Senate Bill sb0636

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    Florida Senate - 2005                                   SB 636

    By Senator Argenziano





    3-323-05

  1                      A bill to be entitled

  2         An act relating to the Career Service System;

  3         amending s. 110.227, F.S.; revising

  4         requirements for disciplining an employee;

  5         providing for appeals of agency actions

  6         imposing penalties on employees to be reviewed

  7         by administrative law judges; revising review

  8         procedures; providing standards for awards of

  9         back pay; amending s. 447.207, F.S., relating

10         to powers and duties of the Public Employees

11         Relations Commission, to conform; providing an

12         effective date.

13  

14  Be It Enacted by the Legislature of the State of Florida:

15  

16         Section 1.  Subsections (1), (5), (6), and (7) of

17  section 110.227, Florida Statutes, are amended to read:

18         110.227  Suspensions, dismissals, reductions in pay,

19  demotions, layoffs, transfers, and grievances.--

20         (1)  Any employee who has satisfactorily completed at

21  least a 1-year probationary period in his or her current

22  position may be suspended or dismissed only for just cause. In

23  appropriate circumstances cause shall include, but is not

24  limited to, poor performance, negligence, inefficiency or

25  inability to perform assigned duties, insubordination,

26  violation of the provisions of law or agency rules, conduct

27  unbecoming a public employee, misconduct, habitual drug abuse,

28  or conviction of any crime. The agency head shall ensure that

29  all employees of the agency have reasonable access to the

30  agency's personnel manual.

31  

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    Florida Senate - 2005                                   SB 636
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 1         (5)(a)  A career service employee who has

 2  satisfactorily completed at least a 1-year probationary period

 3  in his or her current position and who is subject to a

 4  suspension, reduction in pay, demotion, or dismissal shall

 5  receive written notice of such action at least 10 days prior

 6  to the date such action is to be taken. Subsequent to such

 7  notice, and prior to the date the action is to be taken, the

 8  affected employee shall be given an opportunity to appear

 9  before the agency or official taking the action to answer

10  orally and in writing the charges against him or her. The

11  notice to the employee required by this paragraph may be

12  delivered to the employee personally or may be sent by

13  certified mail with return receipt requested. Such actions

14  shall be reviewable by an administrative law judge assigned by

15  the Division of Administrative Hearings appealable to the

16  Public Employees Relations Commission as provided in

17  subsection (6). Written notice of any application for review

18  such appeal shall be filed by the employee with the division

19  commission within 14 calendar days after the date on which the

20  notice of suspension, reduction in pay, demotion, or dismissal

21  is received by the employee. The division shall develop a

22  standard form to facilitate applications for review by

23  employees. The agency shall provide the employee a copy of the

24  form for filing an application for review with each notice

25  required by this section.

26         (b)  In extraordinary situations such as when the

27  retention of a career service employee who has satisfactorily

28  completed at least a 1-year probationary period in his or her

29  current position would result in damage to state property,

30  would be detrimental to the best interest of the state, or

31  would result in injury to the employee, a fellow employee, or

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    Florida Senate - 2005                                   SB 636
    3-323-05




 1  some other person, such employee may be suspended or dismissed

 2  without 10 days' prior notice, provided that written or oral

 3  notice of such action, evidence of the reasons therefor, and

 4  an opportunity to rebut the charges are furnished to the

 5  employee prior to such dismissal or suspension. Such notice

 6  may be delivered to the employee personally or may be sent by

 7  certified mail with return receipt requested. Agency

 8  compliance with the foregoing procedure requiring notice,

 9  evidence, and an opportunity for rebuttal must be

10  substantiated. Any employee who is suspended or dismissed

11  pursuant to the provisions of this paragraph may apply for

12  review appeal to the Public Employees Relations Commission as

13  provided in subsection (6). Written notice of application for

14  review any such appeal shall be filed with the division

15  commission by the employee within 14 days after the date on

16  which the notice of suspension, reduction in pay, demotion, or

17  dismissal is received by the employee.

18         (6)  The following procedures shall apply to

19  applications for review appeals filed pursuant to subsection

20  (5) with the Division of Administrative Hearings Public

21  Employees Relations Commission, hereinafter referred to as the

22  division commission:

23         (a)  The division commission must conduct a hearing

24  within 30 calendar days following the filing of an application

25  for review a notice of appeal. Unless the administrative law

26  judge determines that the due process rights of any party

27  would be adversely affected, an No extension of time for the

28  hearing may not exceed 30 calendar days, absent exceptional

29  circumstances, and an no extension of time may not be granted

30  without the consent of all parties. Discovery may be granted

31  only upon the showing of extraordinary circumstances. A party

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 1  requesting discovery shall demonstrate a substantial need for

 2  the information requested and an inability to obtain relevant

 3  information by other means. Failure of the agency to timely

 4  share with the employee all of the information it has

 5  collected in making and supporting its decisions constitutes

 6  substantial need. Except where inconsistent with the

 7  requirements of this subsection, the provisions of s.

 8  447.503(4) and (5) and chapter 120 applies apply to

 9  proceedings held pursuant to this subsection.

10         (b)  A person may represent himself or herself in

11  proceedings before the division commission or may be

12  represented by legal counsel or by any individual who

13  qualifies as a representative pursuant to rules adopted by the

14  division commission.

15         (c)  If the administrative law judge commission finds

16  that sufficient cause did not exist to justify for the

17  discipline imposed by the agency action, the administrative

18  law judge commission shall reverse the decision of the agency

19  head and the employee shall be reinstated with or without back

20  pay. If the administrative law judge commission finds that

21  sufficient cause existed to justify for the agency action, the

22  administrative law judge commission shall affirm the decision

23  of the agency head. When sufficient cause exists to justify

24  the penalty, the administrative law judge commission may not

25  reduce the penalty imposed by the agency head, except in the

26  case of law enforcement or correctional officers,

27  firefighters, and professional health care providers, if the

28  administrative law judge commission makes specific written

29  findings of mitigation. Every award of back pay must be

30  reduced by any mitigating interim earnings of the employee

31  which exceed legal expenses in seeking review. The

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 1  administrative law judge shall otherwise be bound by the

 2  common law of this state in fixing the amount of back pay.

 3         (d)  The administrative law judge's order is final

 4  agency action. The final order shall be issued A recommended

 5  order shall be issued by the hearing officer within 30 days

 6  following the hearing. Exceptions to the recommended order

 7  shall be filed within 5 business days after the recommended

 8  order is issued. The final order shall be filed by the

 9  commission no later than 30 calendar days after the hearing or

10  after the filing of exceptions or oral arguments if granted.

11         (e)  Final orders issued by the administrative law

12  judge under commission pursuant to paragraph (d) shall be

13  reviewable as provided in s. 120.68 s. 447.504.

14         (7)  Other than for law enforcement or correctional

15  officers, firefighters, and professional health care

16  providers, each suspension, dismissal, demotion, or reduction

17  in pay must be reviewed without consideration of any other

18  case or set of facts unless the administrative law judge

19  determines that due process of law requires otherwise.

20         Section 2.  Subsections (8), (9), (10), and (11) of

21  section 447.207, Florida Statutes, are amended to read:

22         447.207  Commission; powers and duties.--

23         (8)  The commission or its designated agent shall hear

24  appeals arising out of any suspension, reduction in pay,

25  demotion, or dismissal of any permanent employee in the State

26  Career Service System in the manner provided in s. 110.227.

27         (8)(9)  Pursuant to s. 447.208, the commission or its

28  designated agent shall hear appeals, and enter such orders as

29  it deems appropriate, arising out of:

30  

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    Florida Senate - 2005                                   SB 636
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 1         (a)  Section 110.124, relating to termination or

 2  transfer of State Career Service System employees aged 65 or

 3  older.

 4         (b)  Section 112.044(4), relating to age

 5  discrimination.

 6         (c)  Section 295.11, relating to reasons for not

 7  employing a preferred veteran applicant.

 8         (9)(10)  Appeals to the commission pursuant to

 9  subsection (8) or subsection (9) shall be the exclusive

10  administrative review of such actions, notwithstanding the

11  provisions of chapter 120. However, nothing in this subsection

12  shall affect an employee's rights pursuant to s. 447.401 or s.

13  447.503.

14         (10)(11)  Decisions issued by the commission pursuant

15  to subsection (8) or subsection (9) shall be final agency

16  action which shall be reviewable pursuant to s. 447.504.

17         Section 3.  This act shall take effect July 1, 2005.

18  

19            *****************************************

20                          SENATE SUMMARY

21    Transfers the authority to review actions of employers
      which impose discipline on career service employees from
22    the Public Employees Relations Commission to
      administrative law judges. Provides that suspension or
23    dismissal may be for just cause only. Provides that an
      agency's failure to share information with the employee
24    constitutes substantial need for purposes of compelling
      discovery. Provides certain constraints on awards of back
25    pay.

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