HB 723

1	A bill to be entitled
2	An act relating to the Career Service System; amending s.
3	110.227, F.S.; revising provisions relating to layoff
4	procedures to include applicability to correctional
5	probation officers; providing that certain grievances may
6	not be reviewed beyond Step Two; authorizing certain law
7	enforcement officers to seek review of agency penalties
8	before an administrative law judge assigned by the
9	Division of Administrative Hearings; requiring the
10	division to develop a standard form to facilitate
11	applications for review; requiring the employing agency to
12	provide certain employees with a copy of the appropriate
13	application for review; providing for an extension of time
14	in which the hearing must take place for cases in which
15	the due process rights of any party would be adversely
16	affected; providing what may constitute substantial need
17	for the purposes of discovery; providing standards for
18	awards of back pay; providing that awards of back pay must
19	be reduced by certain mitigating interim earnings of the
20	employee; providing that an order of the Public Employees
21	Relations Commission or of the division shall be final
22	agency action; revising provisions relating to judicial
23	review of final orders; amending s. 447.207, F.S.;
24	clarifying what appeals the commission shall hear;
25	providing an effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Section 110.227, Florida Statutes, is amended
30	to read:
31	110.227  Suspensions, dismissals, reductions in pay,
32	demotions, layoffs, transfers, and grievances.--
33	(1)  Any employee who has satisfactorily completed at least
34	a 1-year probationary period in his or her current position may
35	be suspended or dismissed only for cause. Cause shall include,
36	but is not limited to, poor performance, negligence,
37	inefficiency or inability to perform assigned duties,
38	insubordination, violation of the provisions of law or agency
39	rules, conduct unbecoming a public employee, misconduct,
40	habitual drug abuse, or conviction of any crime. The agency head
41	shall ensure that all employees of the agency have reasonable
42	access to the agency's personnel manual.
43	(2)  The department shall establish rules and procedures
44	for the suspension, reduction in pay, transfer, layoff,
45	demotion, and dismissal of employees in the career service.
46	Except with regard to law enforcement officers, correctional
47	officers, or correctional probation officers, firefighters, or
48	professional health care providers, rules regarding layoff
49	procedures shall not include any system whereby a career service
50	employee with greater seniority has the option of selecting a
51	different position not being eliminated, but either vacant or
52	already occupied by an employee of less seniority, and taking
53	that position, commonly referred to as "bumping." For the
54	implementation of layoffs as defined in s. 110.107, the
55	department shall develop rules requiring that consideration be
56	given to comparative merit, demonstrated skills, and the
57	employee's experience. Such rules shall be approved by the
58	Administration Commission prior to their adoption by the
59	department.
60	(3)(a)  With regard to law enforcement officers,
61	correctional officers, or correctional probation officers,
62	firefighters, or professional health care providers, when a
63	layoff becomes necessary, such layoff shall be conducted within
64	the competitive area identified by the agency head and approved
65	by the Department of Management Services. Such competitive area
66	shall be established taking into consideration the similarity of
67	work; the organizational unit, which may be by agency,
68	department, division, bureau, or other organizational unit; and
69	the commuting area for the work affected.
70	(b)  With regard to law enforcement officers, correctional
71	officers, or correctional probation officers, firefighters, or
72	professional health care providers, layoff procedures shall be
73	developed to establish the relative merit and fitness of
74	employees and shall include a formula for uniform application
75	among all employees in the competitive area, taking into
76	consideration the type of appointment, the length of service,
77	and the evaluations of the employee's performance within the
78	last 5 years of employment.
79	(4)  A grievance process shall be available to career
80	service employees who have satisfactorily completed at least a
81	1-year probationary period in their current positions. A
82	grievance is defined as the dissatisfaction that occurs when an
83	employee believes that any condition affecting the employee is
84	unjust, inequitable, or a hindrance to effective operation.
85	Claims of discrimination and sexual harassment or claims related
86	to suspensions, reductions in pay, demotions, and dismissals are
87	not subject to the career service grievance process. The
88	following procedures shall apply to any grievance filed pursuant
89	to this subsection, except that all timeframes may be extended
90	in writing by mutual agreement:
91	(a)  Step One.--The employee may submit a signed, written
92	grievance on a form provided by the agency to his or her
93	supervisor within 7 calendar days following the occurrence of
94	the event giving rise to the grievance. The supervisor must meet
95	with the employee to discuss the grievance within and provide a
96	written response to the employee 5 business days following
97	receipt of the grievance.
98	(b)  Step Two.--If the employee is dissatisfied with the
99	response of his or her supervisor, the employee may submit the
100	written grievance to the agency head or his or her designee
101	within 2 business days following receipt of the supervisor's
102	written response. The agency head or his or her designee must
103	meet with the employee to discuss the grievance within 5
104	business days following receipt of the grievance. The agency
105	head or his or her designee must respond in writing to the
106	employee within 5 business days following the meeting. The
107	written decision of the agency head shall be the final authority
108	for all grievances filed pursuant to this subsection. Such
109	grievances may not be appealed or reviewed beyond Step Two.
110	(5)(a)  A career service employee who has satisfactorily
111	completed at least a 1-year probationary period in his or her
112	current position and who is subject to a suspension, reduction
113	in pay, demotion, or dismissal shall receive written notice of
114	such action at least 10 days prior to the date such action is to
115	be taken. Subsequent to such notice, and prior to the date the
116	action is to be taken, the affected employee shall be given an
117	opportunity to appear before the agency or official taking the
118	action to answer orally and in writing the charges against him
119	or her. The notice to the employee required by this paragraph
120	may be delivered to the employee personally or may be sent by
121	certified mail with return receipt requested. Such actions shall
122	be appealable to the Public Employees Relations Commission as
123	provided in subsection (6). Alternatively, a certified law
124	enforcement officer, correctional officer, or correctional
125	probation officer may seek review by an administrative law judge
126	assigned by the Division of Administrative Hearings. Written
127	notice of any such appeal or application for review shall be
128	filed by the employee with the commission or the division, as
129	appropriate, within 14 calendar days after the date on which the
130	notice of suspension, reduction in pay, demotion, or dismissal
131	is received by the employee. The division shall develop a
132	standard form to facilitate applications for review by certified
133	law enforcement officers, correctional officers, and
134	correctional probation officers. The agency shall provide the
135	employee a copy of the appropriate application for review with
136	each notice required by this section.
137	(b)  In extraordinary situations such as when the retention
138	of a career service employee who has satisfactorily completed at
139	least a 1-year probationary period in his or her current
140	position would result in damage to state property, would be
141	detrimental to the best interest of the state, or would result
142	in injury to the employee, a fellow employee, or some other
143	person, such employee may be suspended or dismissed without 10
144	days' prior notice, provided that written or oral notice of such
145	action, evidence of the reasons therefor, and an opportunity to
146	rebut the charges are furnished to the employee prior to such
147	dismissal or suspension. Such notice may be delivered to the
148	employee personally or may be sent by certified mail with return
149	receipt requested. Agency compliance with the foregoing
150	procedure requiring notice, evidence, and an opportunity for
151	rebuttal must be substantiated. Any employee who is suspended or
152	dismissed pursuant to the provisions of this paragraph may
153	appeal to the Public Employees Relations Commission or apply for
154	review with the Division of Administrative Hearings as provided
155	in subsection (6). Written notice of any such appeal or
156	application for review shall be filed with the commission or the
157	division by the employee within 14 days after the date on which
158	the notice of suspension, reduction in pay, demotion, or
159	dismissal is received by the employee.
160	(6)  The following procedures shall apply to appeals or
161	applications for review filed pursuant to subsection (5) with
162	the Public Employees Relations Commission or the Division of
163	Administrative Hearings, hereinafter referred to as the
164	commission or division:
165	(a)  The commission or division must conduct a hearing
166	within 30 calendar days following the filing of a notice of
167	appeal or an application for review. Unless the commission or
168	division determines the due process rights of any party would be
169	adversely affected, no extension of time for the hearing may
170	exceed 30 calendar days, absent exceptional circumstances, and
171	no extension of time may be granted without the consent of all
172	parties. Discovery may be granted only upon the showing of
173	extraordinary circumstances. A party requesting discovery shall
174	demonstrate a substantial need for the information requested and
175	an inability to obtain relevant information by other means.
176	Failure of the agency to timely share with the employee all of
177	the information it has collected in making and supporting its
178	decisions shall constitute substantial need. Except where
179	inconsistent with the requirements of this subsection, the
180	provisions of s. 447.503(4) and (5) and chapter 120 apply to
181	proceedings held pursuant to this subsection.
182	(b)  A person may represent himself or herself in
183	proceedings before the commission or division or may be
184	represented by legal counsel or by any individual who qualifies
185	as a representative pursuant to rules adopted by the commission
186	or division.
187	(c)  If the commission or division finds that sufficient
188	cause did not exist to justify the penalty imposed by for the
189	agency action, it the commission shall reverse the decision of
190	the agency head and the employee shall be reinstated with or
191	without back pay. If the commission or division finds that
192	sufficient cause existed to justify the penalty imposed by for
193	the agency action, it the commission shall affirm the decision
194	of the agency head. Where sufficient cause exists to justify the
195	penalty, the commission or division may not reduce the penalty
196	imposed by the agency head, except in the case of law
197	enforcement officers, correctional officers, or correctional
198	probation officers, firefighters, and professional health care
199	providers, if the commission or division makes specific written
200	findings of mitigation. Every award of back pay must be reduced
201	by any mitigating interim earnings of the employee that exceed
202	legal expenses in seeking review. The administrative law judge
203	shall be otherwise bound by the common law of the state in
204	fixing the amount of back pay.
205	(d)  The order of the commission or division shall be final
206	agency action. The final A recommended order shall be issued by
207	the hearing officer within 30 days following the hearing.
208	Exceptions to the recommended order shall be filed within 5
209	business days after the recommended order is issued. The final
210	order shall be filed by the commission no later than 30 calendar
211	days after the hearing or after the filing of exceptions or oral
212	arguments if granted.
213	(e)  Final orders issued by the commission or division
214	pursuant to paragraph (d) shall be reviewable as provided in s.
215	120.68 or s. 447.504.
216	(7)  Other than for law enforcement officers, correctional
217	officers, or correctional probation officers, firefighters, and
218	professional health care providers, each suspension, dismissal,
219	demotion, or reduction in pay must be reviewed without
220	consideration of any other case or set of facts.
221	Section 2.  Subsection (8) of section 447.207, Florida
222	Statutes, is amended to read:
223	447.207  Commission; powers and duties.--
224	(8)  The commission or its designated agent shall hear
225	appeals arising out of any suspension, reduction in pay,
226	demotion, or dismissal of any permanent employee in the State
227	Career Service System, other than a law enforcement officer,
228	correctional officer, or correctional probation officer, in the
229	manner provided in s. 110.227.
230	Section 3.  This act shall take effect July 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.