employees hired pursuant to federal grants and are paid from federal grant monies. CETA employees must enjoy, pursuant to the terms of the grants, all County Civil Service benefits except that they do not take the Civil Service examination, their tenure is determined by the federal grant under which they are hired, and they have no bumping rights, nor can they be bumped. If a CETA employee converts to Civil Service employment, the employee must take the Civil Service examination and tenure or time of service is computed from the date the employee becomes a Civil Service employee. CETA employees are employed in a variety of job categories to include jobs throughout the County. They are assigned to work alongside other Civil Service employees. CETA employees receive comparable pay, benefits, and have the same supervisors as Civil Service employees. CETA employees may also be designated, if qualified, to become a foreman or supervisor if such a position were approved as indicated below. It should be noted that CETA employment is dependent upon federal grant momies which are annual grants, and that although CETA employees have the same compensation package as Civil Service employees, they do not have the degree of job security but are dependent upon continued federal grants. CETA positions have to be created and generally correspond to the entry level position within Civil Service. Because of low job security and low pay, there is a higher turnover rate with CETA employees. Exhibit 1 is an organizational chart of the Broward County Government. There are seven departments under the County Administrator, and various divisions under each of these departments. The employees which Petitioner seeks to represent are all located within the maintenance division of the Department of Central Services. Exhibit 2 indicates the number and type of unskilled and semiskilled employees within the Broward County government by division. This exhibit indicates, in addition to the trades and trades helpers, all such positions with the organization of the Employer. Employer's Exhibit 2 states by name and position title the unskilled and skilled employees within each of the divisions within the county. The number of such employees in each division, as follows, was extracted from Exhibit 2: Central Warehouse 5 Motor Pool 3 Maintenance 104 Convict Camp 1 Motor Vehicle Inspection 93 Medical Examiner 5 Lot C1earing 4 Engineering Traffic 33 Mosquito Control Local 12 County pound 21 Youth Services 16 Parks and Beaches 85 Water Management 11 Agriculture 11 Airports 44 Roads and Bridges 125 Utilities - Solid Waste 64 Utilities - Waste Water 119 Witness Liaison Program 2 Mental Health Funding Agreement 13 The Petitioner seeks to represent 107 of the 764 unskilled and semiskilled employees of the County, or approximately 14 percent of the total number. There are a total of 41 CETA employees who are employed in unskilled or semiskilled positions, 26 of which are employed in trades or as trades helpers. Five such CETA employees are employed within the Maintenance Division. As indicated in Exhibit 2 and the record, the Employer employs mechanics, painters, vehicle equipment operators, carpenters, plumbers, electricians, gardeners, stock room employees, welders, locksmiths, air conditioning employees, parking lot attendants, custodians, etc., who primarily work within their own divisions within the County structure. However, there is some exchange of services between the various departments and Divisions. As an example, the Division of Roads performs work at the airport, even though the airport employs its own road crews. Likewise, the Division of Maintenance provides service for approximately ninety-four (94) County-owned or lease buildings throughout Broward County, Florida. Regarding the position of superintendents and whether they should be excluded, the record indicates that the Division of Maintenance has 160 employees, two superintendents and one director. One of the two superintendents is in charge of the mechanical trades employees and the other is in charge of the carpenters, painters, custodians, and welders. The superintendents carry out their duties through his working foreman. The superintendents have disciplinary authority and are empowered to resolve grievances, if possible, at their level. The superintendents present requests for specific equipment, tools, and personnel from which the director prepares the divisional budget. The director only has the authority to release personnel. The superintendents assign work to the various foremen for accomplishment. The superintendents constitute the level of administration between the director and the foreman. The record reflects that Broward County, at the time of hearing, had entered into collective bargaining contracts or was in the process of doing so with County fire fighters, airport police, and the employees of the Mass Transit Division. Petitioner argued, specifically with regard to the voluntary recognition of Local 1267 representing the transit workers, that this recognition was inconsistent with the Employer's position with regard to the unit under consideration, and indicated that the Employer had already recognized a divisional unit. The Employer introduced evidence and testimony that what is now the Mass Transportation Division was once a private company acquired by the County. In order to receive federal funds, pursuant to the provisions of Section 13(c) of the Urban Mass Transportation Act of 1964, the County executed two agreements (Exhibit 6A in 1972 and Exhibit 6B in 1975) which guaranteed no diminution of rights, specifically collective bargaining rights, as a result of the County acquisition of the private company. In 1975 when the contract expired, the County, being satisfied with the union's majority status as a result of a recent election, voluntarily recognized the union's majority status. The Employer argues that the voluntary recognition of what constitutes a divisional unit in mass transit is not inconsistent with its position in regard to Petitioner's proposed unit but is distinguishable on the facts. The Employer argued that the proposed unit would fragment and compartmentalize employees who share a community of interest as Civil Service or CETA employees who had virtually the same types of job classifications. Further, the Employer asserted this violates the criteria provided in Section 447.009(4), F.S. The Petitioner presented testimony that the employees of the Division of Maintenance desired representation by Petitioner, and that the history of collective bargaining showed the Employer to have recognized fire fighters, police, and transit workers units. The Petitioner indicated its desire and willingness to participate in any directed election in any unit found to be appropriate by PERC. This report respectfully submitted this 30th day of January, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Theodore P. Mavrick, Esquire Counsel for the Petitioner Joseph A. Caldwell, Esquire Counsel for the Public Employer Chairman Public Employees Relations Commission
