DEPARTMENT OF LAW ENFORCEMENT, APPELLANT,
v.
MAGGIE ALLEN AND THE CAREER SERVICE COMMISSION, APPELLEES

Fla. 1st DCA | 1981-06-09
No. WW-439
McCORD, J., concurs., BOOTH, J., dissents without written opinion.
400 So. 2d 777 Florida District Court of Appeal, First District (1981) Caution
Cited by 8 cases

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Holding

The court held that the Career Service Commission did not abuse its discretion in finding the Department of Law Enforcement failed to follow its own rules regarding employee reevaluation timelines.


Headnotes

[1] An agency must comply with its own rules of procedure when implementing disciplinary action against an employee.

[2] An agency's internal rules of conduct, including those shortening statutory time limits for reevaluation, are binding on the agency itself.

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Facts & Procedural History

An employee received an unsatisfactory job evaluation and was subsequently discharged. The employee appealed, arguing the Department violated its own …

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Department of Law Enforcement appeals an order of the Career Service Commission reversing the Department’s discharge of an employee and ordering her reinstatement with back pay.

We affirm the order.

On September 18, 1979, appellee, an employee of the Department of Law Enforcement, received a conditional job performance evaluation.

On November 9, 1979, appellee received an unsatisfactory job performance evaluation for the time period between September 18 and October 19, 1979. She received written notice that the Department intended to discharge her for specific violations of the Department’s Rules of Conduct on December 11,1979, and requested and received a pretermination conference where she was represented by counsel on January 8,1980. She was subsequently discharged from employment on January 23, 1980.

Appellee timely appealed her discharge to the Career Service Commission and a hearing was held on April 8, 1980.

At the hearing, appellee moved to dismiss the action and sought reinstatement, alleging, among other things, that the Department violated Rule 200.12 of its own Rules of Conduct by failing to reevaluate her job performance within thirty days following her receipt of the unsatisfactory performance evaluation. The Commission granted the motion to dismiss and ordered appellee’s reinstatement with back pay because of the impermissible delay by the Department between appellee’s receipt of the unsatisfactory performance evaluation on November 9 for the period prior to October 19, 1979, and her receipt of the written notification of the Department’s intent to dismiss her.

We conclude there is competent, substantial evidence to support the Commission’s determination that the Department did not comply with its own rules of procedure for implementing disciplinary action against appellee.

Pursuant to Rule 22A-9.03(6), Florida Administrative Code (1979), if an employee receives a conditional or unsatisfactory evaluation and is retained by the agency, the employee’s performance must be reevaluated at least every sixty days thereafter until performance has improved and is at least satisfactory or until six months have elapsed without the employee receiving a satisfactory evaluation.

However, the Department, in Rule 200.12(5)(f), DLE Rules of Conduct, shortened the maximum sixty day time limit for job performance reevaluations of retained employees contained in Rule 22A-9.03(6) to a maximum of thirty days. Following appellee’s conditional performance evaluation for the period prior to September 18, 1979, she was reevaluated under the Department’s rule for the period between September 18 and October 19, 1979, although she did not receive the unsatisfactory evaluation until November 9, 1979, and it was not until December 11, 1979, that she received written notice that the Department intended to discharge her because of poor work performance.

Under the above rules, the Department was required to have either reevaluated appellee within thirty days of the October 19, 1979, unsatisfactory evaluation if she was to be retained, or to have discharged her within thirty days. Instead, DLE waited until December 11, 1979, fifty-three days after the October 19 evaluation before they provided written notice to appellee of her dismissal without reevaluating her. Even assuming the operative date under the rule is the date the employee personally receives the unsatisfactory evaluation, thirty-three days elapsed between the time appellee received the unsatisfactory evaluation on November 9 and the date when the Department informed her of their intent to discharge her on December 11 without conducting a further reevaluation as mandated by their own rule.

The Department contends that the delay in taking action against appellee was not unreasonable in light of the amount of time necessary for proposed employee disciplinary action to travel through the Department’s chain of command. We are well aware of the amount of time required for bureaucratic decision-making.

However, we also note that it was the Department’s decision, for whatever reason, to shorten the sixty-day time limit for reevaluation of retained employees who have received an unsatisfactory job evaluation contained in Rule 22A — 9.03(6) to thirty days. If an employee is to be expected to honor and adhere to an agency’s internal rules of conduct, we think it is also reasonable to expect the agency to honor and adhere to its own rules of conduct.

We conclude that the Department has failed to show an abuse of discretion by the Career Service Commission in finding that the Department did not follow its own rules in implementing disciplinary action against appellee.

Accordingly, the appealed order is affirmed.

AFFIRMED.

McCORD, J., concurs.

BOOTH, J., dissents without written opinion.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …urt of Appeal approved and upheld reinstatement as a proper remedy for a state employee who was terminated by the Department of Law Enforcement without the agency following the correct procedure of evaluation. Department of Law Enforcement v. Allen, 400 So. 2d 777 (Fla. 1st DCA 1981). I do not believe reinstatement violates Florida’s public policy in the context of this case. Accordingly, I would affirm the lower court’s order which confirmed the arbitrator’s award. . Reinstatement has been recognized as an…
  • …o the Career Service Commission. Thus, the unauthorized signature did not effectively deprive the employee of any of the notice requirements found in Rule 22A-042. Appellees rely upon this court’s decision in Department of Law Enforcement v. Allen, 400 So. 2d 777 (Fla. 1st DCA 1981), in which we upheld similar action on the part of the Commission because the Department had failed to follow its own rule. However, the rule violation in Allen consisted of the Department’s attempt to dismiss an employee while to…
  • Dick A. LEE v. Fla. Dep't of Hwy. Safety & Motor Vehicles, 438 So. 2d 405 (Fla. 4th DCA 1983)
    …stated that “the Agency must comply with applicable rules of procedure when it dismisses a permanent employee of the State Career Service System, and if it does not, the employee is entitled to reinstatement. Department of Law Enforcement v. Allen, 400 So. 2d 777 (Fla. 1st DCA 1981).” The Commission further enumerated four specific ways in which Trooper Lee’s dismissal contravened procedures required by the Career Service System. It then concluded that the dismissal was without just cause. As indicated, Sec…

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