Senate Bill sb0956

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    Florida Senate - 2006                                   SB 956

    By Senator Argenziano





    3-535-06

  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 certified law enforcement

  7         officers and correctional probation officers to

  8         be reviewed by administrative law judges;

  9         revising review procedures; providing standards

10         for awards of back pay; amending s. 447.207,

11         F.S., relating to powers and duties of the

12         Public Employees Relations Commission, to

13         conform; providing an effective date.

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

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17         Section 1.  Subsections (1), (5), and (6) of section

18  110.227, Florida Statutes, are amended to read:

19         110.227  Suspensions, dismissals, reductions in pay,

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

21         (1)  Any employee who has satisfactorily completed at

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

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

24  appropriate circumstances cause shall include, but is not

25  limited to, poor performance, negligence, inefficiency or

26  inability to perform assigned duties, insubordination,

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

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

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

30  all employees of the agency have reasonable access to the

31  agency's personnel manual.

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    Florida Senate - 2006                                   SB 956
    3-535-06




 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 appealable to the Public Employees Relations

15  Commission as provided in subsection (6). Alternatively, a

16  certified law enforcement officer or correctional probation

17  officer may seek review by an administrative law judge

18  assigned by the Division of Administrative Hearings. Written

19  notice of any application for review such appeal shall be

20  filed by the employee with the commission or the Division of

21  Administrative Hearings, as appropriate, within 14 calendar

22  days after the date on which the notice of suspension,

23  reduction in pay, demotion, or dismissal is received by the

24  employee. The division shall develop a standard form to

25  facilitate applications for review by certified law

26  enforcement officers and correctional probation officers. The

27  agency shall provide the employee a copy of the appropriate

28  application with each notice required by this section.

29         (b)  In extraordinary situations such as when the

30  retention of a career service employee who has satisfactorily

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

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    Florida Senate - 2006                                   SB 956
    3-535-06




 1  current position would result in damage to state property,

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

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

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

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

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

 7  an opportunity to rebut the charges are furnished to the

 8  employee prior to such dismissal or suspension. Such notice

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

10  certified mail with return receipt requested. Agency

11  compliance with the foregoing procedure requiring notice,

12  evidence, and an opportunity for rebuttal must be

13  substantiated. Any employee who is suspended or dismissed

14  pursuant to the provisions of this paragraph may apply for

15  review appeal to the Public Employees Relations Commission as

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

17  review any such appeal shall be filed with the commission or

18  the division by the employee within 14 days after the date on

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

20  dismissal is received by the employee.

21         (6)  The following procedures shall apply to

22  applications for review appeals filed pursuant to subsection

23  (5) with the Public Employees Relations Commission,

24  hereinafter referred to as the commission, or with the

25  Division of Administrative Hearings, hereinafter referred to

26  as the division:

27         (a)  The commission or division must conduct a hearing

28  within 30 calendar days following the filing of an application

29  for review a notice of appeal. Unless the administrative

30  tribunal determines that the due-process rights of any party

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

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    Florida Senate - 2006                                   SB 956
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 1  hearing may not exceed 30 calendar days, absent exceptional

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

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

 4  only upon the showing of extraordinary circumstances. A party

 5  requesting discovery shall demonstrate a substantial need for

 6  the information requested and an inability to obtain relevant

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

 8  share with the employee all of the information it has

 9  collected in making and supporting its decisions constitutes

10  substantial need. Except where inconsistent with the

11  requirements of this subsection, the provisions of s.

12  447.503(4) and (5) and chapter 120 applies apply to

13  proceedings held pursuant to this subsection.

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

15  proceedings before the commission or division or may be

16  represented by legal counsel or by any individual who

17  qualifies as a representative pursuant to rules adopted by the

18  tribunal commission.

19         (c)  If the administrative tribunal commission finds

20  that sufficient cause did not exist to justify for the

21  discipline imposed by the agency action, it the commission

22  shall reverse the decision of the agency head, and the

23  employee shall be reinstated with or without back pay. If the

24  administrative tribunal commission finds that sufficient cause

25  existed to justify for the agency action, it the commission

26  shall affirm the decision of the agency head. If sufficient

27  cause exists to justify the penalty, the administrative

28  tribunal commission may not reduce the penalty imposed by the

29  agency head, except in the case of law enforcement or

30  correctional officers, firefighters, and professional health

31  care providers, if the administrative law judge commission

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    Florida Senate - 2006                                   SB 956
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 1  makes specific written findings of mitigation. Every award of

 2  back pay must be reduced by any mitigating interim earnings of

 3  the employee which exceed legal expenses in seeking review.

 4  The administrative law judge shall be otherwise bound by the

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

 6         (d)  The administrative tribunal's order is final

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

 8  by the hearing officer within 30 days following the hearing.

 9  Exceptions to the recommended order shall be filed within 5

10  business days after the recommended order is issued. The final

11  order shall be filed by the commission no later than 30

12  calendar days after the hearing or after the filing of

13  exceptions or oral arguments if granted.

14         (e)  Final orders issued by an administrative tribunal

15  the commission pursuant to paragraph (d) shall be reviewable

16  as provided in s. 447.504 or s. 120.68.

17         Section 2.  Subsection (8) of section 447.207, Florida

18  Statutes, is amended to read:

19         447.207  Commission; powers and duties.--

20         (8)  The commission or its designated agent shall, in

21  appropriate cases, hear appeals arising out of any suspension,

22  reduction in pay, demotion, or dismissal of any permanent

23  employee in the State Career Service System in the manner

24  provided in s. 110.227.

25         Section 3.  This act shall take effect July 1, 2006.

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    Florida Senate - 2006                                   SB 956
    3-535-06




 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that suspension or dismissal of a public
      employee may be for just cause only. Transfers the
 4    authority to review actions of employers which impose
      discipline on certified law enforcement officer and
 5    correctional officers from the Public Employees Relations
      Commission to administrative law judges. Provides that an
 6    agency's failure to share information with the employee
      constitutes "substantial need" for purposes of compelling
 7    discovery. Provides certain constraints on awards of back
      pay.
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