Department of Commerce v. Public Employees Relations Commission

662 So. 2d 1365, 1995 Fla. App. LEXIS 12476, 20 Fla. L. Weekly Fed. D 2616
District Court of Appeal of Florida·Decided November 27, 1995·No. No. 94-3860·Published

Opinion

PER CURIAM.

Appellant, the Department of Commerce (Department), hired appellee, Arthur G. Ken-nerly, as a communications officer on September 20, 1976, and Kennerly remained an employee of the Department until dismissed on May 31, 1994. For several years prior to his dismissal, Kennerly worked in the Department’s International Trade and Development Division, and during the time period pertinent to this appeal, Kennerly worked as a development representative II (trade representative) in the Trades Section. Following his dismissal, Kennerly filed an appeal with the Public Employees Relations Commission (PERC) and a formal administrative hearing took place on June 30, 1994. The PERC-designated hearing officer, Jerry Cheatham, issued a recommended order finding that the Department had just cause to discipline Kennerly for below-standard work performance. As found by the hearing officer, “Kennerly did not produce any significant results in the area of his work he had been told was the most important.” The hearing officer also considered the statutory mitigation criteria and recommended mitigation of the termination to a 90-day suspension with no award of attorney’s fees or costs. In recommending mitigation, the hearing officer noted that “Kennerly’s long and good record strongly supports mitigation of his dismissal.”

In its final order, PERC substituted its analysis of the dispositive legal issues and conclusions of law for that of the hearing officer. PERC ordered that Kennerly be reinstated and provided with back pay and benefits as well as attorney’s fees and costs. Because PERC failed to identify sound policy reasons supported by the record in rejecting the hearing officer’s analysis, we reverse and remand.

The performance standards listed on the Employee Performance Appraisal forms used to evaluate Kennerly’s job performance consist of seven criteria including criterion 1, focused on by Kennerly’s supervisors in this case: “Participate in two major overseas trade events which promote Florida’s manufactured goods. The minimum number of participants to be set at 12 catalogue entries. A minimum of at least 6 actual company full participation may reduce the number of cata-logue represented.” * From 1988 until 1992, however, Kennerly spent most of his time on duties other than those described in criterion 1.

In particular, Kennerly coordinated trade/export seminars for Florida businesses, [1367] which included explaining to businesses how to export products. He also responded to inquiries and visitors to the office and worked on multi-state catalogue shows. Work on catalogue shows, which take place in Europe, involves assembling printed materials from businesses and mailing them to the Department’s European offices for inclusion in a show; the Department does not send its Florida employees to catalogue shows.

Other trade representatives with the same job description performed different duties, however. These representatives had assigned targeted industries and organized participation by Florida businesses in foreign trade shows or fairs, as described in criterion 1. A trade show or fair is located in only one city and is sponsored by organizations other than the Department; generally, each show is targeted at one industry or a related group of industries. At least one Department employee works a trade show to assist businesses in making presentations and to substitute for businesses that cannot attend but have sent catalogues.

Kennerly preferred not to travel or work on trade shows. With the knowledge of former Division Director Slattery, Kennerly instead focused on other duties such as multi-state catalogue shows and seminars. When Thomas J. Roesch became Kennedy's immediate supervisor in May 1990, Roesch noticed that Kennerly was not doing trade shows. Roesch asked Slattery about this, and Slat-tery responded that Kennerly was doing other work. Specifically, according to Roesch, Slattery said: “Don’t worry about it. Arthur is not going to do trade shows. Just work around him. Don’t make a big issue out of it.”

In June 1992, the Department hired Susan Idtensohn as the new Division Director. Id-tensohn had substantial private sector experience and took a “proactive” approach to stimulate exports. Early on, she specifically told each trade representative, including Kennerly, to emphasize trade shows and trade fairs. Idtensohn made a management decision that trade shows were more effective stimulants to export sales than catalogue shows. Further, Idtensohn intended to measure success by the number of trade shows, the number of businesses participating, and the amount of business “written” within six months after the show. The entire office knew soon after Idtensohn arrived that she intended to make targeted industries an office priority. By October 1992, each trade representative, including Kennerly, had been assigned a targeted industry or industries and, on January 11, 1993, Idtensohn informed all trade representatives that they needed to identify three trade shows or fairs from the trade calendar of events for which they would recruit Florida business participation.

At the hearing, witnesses indicated that four to six months constituted sufficient lead time for a trade representative to organize participation in a trade show, and the hearing officer determined that “a reasonable lead time for trade show development is around six months.” The hearing officer further determined that by direct communication, performance evaluations, and performance improvement plans, Kennerly was notified that he needed to participate in trade shows to achieve the goals of his position description. Kennerly was also aware of the Department’s target level of participation for any trade show. Specifically, the hearing officer found that “a preponderance of the evidence proves that Kennerly was personally aware that his specific job duties had changed, and that the relative importance of the various components of his job had changed, although what he was doing was still within the scope of his generic position description.” The hearing officer rejected, as unsupported by the evidence, Kennedy’s argument that he was not properly informed that he could be fired for failing to recruit for trade shows. The hearing officer thus concluded that the Department had just cause to discipline Kennerly. After analyzing the statutory mitigation criteria, however, the hearing officer recommended mitigation of the imposed penalty of dismissal to a ninety-day suspension without pay.

[1368] In the final order, PERC determined as a matter of policy that a performance standard or the weight given thereto may not be substantially changed verbally:

The Commission agrees with the Agency that it has the right to determine the weight of any particular performance standard. In fact we have encouraged agencies to do so. We have also stated that an agency may establish a standard whose relative importance is so great that failure to achieve that standard alone, can result in an employee’s overall failure to meet performance standards. As a matter of policy, however, we reject the Agency’s suggestion that a published performance standard or the weight given to a performance standard can be substantially changed verbally.

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Department of Commerce v. Public Employees Relations Commission, 662 So. 2d 1365, 1995 Fla. App. LEXIS 12476, 20 Fla. L. Weekly Fed. D 2616 (Fla. Ct. App. 1995).

662 So. 2d 1365 (Department of Commerce v. Public Employees Relations Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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