The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, contends that Respondent, Department of Environmental Protection (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost two years to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. From June 1965 until April 1994, Petitioner worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fishery biologist," "fishery technician, and "equal employment opportunity counselor." Petitioner then presumably retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record. After leaving federal service, Petitioner says he filed around 120 job applications with various state agencies, including the Department. When a position becomes vacant and is ready to be filled, all state agencies provide a short summary of information regarding that position to the Department of Management Services (DMS) so that potential job applicants are aware of the vacancy. The information provided by the agencies constitutes "the bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and an agency contact person. That information is then placed by DMS into a computer program (COPES), which generates a document known as a vacancy announcement. The vacancy announcements can be accessed by other state agencies who have a COPES terminal. While employed by the DOR, which apparently had such access, Petitioner relied upon the vacancy announcements generated by COPES for filing various applications with the Department. During the relevant time period, and even continuing until today, whenever a vacant position occurs, the Department prepares a Job Opportunity Announcement (JOA) which lists, among other things, the position's minimum qualifications; class title; description of job duties; required entry-level knowledge, skills, and abilities; a contact person in the Department who can provide further information; and the deadline for submitting an application. It is fair to say that this document contains far more information regarding the position than the vacancy announcement generated by DMS. The Department also prepares a Selection Criteria Form for each vacancy which enumerates a number of essential and preferred selection criteria which the applicant must satisfy in order to be considered for employment. In addition, the form contains the name, address, and telephone number of a Department employee who can be contacted for further information on the position. Like the JOAs, this document is available to an applicant upon request, and the Department's general practice is to fax or mail this form to the applicant within 24 hours after a request is made. Although each job application form advises the applicant to "[l]ist the knowledge, skills, and abilities that you will bring to the job," and to refer to the JOA or listed contact person to determine those specific requirements, Petitioner did not have the JOA or the Selection Criteria Form when he prepared and filed his applications, nor did he speak with the contact person. After a position has been filled, the Department prepares a Recruitment Report, which identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the hiring person's justification for choosing that individual. During the initial screening of all applications, a Department personnel specialist reviews the applications to determine if an applicant meets all essential and preferred selection criteria listed on the Selection Criteria Form. If an applicant fails to meet any of these criteria, the applicant is automatically cut from the list. The applicant is also cut from the list if the application is filed after the deadline or is incomplete. In determining whether an applicant meets all selection criteria, the personnel specialist will attempt to "glean" from the applicant's work history whether he or she satisfies a particular criterion. If the subject matter is highly technical, the specialist will seek technical advice from other Department personnel to make that determination. It goes without saying that the applicant who has the JOA and the Selection Criteria Form can better tailor his or her work experience on the application to the specifics of the job being sought. For those applicants who do not meet all selection criteria, who have filed their application after the filing deadline, or who have filed an incomplete application, the Department sends out a standard form letter advising them that they have not been selected for the position. Petitioner received such a letter after each application was filed. There is no requirement that the rejection letter contain a detailed explanation of the reasons why a specific candidate was not selected. Although Petitioner applied for a number of positions with the Department since 1994, only four applications are in issue here. They are positions 11390; 20340; 10084; and 10301. The first three positions were classified as an Environmental Specialist II, while the last position was classified as an Environmental Specialist III. Positions 20340 and 10301 were processed by the Department's Tallahassee office while positions 11390 and 10084 were processed by the Department's Pensacola office. Petitioner submitted virtually identical applications for each of these positions. As to position 10301, an Environmental Specialist III, 76 applicants applied for the job, and 10 were ultimately given an interview. Although Petitioner met the minimum qualifications listed in the vacancy announcement, he was "cut" from the list during the initial screening process because the position was a "groundwater position," and he had "little experience in water supply plans and development and large scale water management projects." Thus, he could not meet all essential and preferred criteria. On the other hand, the successful applicant, a white male (age unknown), met all essential and preferred criteria; he also had 16 years experience in water management with specific experience "on such issues as water supply planning, establishing minimum flows and levels, establishing pollutant load reduction goals and total maximum daily loads, and watershed management." The evidence shows that a better qualified person was hired for this position, and Petitioner did not meet all essential or preferred criteria. Position 20340, an Environmental Specialist II, required that the successful applicant have knowledge of the Everglades ecosystem. Ninety-eight persons applied for the job, and only six were invited for an interview. Petitioner met all minimum qualifications, but like many other candidates, he failed to meet all of the essential qualifications. In addition, "[o]ther applicants provided information indicating better qualifications with regard to essential and preferred selection criteria." The successful applicant, a Department employee, was a white male (age unknown) who "[f]ully [met] all essential selection criteria" and "nearly fully [met] all preferred selection criteria." Further, the successful applicant had "much relevant experience with monitoring, sample analysis and data interpretation relevant to/taken from the Everglades." In this instance, the most qualified person was hired, and Petitioner again failed to meet all essential qualifications for the position. As to position 10084, an Environmental Specialist II, 50 persons submitted complete and timely applications, but only 14 were interviewed. In addition, 20 other applications were filed by persons who were either unqualified or filed their applications after the deadline; they were automatically cut from any further review. Because Petitioner's application was filed after the December 23, 1996, deadline, his application was not considered. Therefore, on this basis alone, Petitioner's claim must necessarily fail. As it turned out, a white male (age unknown) who met all essential and preferred selection criteria was selected for the position; that individual was found to exceed the education, experience, and knowledge requirements of the job. The evidence shows that the most qualified person was selected for the job. Finally, as to position 11390, also an Environmental Specialist II, 42 persons applied for the position, but only 8 were given an interview. Petitioner submitted no information on his application which indicated that he had knowledge of the Department's Pollution Control Program, or that he was versed in ecosystem management, both essential selection criteria for the job. Ultimately, the successful candidate was a white female (under age 40), who had "hands on" experience in ecosystem management and grant writing and displayed outstanding public speaking skills. She also led the State "in the indicator studies." While Petitioner argues that based on his education and work experience, he "matches the criteria better than the selected applicant," the more persuasive evidence supports a finding that the position was filled by the best qualified person and that Petitioner did not meet all preferred and essential selection criteria for the position. Notwithstanding the foregoing, Petitioner contended that without the Selection Criteria Form, there was no way he could accurately tailor his work experience to the specific criteria required for the job. However, the form was readily available to any applicant by simply calling the number given on the vacancy announcement and requesting that it be faxed or mailed the same day. Petitioner also contended that he had no time to request a JOA or Selection Criteria Form since applications generally were due within a matter of days. This time constraint, however, uniformly applied to all candidates. Further, the evidence shows that if an applicant telephoned the Department contact person before the deadline had run and advised that he wished to file an application but could not file it before the deadline, a short extension would normally be granted. Petitioner next contended that in several instances the Department violated a DMS rule by using a vacancy to promote an existing employee. As to this contention, Petitioner misconstrued the manner in which the rule is applied, and the evidence shows that the Department fully complied with all DMS personnel rules when it filled the questioned positions. Petitioner further contended that the investigation conducted by the Florida Commission on Human Relations (Commission) was flawed, and that the reason given by the Commission investigator for recommending a determination of no cause was not true. He also criticized the length of time it took to complete the investigation, saying this deprived him of an opportunity to seek redress in state courts. Since Petitioner was given a de novo hearing to challenge the Commission's preliminary determination, the investigator's conclusions are irrelevant. At the same time, the Department should not be faulted for the Commission's delay in processing the complaint. Finally, Petitioner contended that his educational background surpassed that of the successful applicants, and that his rejection is a clear indication of discrimination on the part of the Department. The positions in question, however, are highly technical in nature; besides the educational requirements, a candidate must also satisfy essential and preferred selection criteria that fit the duties of the job. In most cases, these can only be met through direct work experience in the specified areas, which the evidence shows that Petitioner lacked. On the other hand, all of the successful applicants satisfied these essential and preferred selection criteria. There was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 29th day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 29th day of March, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
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.
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
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.
Findings Of Fact By letter dated December 9, 1988, the Department advised Petitioner of its determination that Petitioner had abandoned her position and resigned from Career Service. The Department served the letter on the Petitioner by certified mail at her address. Pursuant to that service, Petitioner requested an administrative hearing by letter dated December 21, 1988. Petitioner also included her address in her letter dated December 21, 1988. The Petitioner's request for a formal hearing was send to the Division of Administrative Hearings by letter dated February 13, 1989. An Order was issued on February 28 1989, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Order. This Order was sent by United States mail to the Petitioner at the address she provided in her December letter. The Petitioner did not respond to the Order. The Department did respond. A Notice of Hearing was issued on March 23, 1989. The formal hearing was set for 9:30 a.m., April 6, 1989, in Jacksonville, Florida. The Notice of Hearing was send by United States mail to the Petitioner at the address given by Petitioner in her December letter. The Petitioner did not appear at the place set for she formal hearing. After waiting fifteen minutes for the Petitioner to appear, the hearing was commenced. The Department was present at the hearing. Since there were no issues of material fact in dispute, the Department elected to make an ore tenus motion to dismiss this case. The Department was informed that a recommended Order would be issued recommending dismissal of this case. The Petitioner did not request a continuance of the formal hearing or notify the undersigned ha she would not be able to appear at the formal hearing.
Recommendation Based upon the foregoing Findings of Fact and he Conclusions of Law, it is Recommended that the Secretary of the Department of Administration enter a Final Order dismissing the Petitioner'S request for hearing in this case. DONE and ENTERED this 23rd day of May, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1989. COPIES FURNISHED: Vernon Whittier, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Catherine S. Gray 865 South Land Avenue Apartment #422 Jacksonville, Florida 32205 Faye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues raised by the petition filed in this proceeding, as amended, is whether the Respondent's Memorandum No. 82-73 is a rule and an invalid exercise of delegated legislative authority. To reach those issues, it must be determined whether Petitioner has standing to bring this action.
Findings Of Fact Petitioner is an employee of Broward County, Florida. Broward County is an employer in the Florida Retirement System. As a result of his employment with Broward County, Petitioner is a member of the Florida Retirement System (FRS). The Division of Retirement is the administrative agency for the FRS. The FRS is a trust that is qualified under Section 401(a) of the Internal Revenue Code as a defined benefit plan. The FRS is noncontributory for individual members. Contributions are made by participating FRS employers. Respondent's Bureau of Enrollment and Contributions receives reports of contributions and service credit from the various participating FRS employers. The Bureau of Enrollment and Contributions reviews the information reported to determine if the reporting employer is paying the correct amount of contributions and reporting the correct service credit for the individual members of the FRS. The information provided to the Bureau of Enrollment and Contributions does not include the day-to-day employment responsibilities of the individual members of the FRS. The leave status of an individual member of the FRS is irrelevant to the actuarial soundness of the FRS Trust Fund if the employing agency reports the individual member as one of its employees and the employing agency pays its contributions into the FRS Trust Fund for the individual. On February 18, 1981, Respondent issued Memorandum No. 81-40, on the subject of "Membership in the Florida Retirement System for Employees on Leaves of Absence", which provides, in pertinent part, as follows: Recently, a question arose as to the Florida Retirement System (FRS) status of employees who are granted leaves of absence to work with the employers who are not members of the Florida Retirement System. The specific inquiry was whether an FRS employer may continue to report such an employee on its payroll with the current employer reimbursing the FRS employer for all expenses including retirement contributions. The answer to this question may be found in Section 121.021(10) and (11), Florida Statutes. As stated in Section 121.021(11), Florida Statutes, "officer or employee" for retirement purposes is defined as "... any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group." Section 121.021(10) defines "employer" as, "... any agency, branch, department, institution, university, institution of higher education, or board of the state, or any county agency, branch department, board, district school board, or special district of the state, or any city of the state which participates in the system for the benefit of its employees." Unless the employer with whom the employee is working during the leave of absence from the FRS employer satisfies the definition of "employer" in Section 121.021(10), Florida Statutes, and unless the employee is performing work in a regularly established position as specified in Section 121.021(11), Florida Statutes, it would be improper (not lawful) for the FRS employer to continue to report the employee on the monthly payroll submitted to the Division of Retirement. Nothwithstanding the foregoing, such employee may still receive retirement credit for the period of the leave of absence. Under the provisions of Section 121.121, Florida Statutes, ("Future Service to Include Leaves of Absence") and FRS Rule 22B-2.06 ("Credit for Leaves of Absence after November 30, 1970"), the employee may purchase retirement credit for the period of the leave of absence, provided the conditions stated in the retirement law are satisfied. Also, nothing in the retirement law would prohibit or in any way prevent the non-FRS employer with whom the employee is working while on leave of absence from his job with the FRS employer from compensating or reimbursing the employee for the cost of purchasing as creditable service the period of the leave of absence upon his or her return to covered employment with the FRS employer. . . . On October 13, 1982, Memorandum No. 82-73, addressed to all Florida District School Boards, was issued by Respondent as an "Addendum to Memorandum No. 81-40 Regarding Florida Retirement System (FRS) Membership for Employees During Leaves-of-Absences". Memorandum No. 82-73 contains the alleged unpromulgated rule1 that is being challenged by Petitioner, and provides, in pertinent part, as follows: Memorandum No. 81-40 dated February 18, 1981 was issued in response to an inquiry as to whether an FRS employer may continue to report an employee for retirement who is granted a leave-of-absence to work for a non-FRS employer. In that case, the FRS employer was being reimbursed for the employee's salary expenses by the non-FRS employer. Our advice was that it would be improper to continue reporting such person for retirement credit since the employee was not performing work in a regularly established position. However, we did point out that such leave-of-absence could be claimed later as creditable service by the employee under certain conditions. Upon reflection, it appears that our earlier advice was not entirely correct. Therefore, the following new instructions are issued to supersede those contained in Memorandum No. 81-40: Anytime an employee of an FRS agency is granted a leave-or-absence and is continued in pay status by the FRS agency and is reported by that agency for wages on the IRS W-2 Form, the employee shall continue to be reported for retirement credit while on the leave-of- absence with pay, even if the employee's salary expenses are reimbursed to the FRS agency by the non- FRS entity. See FRS Rule 22B-2.06(2), F.A.C. . . . Rule 22B-2.06(2), Florida Administrative Code, now numbered Rule 60S- 2.006(2), Florida Administrative Code, provides, in pertinent part, as follows: (2) If a member (an individual member of FRS) is granted a leave of absence with full pay at the rate he was being paid prior to the leave of absence, and the compensation received during such period is paid in accordance with 60S-1.004(a) or (b), the member shall not be considered on leave of absence for retirement purposes and the contributions required by Section (sic) 60S-3.003 shall continue to be made and he shall continue to receive full retirement credit for the period he is on leave of absence pay. Rule 60S-2.006(2), Florida Administrative Code, is not being challenged in this proceeding. Petitioner is a vested member of the FRS with over 17 years of creditable service. Petitioner paid to the FRS the sum of $2,746.57, on February 27, 1990, in order to purchase credit for four years of military service. Petitioner failed to establish that the policy reflected by Memorandum 82-73 will affect any recognizable interest that he might have. There will be no actuarial impact on the FRS and no diminution in value of the FRS as a result of this policy. Although Petitioner asserts that the policy may result in a disqualification of the FRS plan by the Internal Revenue Service, he presented no evidence, other than his speculation, in support of that assertion. The policy statement contained in Memorandum 82-73 was addressed to all Florida District School Boards and it is not specifically incorporated in the FRS Handbook that is made available to members of the FRS. From those facts, Petitioner concludes that the FRS breached a fiduciary duty it had to its members by failing to notify all members of the policy. Even if Petitioner's conclusion is accepted, Petitioner failed to establish that this alleged breach of a fiduciary duty affected any recognizable interest that he might have.
