The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue Is Hardee County statutorily authorized to submit payment to upgrade service credit for a former member of the Elected Officers' Class (EOC), Florida Retirement System (FRS), when the member held office after his subclass, EOC, was established, and opted for membership in a class other than EOC, within the purview of Subsection 121.052(5)(a), Florida Statutes (2000)?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Division is the agency of the State of Florida that is charged with regulating and administering the FRS, both the Regular Class and EOC. In November 1988, Bryant was elected to the County Commission of Hardee County, Florida. Upon being elected in 1988, Bryant was given the option under Chapter 121, Florida Statures, to participate in either the Regular Class or EOC of the FRS. On November 28, 1988, Bryant signed a Division of Retirement Personal History Record (FRS-M10) designating his wife, Mary B. Bryant, as the primary beneficiary of his retirement benefits. The portion of the FRS-M10 to be completed by the employer indicated the reason for submitting the FRS-M10 was for enrollment and the Plan chosen was FRS Regular. The distribution on the FRS-M10 indicated that the employee (Bryant) was to receive a copy. On December 6, 1988, Bryant signed a document entitled: "Ballot For Elected County Officials" (Ballot). In pertinent part the executed Ballot provides: As an elected officer who is eligible for optional membership in the Elected State Officers Class (ESOC) of the Florida Retirement System (FRS), I hereby select membership as follows: I wish to join the Elected State Officer's class, or X I wish to participate in the FRS Regular Class, or ___ I wish to participate in the FRS Special Risk Class (elected sheriffs only), or ___ I do not wish to participate in the FRS in any manner. In addition, the Ballot included the following cautionary language: I understand the provisions of the different classes and that my selection will be effective on the first day of the month during which my employer changes my payroll records. Elected county officers will have one year from date they assume office after election or reelection to make the above selection. If the elected county officer did not make a selection within the one-year time period, the member would be automatically placed in the Regular Class of FRS. Marilyn A. McCready, Personnel/Payroll Aide for Hardee County, completed the employer's portion of the Ballot and forwarded the Ballot to the Division on December 6, 1988. On the upper right hand corner of the Ballot is the notation: "OK/RH/He will upgrade if Re-elected." Robert Henning (Henning), an employee of the Division, testified that the initial RH was his, and that he had made the notation on the Ballot. Henning's testimony, which I find to be credible, was that, during this time period, when an elected officer selected to participate in the Regular Class rather than the EOC, it was his policy, and the policy of the Division, to contact the employer and, if possible, the elected officer to verify the elected officer's choice. In this case, Henning does not have a present recollection of having talked to either the employer or to Bryant concerning this matter. However, the notation indicates that he either talked to the employer or to Bryant, or to both. In any event, Henning was advised by one or the other that Bryant would upgrade his selection if re-elected. Bryant contends that he did not make the selection of FRS, Regular Class on the Ballot which he signed on December 6, 1988, but that someone in the Personnel Office of Hardee County inadvertently designated FRS, Regular Class as his choice. However, Bryant also testified that he did not normally sign blank documents, which would indicate that the Ballot had been marked by Bryant or someone else before Bryant executed the document. If the Ballot had been marked by someone other than Bryant before Bryant signed the Ballot, then Bryant would have, or should have, had knowledge of the selection of FRS, Regular Class as his choice even though he may not have personally marked the Ballot. Bryant was re-elected to the Hardee County Board of County Commissioners in November 1992. In December 1992, a change of plan from Regular to EOC was executed and Bryant became a member of the EOC. There is insufficient evidence to establish facts to show that someone in the Hardee County Personnel office marked an "X" on the Ballot indicating that Bryant wished to participate in Regular Class rather than participate in the EOC. Bryant knew, or should have known, at the time he signed the Ballot, that an "X" had been placed on the Ballot indicating his wish to participate in the Regular Class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that the Division of Retirement enter a final order denying Petitioner the relief sought in his Petition for Hearing and Appeal of Final Agency Action DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 23rd day of October, 2001. COPIES FURNISHED: William J. Roberts, Esquire Nabors, Giblin & Nickerson, P. A. Post Office Box 11008 Tallahassee, Florida 32302-3008 Larry D. Scott, Esquire Division of Retirement Department of Management Services Post Office Box 3900 Tallahassee, Florida 32315-3900 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this proceeding is whether Petitioner's position was properly reclassified from Career Service status to Selected Exempt status.
Findings Of Fact Prior to July 1, 2001, Petitioner, Jolly was employed in the Comprehensive Health Planning Section of the Programs, Regulation and Health Facilities Division of the Department of Children and Family Services (DCFS) in a Career Service employment position classified and titled Administrative Assistant II Career Service. At the time, Petitioner held permanent Career Service status. The Administrative Assistant II position was certified by the Public Employees Relations Commission (PERC) as within the Career Service Administrative-Clerical collective bargaining unit, represented by the Florida Public Employees Council 79, AFSCME. In her position, Petitioner performed clerical functions. She did not supervise other employees, perform any managerial functions, or perform any confidential duties. She had no role in labor relations, collective bargaining, the adjustment of grievances filed by employees, or the imposition of discipline upon other employees for breaches of conduct. Similarly, Petitioner had no role in the preparation of agency budgets for collective bargaining, or for other purposes. Sometime around June 15, 2001, Petitioner was notified by DCFS that her position as an Administrative Assistant II would be reclassified as a position within the Selected Exempt Service (SES). The reclassification was effective July 1, 2001. No input from the Petitioner regarding the duties of her position was sought by the Department in its decision to reclassify Petitioner's position. Indeed, the Department reclassified the position based on the fact that Petitioner assisted or aided managerial employees and allegedly had access to confidential material. However, there was no evidence in the record that Petitioner's position involved any confidential matters. Petitioner was terminated from employment with DCFS, without explanation, on June 28, 2002. In terminating her employment as an Administrative Assistant II, DCFS represented that Petitioner had no appeal rights either to PERC or under the bargaining agreement between AFSCME and the State of Florida because her position had been reclassified. However, the evidence does not demonstrate that Petitioner's position was managerial, confidential or supervisory. Therefore, Petitioner's position should not have been reclassified to SES and she is entitled to her rights as a Career Service employee.
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-3. Accepted as Background information. 4-6. Incorporated in Finding of Fact 2. 7-8. Incorporated in Finding of Fact 3. 9. Incorporated in Finding of Fact 9. 10-11. Incorporated in Finding of Fact 11. Rejected as irrelevant. Rejected as redundant of Finding of Facts 9-10 and 11. 14-15. Rejected as a Conclusion of Law and not a Finding of Fact. COPIES FURNISHED: Byron B. Mathews, Jr., Esquire Monroe-Park Tower, Suite 1090 101 North Monroe Street Tallahassee, Florida 32301 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 A.J. McMullian, III, Director Division of Retirement Department of Administration Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Dr. H. Lewis Schoettle, be denied out-of-state credit for the period 1963-1965, when he was employed as a teacher on Kwajalein Atoll. RECOMMENDED in Tallahassee, Florida, this 11th day of September, 1986. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1330 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Human Development Center (HDC) is a nonprofit corporation dedicated to providing services to mildly and moderately mentally retarded clients received primarily through the respondent Department of Health and Rehabilitative Services (HRS). The services provided include transportation, education, and training for the development of daily living skills, recreation skills and work-related skills. A one-year written contract existed between HDC and HRS for the provision of and payment for the professional services of education, training and transportation for HRS clients. The termination date of this contract was September 30, 1900. As early as February of 1980, negotiations began as to the rates for a new written contract for the provision of these same services for the following year beginning on October 1, 1980. In August of 1980, petitioner was advised of the Grant Review Committee's recommendations concerning the rates which HRS would allow for the provision of services during the next contract year. A special audit review team conducted an analysis of petitioner's facility and found insufficient ground for awarding levels of funding in excess of those recommended by the Grant Review Committee. By letter dated September 22, 1980, petitioner's Executive Director was notified by respondent that respondent was in the process of preparing the contract for the following year and the contract amounts were stated. In a letter dated September 25, 1980, petitioner's Executive Director notified respondent that the proposed contract rates were unacceptable and advised respondent of the rates it would charge effective October 1, 1980. This letter stated: "Should you choose to have your HRS clients continue in the Sunrise Program beyond September 30th, 1980, you will be billed at these rates." Based upon petitioner's refusal to enter into a contract with respondent, respondent orally advised petitioner on September 29 or 30, 1980 that HRS clients would be removed from petitioner's facility. On September 30, 1980, respondent's District Program Supervisor for Developmental Services went to the petitioner's facility for the purpose of removing those clients in the custody of HRS and advising other clients of the status of the contract between petitioner and the respondent. Many clients expressed a desire to remain at the petitioner's facility. Alternative placement plans were pursued by respondent during the month of October, 1980. Petitioner's Executive Director was advised that payments for room and board, as well as for additional other services on a pre-authorized basis, would be provided for HRS clients remaining at the facility. This agreement was affirmed in writing by letter dated October 2, 1980, which stated: "To facilitate counselling clients as to their rights and plan for placement in other facilities, HRS will continue to provide Long Term Residential Care funds. These monies will provide for basic care and supervision. Any additional services will be purchased on an individual client basis and is to be pre-authorized by the social worker. (Example: transportation of employed clients to place of employment through reimbursement at 19 cents a mile.) Expiration of the 1979-80 Purchase of Services Contract prohibits any payment by HRS of services previously covered by that contract." Respondent did pay petitioner for its clients' room and board during October of 1980 in spite of the fact that no written contract existed. Although it never sought pre-authorization for the provision of additional services, petitioner continued to provide the additional services of education, training and transportation to HRS clients. Effective November 1, 1980, petitioner and respondent did enter into a new contract for the provision of such services for the following year. On or about November 3, 1980, petitioner submitted to respondent five invoices for the payment of services performed during October of 1980. Respondent refused payment by letter dated November 18, 1980, stating, in part: "Lack of a contract between HRS and the Human Development Center during the month of October prohibits payment of the purchase of service invoices submitted with your letter of November 3, 1980. . ." After various requests by petitioner for the payment of invoices for services provided in October, 1980, were denied by the respondent on the basis of lack of a written contract for that month, HDC petitioned for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition was referred to the Division of Administrative Hearings and that case was consolidated for hearing purposes with the instant case. Human Development Center v. Department of Health and Rehabilitative Services, DOAH Case No. 81- 2137, Recommended Order entered on March 10, 1982. In the course of discovery in DOAH Case No. 81-2137, respondent HRS denied the allegation in the petition that it had "no rules establishing how and under what circumstances emergencies will be declared in order to pay providers sums of money to which HRS claims that it would not otherwise be entitled." Respondent referred to two documents which "set out the criteria to be used for emergency certification of contracts pursuant to Sec. 287.057, F.S." The instant proceeding challenges these two documents as invalid rules.
Findings Of Fact In March 1987 DHRS published a Request for Proposal (RFP) for a Comprehensive Manpower Employment Service Programs for Refugees and Entrants (Exhibit 5) which established a time frame for bidders to submit proposals to provide services for the year beginning July 1; 1987 and ending June 30, 1988; established criteria for the services to be provided; and contained all information necessary for a bidder to submit an acceptable bid. Pursuant to this RFP, Hillsborough County, Lutheran Ministries of Florida, Inc., and Catholic Social Services submitted proposals to provide the services authorized by federal statute to be provided to refugees and entrants predominantly from Cuba/Haiti and Indochina. Pursuant to this RFP; bidders are required to submit a plan which identifies the services to be provided and a line item budget of anticipated allowable costs that will be incurred in the delivery of the services. Each bid is to be reviewed by at least three HRS employees familiar with the objectives and requirements of this social services program using the rating sheet as shown in an appendix to the RFP. The raters grades are totalled, and the contract is to be awarded to the bidder whose proposal is determined, through the evaluation process, to be most advantageous to the State, taking into consideration program and organizational capability, previous experience and understanding of the project (Exhibit 5 p. 25) Five qualified raters evaluated the proposals submitted by the bidders. The totals of the grades given by these raters, four of whom testified in these proceedings, was 603 for Petitioner and 1360 for Lutheran Ministries, thereby indicating the bid by Lutheran Ministries to be far superior to the bid by Hillsborough County. For the past three years, Lutheran Ministries has held the contract to provide services to refugees and entrants while Hillsborough has held the contract, also from HRS, to operate a program intended to mitigate the impact on counties affected by the large influx of Cubans and Haitians entering this country at the time of the Mariel boat lift and after. The former funds are social services funds and the latter are designated Targeted Funds. Although both funds are operated out of the same DHRS office, they are distinct and separate appropriated funds. The 1986 Legislature failed to provide Targeted Funds for the year beginning January 1, 1988. Accordingly, there will be no Targeted Funds awarded to Hillsborough County to use after December 31, 1987. Apparently to preserve the jobs to carry out assistance to various aliens, Hillsborough County submitted its bid to provide services to refugees similar to the services it has been providing to immigrees. Petitioner's bid provided for payment of salaries totaling $40,197 for six months, travel costs for six months and specialized transportation costs for six months. Petitioner apparently intended to use the anticipated funds, if its bid was accepted, to continue the staff employed in carrying out the mission to be accomplished with Targeted Funds for the six months between January 1, 1988 and June 30, 1988, with their salaries for the first six months (July - December 1987) paid from Targeted Funds. Having submitted a bid which clearly shows only six month funding for personnel and certain travel costs, Petitioner's contention that the raters misinterpreted the proposed program year is without merit. Although the bid proposal showed it was for the period July 1 1987 to June 30, 1988, the cost for one year's operation was not shown and Petitioner's bid was properly downgraded for this reason. That Petitioner's proposal was intended as a substitution and/or continuation of the Refugees/Entrants Employment Services (REES) program which it had administered for the past three years is shown in their proposal (Exhibit 2 p. 7) that "Effective July 1; 1987; the REES program will increase its level of services by adding 0JT and day care to its comprehensive employment." It shows targeted assistance dollars funding comprehensive employment and transportation for the first six months of the program year through December 31, 1987. Such language rightfully led the raters to question what type services would be provided to the refugees under Petitioner's proposal. Petitioner's contention that bid proposals were not rated on their individual merit, but rather were compared to each other, not only is unsupported by any evidence but also every rater who testified stated that no comparison of bids was made. The remarks on the rating sheets which were relied upon by Petitioner to support this contention disclose another failure by Petitioner to comply with the RFP. The RFP (Exhibit 5) provided under Part IV General Information (p. 13) that specific questions regarding the RFP and its provisions should be addressed to Millie Coten and that an original and nine copies of the proposal are required. The Hillsborough County audit which was required as a part of the proposal comprised some 80 or 90 pages, which was nearly half of the proposal submitted. In order to eliminate the cost of reproducing 10 copies of this audit, Jimmy Keel, director, Department of Public Assistance for Hillsborough County, called Michael Simmons, district budget officer for HRS Tampa office to see if they had to include audits in all of these copies. Simmons told Keel that since there would be only five raters, if the audit was included in five copies of the bid, that would be acceptable. Simmons was not the contact officer in the RFP to answer questions regarding the RFP and no evidence was presented that he had such authority. This discrepancy in complying with the RFP came to light during a meeting of the raters when it was discovered that at least two of them did not have a complete bid from Petitioner. Petitioner's contention that it was rated on criteria not contained in the RFP is allegedly supported by raters' comment on the rating sheets that the salaries for those running the program proposed by Petitioner are too high. For the four positions proposed by Petitioner to run the program, the annualized salary is in excess of $80,000. The cost of providing the proposed services for one year is expected to be less than $80,000. In looking at proposed salaries in such bids, the raters use salaries paid HRS employees for similar duties and responsibilities as well as common sense. The fact that some such standard is used to determine the appropriateness of salaries in bids received should surprise no one. It is well understood by people bidding on HRS service projects that such a salary comparison is made to determine the appropriateness of salaries to be paid by contractors providing the contracted for service. The contention by Petitioner that it was rated on criteria not contained in the RFP is without merit. Petitioner's next contention that raters were not familiar with all of the definitions and requirements of the RFP was supported by no credible evidence. The four raters who testified all stated unequivocally that they fully understood the definitions and requirements of the RFP. The second allegation to support this position involved the fact that as a governmental agency Hillsborough County does not have a board of directors and articles of incorporation and because of this did not receive maximum points on their rating item. This position is not supported by the evidence. The grades of less than maximum on those items were changed to give Petitioner the maximum grade score before the totals were added. Finally, Petitioner's contention that the raters were confused by, and misunderstood the contents of, Petitioner's proposal yet failed to contact Petitioner for clarification not only is not supported by any credible evidence, but also ignores the RFP requirement (Part V p. 20) that: It is the responsibility of the applicant to develop the proposal as clearly and succinctly as possible in order to avoid misinterpretation of the information presented. Proposals will be reviewed and evaluated solely on the basis of the information contained therein. No evidence was submitted by Petitioner to show that even if Petitioner had been incorrectly rated on some of the rating sheets, a change in those ratings would have brought Petitioner's total score, and hence rating, up to that attained by Lutheran Ministries so as to make Petitioner the successful bidder.
The Issue This matter concerns the Petitioner's attack on Rules 22A-13.04 and 22A- 7.10(4)(a), Florida Administrative Code, on the grounds that they are invalid exercises of delegated legislative authority within the meaning of Section 120.56, Florida Statutes.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
The Issue Whether Petitioner is entitled to "in-the-line-of-duty" death benefits as the surviving spouse of a member of the Florida Retirement System, pursuant to the provisions of Section 121.091(7)(d)1., Florida Statutes.
Findings Of Fact The Petitioner, Cynthia Hylton, is the surviving spouse of Christopher Hylton, a certified law enforcement officer employed as a deputy sheriff with the Orange County, Florida, Sheriff's Department from April 3, 1989, until his death on July 22, 1996. Deputy Hylton was a member of the Florida Retirement System since April 3, 1989. At the time of his death, Deputy Hylton was a 39-year- old male in excellent health, who did not smoke, did not need glasses, and had good reflexes and vision. Deputy Hylton was a full-time deputy sheriff assigned to Zone 42 of Sector 4 in the unincorporated area of Orange County, Florida. Routinely, his law enforcement duties were performed within the geographical limits of that zone. Deputy Hylton generally was on duty 10 hours per day, four days per week. He was assigned to the Zone 42 day shift under the supervision of Sergeant D. Martin. The day shift's regular duty hours extended from 5:30 a.m. to 3:30 p.m. Under the authority of the Florida Sheriff's Mutual Aid Agreement, routine law enforcement assistance by a sheriff or his deputies is permitted across jurisdictional lines with the prior approval of the sheriff having normal jurisdiction in the county being assisted. Two types of law enforcement assistance can be provided under the Mutual Aid Agreement: (1) Operational Assistance during disturbances and disasters and (2) Voluntary Cooperation in enforcement of violations of Florida Statutes. Back-up services during patrol activities are included under voluntary cooperation and cover law enforcement activities of Orange County deputies in Volusia County. An off-duty deputy traveling in another county in Florida who observes a felony or misdemeanor in progress is required to take law enforcement action. In the case of an on- coming vehicle weaving across the center lane of a two-lane roadway, a deputy is required to take evasive action, first by pulling off the roadway, then turning around, and following and observing the vehicle. In addition, the deputy should then contact the local law enforcement agency and notify them of the situation and continue following the vehicle until the local agency can safely stop and arrest the suspect. The officer would then give a statement to the arresting officer and make himself available as a witness. Deputy Hylton, as a law enforcement officer with the Orange County Sheriff's Department, when witnessing life threatening or criminal activity, such as a drunk driver weaving across the center line of a roadway, was required by his employer to immediately take law enforcement action to apprehend the violator. Even when he was not on duty, he was expected to work those irregular hours required to respond to the emergency situation. This sworn duty applies outside of Orange County, Florida. When exercising that duty, as required by the Orange County Sheriff's Policies and Procedures, Deputy Hylton would be entitled to compensation. Deputy Hylton was a resident of the City of Deltona, Florida. Deltona is located in Volusia County near the Seminole/Volusia border. In order to get to work, Deputy Hylton had to drive his own personal vehicle and travel from his home through Seminole County to the Orange County Sheriff's Operation Center and then go on patrol. In the early morning hours of July 22, 1996, Deputy Hylton left his home in Volusia County wearing his uniform, gun, badge, and his identification. He also carried with him a radio capable of communicating directly with Volusia County, the law enforcement agency having primary jurisdiction at the location where he died. At approximately 3:55 a.m., on July 22, 1996, Deputy Hylton was traveling westbound in a residential area on Debarry Avenue, a two-lane paved road near the City of Deltona, in Volusia County, Florida. He observed an oncoming vehicle swerving into the westbound lane. Deputy Hylton immediately took evasive action by applying his brakes and steering his vehicle onto the shoulder of Debarry Avenue. The oncoming vehicle crossed the center line and came across the westbound lane and collided with the deputy's vehicle before he could take any further action. The driver of the other vehicle did not slow down or take any other evasive action prior to the impact. As a result of the collision, a fire erupted and Deputy Hylton died at the scene. At the time of his death, Deputy Hylton appeared to have initiated the process of taking law enforcement action as required by his employer. However, the evidence is not sufficient to prove that Deputy Hylton was killed in-the-line-of-duty as a deputy sheriff while actually performing law enforcement duties during irregular hours as required by his employer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's request for in-line-of-duty retirement benefits of Christopher W. Hylton. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Roger D. Helms, Esquire Troutman, Williams, Irvin, Green & Helms 311 West Fairbanks Avenue Winter Park, Florida 32789 Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement Cedars Executive Center 2639 North Monroe street, Building C Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1550
