Florida/Georgia Personal Injury & Workers Compensation

...Cagle argues that PERC erred by summarily dismissing her unfair labor practices charge and not providing her with an evidentiary hearing on these charges. For the reasons explained hereafter, we affirm. Ms. Cagle is the wife of a disabled veteran who qualifies for a veterans' preference in hiring pursuant to section 295.07(1)(b), Florida Statutes (2004)....

...r to not renew her contract. As a result, Ms. Cagle was not entitled to an evidentiary hearing on her unfair labor practices claim. For these reasons, we affirm PERC's final order. AFFIRMED. SAWAYA and TORPY, JJ., concur. NOTES [1] In relevant part, section 295.07(1)(b), Florida Statutes (2004), provides: (1) The state and political subdivisions in the state shall give preference in appointment and retention in positions of employment to: ....

PER CURIAM. In this appeal and cross appeal involving the application of Florida’s “veteran’s preference” in hiring statute, Sections 295.07 and 295.085, Florida Statutes (1989), appellant West Coast Regional Water Supply Authority (West Coast) appeals the final order of the Public Employees Relations Commission (PERC) reversing the hearing *893 officer’s recommended order dismissing ap-pellee Harris’s veteran’s preference complaint....

...erred in rejecting the hearing officer’s final recommended order dismissing Harris’s complaint; (2) whether in evaluating the applicants, appellant im-permissibly considered Bryant’s work experience with appellant not disclosed on his resume. Section 295.07, Florida Statutes (1989), provides in pertinent part: (1) The state and its political subdivisions shall give preference in appointment and retention in positions of employment to: (c) A veteran of any war who has served on active duty...

...Section 295.085, Florida Statutes (1989), provides in pertinent part: (1) In all positions in which the appointment or employment of persons is not subject to a written examination, ... 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. 295.07(l)(c) and (d), provided such persons possess the minimum qualifications necessary to the discharge of the duties involved. In the present case, appellant Harris qualifies for a veteran’s preference under Section 295.07(l)(c)....

...Appellant appeals an order of the Public Employees Relations Commission (PERC) *589 dismissing his complaint against appellee. In his complaint, appellant alleged that in failing to hire him, appellee violated his right to a veteran’s preference in employment, for which he qualified under section 295.07, Florida Statutes (1989)....

...That statute provides that a veteran’s employment preference shall be deemed to have expired after an eligible person has been employed by any state or any agency of a political subdivision of the state. The record shows that since accrual of his eligibility under section 295.07, appellant has been so employed....

...lant’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....

...ould 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 We 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...

...s 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....

...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. 295.07(l)(c) and (d), provided such persons possess the minimum qualifications necessary to the discharge of the duties involved....

...ecial consideration at each step of the employment selection process.” Section 295.085(2) provides: (2) The Department of Veterans’ Affairs shall be responsible for promulgating such rules or procedures as to ensure that those persons defined in s. 295.07 are given special consideration in the employing agency’s selection and retention processes. These procedures shall include the award of point values as articulated in s. 295.08 if applicable, or where such point values are not relevant, shall include procedures to ensure those persons defined in s. 295.07 are given special consideration at each step of the employment selection process and are given special consideration in the retention of employees where layoffs are necessitated....

ZEHMER, Chief Judge. Melvin Cohen, an honorably discharged Vietnam-era veteran, applied for a position as a special agent with the Florida Department of Law Enforcement and requested a veteran’s preference pursuant to section 295.07, Florida Statutes....

...ection 295.101, Florida Statutes, because in the years following his discharge from the military, Cohen had been employed by the state of New York. PERC agreed and issued a final order upholding FDLE’s position. Cohen now appeals that final order. Section 295.07 requires that the State of Florida and its political subdivisions accord a preference in hiring or retention to veterans of any war defined in section 1.01(14), Florida Statutes, which includes the Vietnam War....

...§ 2000d and § 2000e (West 1997) ("Title VI" and "Title VII" respectively); 42 U.S.C. §§ 1981 and 1983; the Florida Civil Rights Act of 1992, § 760.11 Florida Statutes ("FCRA"); and the Equal Protection Clause of the United States Constitution, and violates the Florida's Veterans' Preference Act, §§ 295.07, 295.085, Florida Statutes....

...motivated its conduct, summary judgment on the plaintiff's retaliation claim will be granted. [5] 4. Entitlement to Veteran's Preference The plaintiff claims that he was entitled to a preference based on his veteran's status in the lay-off decision. Section 295.07 of the Florida Statutes states that "[t]he state and political subdivisions in the state shall give preference in appointment and retention in positions of employment" to veterans....

...Adis M. Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Dear Secretary Vila: You ask the following question: Does veterans' preference require the employment of a preference eligible person as defined in s. 295.07 , F.S., when an examination is not used and the preference eligible person, although possessing the minimum qualifications necessary for the discharge of the duties involved, is not the best qualified applicant? In sum: Veterans' preference...

...under s. 110.205 (2) and with the exception of comparable positions in the political subdivisions of the state, preference in appointment and employment shall be given by the state and its political subdivisions first to those persons included under s. 295.07 (1) and (2), and second to those persons included under s. 295.07 (3) and (4), provided such persons possess the minimum qualifications necessary to the discharge of the duties involved....

...ment in all career service positions even though an examination is not required. 5 Language was also added to s. 295.085 , F.S., to make the department responsible for "promulgating such rules or procedures as to ensure that those persons defined in s. 295.07 are given special consideration in the employing agency's selection and retention processes ....

...The employing agency, however, is required to document and justify the decision to hire a nonveteran over the preferred veteran, subject to review by the Division of Veterans' Affairs and the Public Employees Relations Commission. Sincerely, Robert A. Butterworth Attorney General (ls) 1 Section 295.07 , F.S., provides that preference in appointment and retention in positions of employment be given to: (1) Those disabled veterans: (a) Who have served on active duty in any branch of the Armed Forces of the United States, have been sep...

...career service system. 3 This office was and remains without authority to create or outline a procedure for awarding veterans' preference in noncompetitive positions within the career service system. 4 See, s. 6, Ch. 87-356, Laws of Florida. 5 See, s. 295.07 , F.S., excepting those positions included under s....

...mpted from the career service under s. 110.205 (2), F.S., and comparable positions in the political subdivisions of the state; and AGO 81-63, concluding that noncompetitive positions within the career service system are clearly within the purview of s. 295.07 , F.S....

HOBSON, Justice. Appellee, at the time he was laid off from his job by appellants, had five years of service with the city of Miami and had attained permanent civil service status. Section 295.07, Florida Statutes 1947, F.S.A., provides that “preference shall be given to” certain veterans in retention in position by all municipalities in Florida; Appellee is a veteran within the purview of said statute, and contends that he was not given the preference mandatorily required thereby. Appellants, on the other hand, assert that appellee was given a preference. Although F.S. § 295.07, F.S.A., was in full force and effect when appellee was laid off, ten other employees in his department were retained, although seven of them were non-veterans....

...ntical, in which case they do place the veteran ahead of other employees with like scores who have no veterans’ status.” It was agreed by the parties that the question before the circuit judge was whether this practice was a compliance with F.S. Section 295.07, F.S.A....

...ure which gave no real preference as contemplated by the statute and the Civil Service Rule. In his petition for writ of mandamus, appellee charged that the lay-off order directed to him was illegal in that a preference, directed mandatorily by F.S. Section 295.07, F.S.A., was not accorded to him, and he prayed for a writ commanding a rescission of the alleged illegal lay-off order and further commanding the payment of lost wages....

...d Eighty cents ($511.80) representing the sum earned by the petitioner during period that petitioner was laid off by the respondents * * * ” The question before this court is whether appellee was shown any preference whatsoever as required by F.S. Section 295.07, F.S.A....

...ffice Box 1437 St. Petersburg, Florida 33731 Dear General Peck: You have asked for my opinion on substantially the following question: Do the provisions of a county home rule charter establishing employment policy for the county take precedence over section 295.07 , Florida Statutes, as amended by section 1, Chapter 89-323, Laws of Florida, relating to veterans' preference in employment, appointment and retention? In sum: A charter county may legislate in the area of veterans' preference in employment, appointment, and retention, to the extent that such ordinances are not inconsistent with sections 295.07 -295.15, Florida Statutes, as amended, Florida's general statutory provisions on veterans' preference. The statute you have cited, section 295.07 , Florida Statutes, as amended, requires that "[t]he state and its political subdivisions shall give preference in appointment and retention in positions of employment to . . . disabled veterans . . . ." 1 (e.s.) The procedures to be followed by the state and its political subdivisions to accomplish this purpose are set forth in sections 295.07 -295.15, Florida Statutes, as amended by Chapter 89-323, Laws of Florida....

...h is to be used in construing the Florida Statutes where the context will permit. Pursuant to section 1.01 (9), Florida Statutes, "political subdivision" is defined to include counties. Thus, the veterans' preference provisions contained in sections 295.07 -295.15, Florida Statutes, as amended by Chapter 89-323, Laws of Florida, apply to counties....

...Statutes that legislation in this area is preempted to the State. 5 While this office must assume the validity of previously adopted county ordinances, 6 it is clear that, to withstand a challenge that such legislation is inconsistent with sections 295.07 -295.15, Florida Statutes, as amended, compliance with such ordinances may not result in a violation of the state's veterans' preference statutes or render compliance with these statutes impossible. Therefore, it is my opinion that charter counties are subject to Florida's veteran's preference statutes, sections 295.07 -295.15, Florida Statutes, but that, to the extent such legislation is not inconsistent with these general statutory provisions, a charter county may legislate in the area of veterans' preference for appointment and retention in employment with the county. Sincerely, Robert A. Butterworth Attorney General RAB/tgh 1 Section 295.07 (1)(a), Fla. Stat., as amended by s. 1, Ch. 89-323, Laws of Florida. And see , s. 295.07 (2), F.S., created by s....

...Helsby Attorney for the Orlando Utilities Commission Barnett Plaza, Suite 740 201 South Orange Avenue Orlando, Florida 32801 Dear Mr. Helsby: You ask on behalf of the Orlando Utilities Commission substantially the following question: Is the Orlando Utilities Commission subject to the provisions of s. 295.07 , F.S., et seq., relating to veterans' preference in employment appointment and retention? In sum, I am of the opinion that: The Orlando Utilities Commission is subject to the provisions of s. 295.07 , F.S., et seq., relating to veterans' preference in employment appointment and retention. Section 295.07 , F.S., provides in part that "[t]he state and its political subdivisions shall give preference in appointment and retention in positions of employment" to veterans and certain others who meet the statutory requirements....

...A similar definition of the term "political subdivision" is contained in the rules of the Department of Administration. 3 Prior to the adoption of Ch. 89-323, Laws of Florida, the department was responsible for promulgating rules to ensure that those persons defined in s. 295.07 , F.S., are given special consideration in the employing agency's selection and retention processes....

...lants or the operation thereof." 9 While the commission exercises substantial independence from the city with respect to the powers granted to it under the special act, the commission is not beyond the control of the Legislature. The Legislature, in s. 295.07 , F.S., has required the state and its political subdivisions to grant veterans and certain other persons preference in appointment and retention in positions of employment as provided therein....

...As a part of the City of Orlando, the commission clearly appears to fall within the definition of political subdivision which expressly includes municipalities. Accordingly, I am of the opinion that the Orlando Utilities Commission is subject to the provisions of s. 295.07 , F.S., et seq., relating to veterans' preference in employment appointment and retention. Sincerely, Robert A. Butterworth Attorney General RAB/tjw 1 See, s. 295.07 (1), F.S., as amended by Ch....

...Other provisions in Ch. 295 , F.S., provide for veterans' preference in positions where an examination is not utilized, and for reinstatement or reemployment. See, ss. 295.085 and 295.09 , F.S., as amended by Ch. 89-323, Laws of Florida, respectively. 2 See, s. 295.07 (2)(b), F.S., as amended by Ch....

other reason, subsequent to his initial hire." Section 295.07, F.S., provides in pertinent part that "[t]he

...However, on its own initiative, PERC ordered the City to pay attorney’s fees and costs to Landolfi “due to the manner in which the City conducted its hiring process.” PERC reasoned that “[t]he City’s failure to provide Landolfi with an interview, or any other form of special consideration, is a clear violation of [section 295.07(2), Florida Statutes, and Florida Administrative Code Rule 55A-7.011(2)].” This timely appeal and cross-appeal followed....

...Analysis The award of attorney’s fees and costs in the final order was based on section 295.14(1), Florida Statutes (2010), which provides: When the Public Employees Relations Commission, after a hearing on notice conducted according to rules adopted by the commission, determines that a violation of s. 295.07, s. 295.08, s. 295.085, or s. 295.09(l)(a) or (b) has occurred and sustains the veteran seeking redress, the commission shall order the offending agency, employee, or officer of the state to comply with the provisions of s. 295.07, s. 295.08, s. 295.085, or s. 295.09(l)(a) or (b); and, in the event of a violation of s. 295.07, s....

...The 1987 amendments expanded the scope of the first clause to include the statutes applicable to the initial hiring decision, but retained the scope of the second clause. See Ch. 87-356, § 9, at 2212-13, Laws of Fla. (breaking section 295.14(1) into two clauses and adding sections 295.07, 295.08, and 295.085(1) to the first clause, but not the second clause)....

...lief. See ch. 98-33, § 7, at 248, Laws of Fla. Consequently, after the 1998 amendments, PERC had discretion to award monetary relief, including attorney’s fees and costs, for violations of any of the statutes listed in the first clause, including section 295.07....

...Because an award of fees and costs under this statute is discretionary, we review the award for an abuse of discretion. See Pipping v. Dep’t of Corr., 700 So.2d 721 (Fla. 1st DCA 1997). However, we review de novo PERC’s determination that the City violated section 295.07(2) because that is an issue of law; and in doing so, we give deference to PERC so long as its determination is not clearly erroneous....

...t clause, nor is there any basis for PERC to award monetary relief under the discretionary provisions of the second clause. Thus, resolution of the issue raised by the City on appeal boils down to whether PERC erred in finding that the City violated section 295.07(2) by failing to give Landolfi special consideration in the interview process even though the City ultimately hired a more qualified applicant. Section 295.07(2) does not require covered employers to do anything; the statute simply authorizes DVA to adopt rules that, among other things, “include procedures to ensure that veterans are given special consideration at each step of the employme...

...erence “does not require the employment of a preferred applicant over a nonpreferred applicant who is the most qualified applicant for the position.” Fla. Admin. Code R. 55A-7.01K2). *873 The City argues that PERC’s conclusion that it violated section 295.07(2) by failing to grant Landolfi an interview even though it ultimately hired a more qualified applicant is clearly erroneous because it is contrary to this court’s decision in Harris v....

...The PERC hearing officer found that the veteran, Harris, was qualified for the position based on information that was not apparent from his resume; that the non-veteran applicant hired by the county was more qualified than Harris for the position; and that the county violated sections 295.07 and 295.085 by not providing a preference to Harris at each step of the employment selection process....

...he county for which he was qualified. Id. In its final order, PERC rejected the hearing officer’s conclusion that the county violated the veterans’ preference statute and expressly concluded that the county “did not violate the provisions of §§ 295.07 and 295.085, Florida Statutes (1987).” Id....

...at 23-24 (emphasis added). This court affirmed PERC’s final order. See Harris, 568 So.2d at 475 . In doing so, the court expressly rejected the exact contention raised in this case: that, even though the employer hired a more qualified applicant, it violated sections 295.07 and 295.085 by failing to give the veteran a preference at each stage of the hiring process....

...ed non-veteran hired was more qualified than veteran); Ruiz v. Metro. Dade Cnty., 17 FPER ¶ 22512 (1991) (finding hiring of more qualified non-veteran lawful); Zumwalt v. Palm Beach Cnty. Cmty. Coll, 16 FPER ¶ 21510 (1990) (finding no violation of section 295.07 or 295.085 when employer hired more qualified non-veteran applicant over less qualified veteran)....

...PERC’s final order in this case is consistent with these authorities insofar as it dismissed Landolfi’s complaint based on the hearing officer’s finding that the City hired a more qualified applicant. However, the final order conflicts with these authorities in concluding that the City “violated” section 295.07(2) by failing to give Landolfi special consideration, such as an interview, during the hiring process. Indeed, this aspect of the final order directly conflicts with Harris because, in that case, both this court and PERC expressly concluded that the employer did not violate sections 295.07 or 295.085 by failing to give the veteran preference during the hiring process since the employer established that it hired a more qualified non-veteran....

...if the employer establishes that it hired a more qualified non-veteran, it needs to clarify that intent. Conclusion For the reasons stated above, PERC erred in concluding that the City’s failure to provide Landolfi an interview was a violation of section 295.07 and, as a result, PERC abused its discretion in awarding attorney’s fees and costs to Landolfi under section 295.14(1)....