Service First appeals begin stacking up
Employees union says many workers fear repercussions

By Bill Cotterell
DEMOCRAT POLITICAL EDITOR
Wed,, Aug. 13, 2003

Printable version of article
The union representing about 100,000 state employees began filing scores of legal appeals Tuesday for workers who lost Career Service protection when Gov. Jeb Bush's Service First initiatives took effect.

"It's a big mess," said Jeanette Wynn, a retired Florida State Hospital worker who heads the American Federation of State, County and Municipal Employees. "Service First took away people's rights and the state just arbitrarily started designating them for Selected Exempt."

Mike Ewen, Tallahassee Democrat AFSCME's Jeanette Wynn, attorney Jerry Traynham, center, and Special Counsel Alma Gonzalez discuss the reclassification of state employees under Gov. Jeb Bush's Service First initiatives. They hope to appeal many of these job changes.

AFSCME spokesman Doug Martin said about 150 appeals had been sent to agencies — mostly in the Department of Children & Families, Department of Education and Department of Juvenile Justice by Tuesday afternoon. Wynn and two attorneys were working their way through foot-high stacks of paperwork generated by the union's Web site and toll-free phone line, which AFSCME has used to rally opposition to Service First.

The 1st District Court of Appeal ruled July 14 that the state acted improperly in reclassifying about 16,300 jobs from Career Service to Selected Exempt, the mid-management level in which employees get free health insurance and added vacation time - but can be fired without cause. Each agency's personnel offices then sent certified letters to affected employees, as well as to some 319 who have been fired since Service First was implemented two years ago, informing them of their right to appeal the switch within 21 days.

But Wynn and Jerry Traynham, an AFSCME attorney who argued the court case, said some personnel agencies are dragging their feet on appeals and that many employees are afraid of losing their jobs by fighting the boss over reclassification.

Department of Management Services Secretary Bill Simon said there have been no intimidation tactics or threats of reprisal, and that agencies will fairly examine any appeals filed by ex-Career Service workers who feel their jobs do not meet the "supervisory, managerial and confidential" criteria for movement to Selected Exempt. Late last month, while AFSCME was just starting to drumming up appeals, DMS estimated that only 39 requests for review had been made by individual employees.

"If there are less than 200 appeals, that's less than 2 percent of the total who moved," Simon said. "Anytime 98 percent of the people affected are satisfied, we're happy with the results."

Simon also noted that the state did not appeal the court ruling and said agencies want to sort out who belongs in Selected Exempt and who should be returned to Career Service. Since the three-judge panel ruled last month, the Bush administration has predicted that most affected employees like the benefits of Selected Exempt and won't seek a hearing that might return them to Career Service.

"If it's found that they were moved in error, then they'll be moved back," Simon said. "We want to move on and put this behind us."

Employees do not have to appeal through AFSCME, which has aggressively offered legal assistance and sent out e-mails and leaflets advising employees how to request a hearing on their own. The 21-day period varies, depending on when each employee signed for his or her certified letter, so it will not be known until late this month how many employees request review of their movement to Selected Exempt.

Traynham said he and AFSCME staff counsel Alma Gonzalez had to tell very few employees that their transfer to Selected Exempt was proper. In almost all appeals, he said, the formerly Career Service employees were "lead workers" with seniority and leadership responsibility - but no authority to hire, promote or discipline any of their co-workers.

"We have people who were reclassified because they were 'production supervisors,'" Wynn said. "That could be a cook at Florida State Hospital."

Traynham said some departments were rejecting paperwork because of obscure technicalities, such as failure to cite the precise administrative rule under which an employee challenges reclassification. In such cases, he said, employees were told they had only 10 days to file a proper request for review - and that about half of that time would be consumed by mailing forms back and forth.

"They'll say, 'We're rejecting you because you didn't file under the rule,' so you've got four or five days to find a lawyer and react," he said. "That's not fair."

Wynn said AFSCME will provide legal assistance to employees whose appeals get tossed on a technicality. She said the union also will file suit for any Selected Exempt workers who suddenly get fired after requesting review of their removal from Career Service.

"There would have been a lot more appeals but people are just afraid," she said. "People are fearful that if they appeal, and they're in SES, they can get fired."
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Contact political editor Bill Cotterell at (850) 222-6729 or bcotterell@tallahassee.com.

Service First goes to court
Bane of collective bargaining,
or tool for work-force efficiency?

By Bill Cotterell
DEMOCRAT SENIOR WRITER
(Tallahassee Democrat, May. 14, 2003)

Gov. Jeb Bush unconstitutionally snatched away the right of state employees to negotiate work rules, the union representing most state workers told an appeals court Tuesday.

But an attorney hired by the state to defend Service First said the Legislature legally changed hiring, promotion, salary and disciplinary rules so that managers can use a smaller, highly computerized work force more efficiently.

A three-judge panel of the First District Court of Appeal gave no indication when it will rule on the appeal brought by the American Federation of State, County and Municipal Employees. AFSCME, which represents about 100,000 state office workers and laborers, lost a legal challenge before Leon County Circuit Judge Kevin Davey last year.

"What Service First undeniably did was to unilaterally change, quite substantially, terms of employment without collective bargaining," AFSCME attorney Jerry Traynham told the court.

The Florida Constitution assures public employees the right to collectively bargain, but not to strike. Traynham said Bush's sweeping 2001 changes in state personnel rules, which moved about 16,300 jobs out of Career Service and into Selected Exempt Service, made negotiations meaningless because "terms and conditions of employment" are stacked in favor of the state.

When negotiators for AFSCME, the Police Benevolent Association, the Florida Nurses Association or the Federation of Physicians and Dentists hits an impasse with the state, a "special master" hears both sides and makes recommendations to legislative budget writers. Lawmakers usually adopt the state's "last best offer" in the state budget, sometimes throwing unions a few concessions.

But Traynham said Service First changed rules on hiring, layoffs, reassignment and many other nonbudget issues of state employment. Service First also eliminated "bumping" rights, giving managers the ability to lay off employees without regard to seniority.

Edmund McKenna, a Tampa attorney representing the state, said "there's not one word in Service First that precludes bargaining." He said the unions can still appeal to the Public Employee Relations Commission if the state does not bargain "in good faith" or engages in unfair labor practices.

"They don't like Service First," McKenna told the court.

Judges James Wolf and Edward Barfield questioned McKenna about how PERC, an executive agency, could strike down employment actions taken under Service First - in effect, striking down a statute. McKenna said PERC findings can be appealed to the District Court of Appeal.

Wolf asked how layoffs, disciplinary actions or bumping could be addressed in budget proviso language. McKenna said those actions have a budget impact.

"There is nothing in a collective bargaining agreement that does not relate to money," he said.

AFSCME state president Jeanette Wynn said the questions indicated the court might overturn Davey's ruling.

"The Constitution says that we have the right to bargain," she said after the hourlong hearing. "Basically, the law excluded us from being able to bargain."

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Contact senior writer Bill Cotterell at (850) 222-6729 or Bill Cotterell.