Harris v. State, Public Employees Relations Commission

568 So. 2d 475, 1990 Fla. App. LEXIS 7587, 1990 WL 146894
CourtDistrict Court of Appeal of Florida
DecidedOctober 4, 1990
DocketNo. 90-524
StatusPublished
Cited by3 cases

This text of 568 So. 2d 475 (Harris v. State, Public Employees Relations Commission) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. State, Public Employees Relations Commission, 568 So. 2d 475, 1990 Fla. App. LEXIS 7587, 1990 WL 146894 (Fla. Ct. App. 1990).

Opinion

NIMMONS, Judge.

Appellant, William J. Harris, Jr., appeals, pursuant to the provisions of Section 447.-504, Florida Statutes, from a final order of the Public Employees Relations Commission (PERC) denying appellant’s veteran’s preference appeal which he filed pursuant to Section 447.207(9), Florida Statutes. Appellant alleged that Sarasota County (County), in failing to employ him for a position for which he was qualified, violated his veteran’s preference rights under Chapter 295, Florida Statutes. We affirm.

In January 1989, appellant applied for a job with Sarasota County advertised as [476]*476“manager of the County’s Information Center” within the job classification of “systems analyst.” The position required high school graduation with three years programming experience and one year system analysis work. Additionally, an in-depth knowledge of standard personal computer software (LOTUS, dBase, WordPer-fect and Novell) was required. Desirable qualifications were experience in developing corporate personal computer strategies and directing in-house PC training programs.

Appellant testified that because he had only one day to submit his resume after he saw the advertisement, he simply took the first resume he came to rather than attempting to tailor it to the specifications listed. He claimed to have other resumes that emphasize experience suitable for positions requiring software rather than hardware applications, but, because of the press of time, did not submit them.

Darryl Goebel, Manager of the County’s Management Information Services, testified that the resumes of approximately 80 applicants were received. He said that, .based upon the information submitted by appellant, he determined that appellant was engineering and hardware oriented, rather than user support oriented. Appellant’s resume did not indicate to Goebel that appellant had “supported training, developed classes, developed expertise in certain products,” all experiences the County was looking for. Nor did it list any experience with two of the key software programs designated in the advertisement.

Goebel testified that he reviewed the resumes in depth and then separated them into three categories — A, B and C. The “A” category resumes were deemed well qualified, the “B” category resumes were deemed qualified; and the “C” category resumes exhibited none of the background qualities desired. Goebel repeatedly reviewed each of the resumes since there were other positions available for which the “B” or “C” list candidates may have been qualified. Harris’ resume was consistently placed in the “C” stack because Goebel determined appellant to be engineering and hardware systems oriented with technical experience in equipment not compatible with the system used by the County. The County was seeking applicants whose background emphasized training and user support of personal computers utilizing particular types of software. In short, Goebel determined that appellant was not minimally qualified for the position and did not process his application further.

In his recommended order, the hearing officer, based upon evidence of appellant’s qualifications over and above that which was revealed by appellant’s resume, determined that appellant was qualified for the position. Although finding that the individual hired for the position, Steven Vlahon, was more qualified than appellant, the hearing officer concluded that the County violated Sections 295.07 and 295.085, Florida Statutes, by not providing a preference to appellant at each step of the hiring process. The hearing officer recommended that appellant be given an opportunity to fill any open position for which he was qualified at, or subsequent to, the time he submitted his application, regardless of whether the position is currently vacant or filled.

PERC adopted the hearing officer’s findings of fact as its own. However, PERC concluded that it was error for the hearing officer to charge the County with knowledge, at the time it made the decision to eliminate appellant from the interview pool, of appellant’s qualifications over and above that which was revealed by appellant’s resume. PERC therefore held that the County did not violate Chapter 295 by eliminating appellant from further consideration at the resume review stage of the hiring process.

PERC also found that even if the appellant were legitimately deemed, at the resume review stage, to possess the minimum qualifications for the position, the appellant would not be entitled to preference over and above the more qualified applicant. PERC stated that in order to prevail, Harris needed to demonstrate that he was as qualified or more qualified than the employee ultimately hired.

[477]*477We would note that Section 295.07, Florida Statutes, establishes four classes of veterans or spouses of veterans who shall be given preference in appointment and retention in positions of employment. Appellant falls under section 295.07(l)(c) which applies to:

(c) A veteran of any war who has served on active duty for 181 consecutive days or more, or who has served 180 consecutive days or more since January 31, 1955, and who was discharged or separated therefrom with an honorable discharge from the Armed Forces of the United States of America if any part of such active duty was performed during the wartime era. However, active duty for training shall not be allowable.

Appellant’s tour of duty with the Army in Vietnam lasted approximately four years, and his qualification under this section is undisputed.

The provisions of Section 295.08 apply to positions for which competitive examinations are given. Examination scores are augmented five or ten points depending upon which classification applies under Section 295.07. The statute also requires that certain veterans receive an absolute hiring preference:

... The names of persons eligible for preference shall be entered on an appropriate register or list in accordance with their respective augumented ratings. However, ... the names of all persons qualified to receive a 10 point preference whose service-connected disabilities have been rated by the Veteran’s Administration or the Department of Defense to be 30 percent or more shall be placed at the top of the appropriate register or employment list, in accordance with their respective augumented ratings.

The statute gives an absolute preference for veterans to be placed at the top of the employment list only if the candidate has a 30 percent or more disability rating. There are no provisions suggesting that veterans receiving a 5 or 10 point exam score augmentation be hired over more qualified non veterans.

The appellant falls within the provisions of Section 295.085, dealing with positions where examinations are not utilized. Viewing subsection (1) of that statute in light of the above discussion, it is evident that in situations where no competitive exam is given, a preference for veterans is to be given, but not an absolute preference. Section 295.085(1) provides:

(1) In all positions in which the appointment or employment of persons is not subject to a written examination, with the exception of those positions which are exempt pursuant to s. 295.07(2), preference in appointment and employment shall be given by the state and its political subdivisions first to those persons included under s. 295.07(l)(a) and (b), and second to those persons included under s.

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Bluebook (online)
568 So. 2d 475, 1990 Fla. App. LEXIS 7587, 1990 WL 146894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-state-public-employees-relations-commission-fladistctapp-1990.