vs. ) CASE NO. 77-2094RX
DIVISION OF PERSONNEL ) DEPARTMENT OF ADMINISTRATION ) and DEPARTMENT OF OFFENDER ) REHABILITATION, STATE OF FLORIDA )
Respondent. )
A hearing was held in the above captioned matter after due notice, at Tallahassee, Florida, on February 3, 1978, before the undersigned Hearing Officer.
For Respondent: Earl H. Archer, III, Esquire
Administrative determination of validity of the following letters as alleged rule: letter Department of Offender Rehabilitation to State Personnel Director, August 31, 1977, and letter State Personnel Director to Department of Offender Rehabilitation, dated September 8, 1977.
Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner
and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3)
The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon)
By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated:
The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of
the position as reflected on the official Position Description, a copy of which is attached.
The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions.
However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with
the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes.
Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean)
After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
CONCLUSIONS OF LAW
Petitioner seeks an administrative determination that an administrative rule of the Respondents herein constitutes an invalid exercise of delegated legislative authority in that it has not been adopted in accordance with requirements of Chapter 120, Florida Statutes. Although the petition also alleged the purported rule contradicts and is offensive to Chanter 110, Florida Statutes and Chapters 22A-7 and 10, Florida Administrative Code, Petitioner abandoned this ground for challenge at a preliminary motion hearing.
The Petitioner asserts that "by letters of August 31, 1977 and September 8, 1977, the Respondents promulgated a rule which designated the Position of Planner and Evaluator II -- DOR, Class Code 5291, Position Number 07974, for 'selective competition,' and extinguished Petitioner's right to that position. The rule (attached as Composite Exhibit "A") adversely affects Petitioner's substantial interest."
Section 120.56(2), Florida Statutes, provides that a petition seeking an administrative determination of a rule shall state with particularity "facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule."
The petition alleges and the facts support Petitioner's claim that he has been substantially and adversely affected by the fact that Position Number 07974 was approved for selective competition. Petitioner had the greatest number of retention points within his competitive area for being placed in the only position which was not abolished as a result of legislative action had not selective competition for the position been authorized by the State Personnel Director. Petitioner currently is administratively appealing the layoff under
pertinent regulations and alleges that the use of selective competition for the remaining Planner and Evaluator II position was for the sole purpose of cutting off his rights to such position under normal procedures. Accordingly, it is determined that his substantial interests were affected by the action taken by the Respondents pursuant to the above-mentioned letters.
It is undisputed that the letters in question have not been adopted as a rule pursuant to the procedures specified in Chapter 120, Florida Statutes. Accordingly, the only question for determination is whether or not the documents in question, in fact, constitute a "rule" under the Administrative Procedure Act. In this regard, subsection 120.52(14) defines the term "rule" pertinently as follows:
(14) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any
requirement or solicits any information not specifically required by statutes or by an existing rule . . .
In his petition, Petitioner predicated the existence of a rule on the two letters which designated the position for selective competition. It is noteworthy in this regard that the letters which were attached to the petition did not include the enclosure to Secretary Wainright's letter, i.e., the Position Description. In fact, no mention is made of the Position Description in the petition. In his posthearing brief, however, Petitioner contends that the collective effect of the two letters and Position Description state "minimum qualifications" having the effect of a rule and cites Department of Administration v Harvey, Case No. EE-131 (Fla. 1st DCA 1977) December 27, 1977, as authority for that proposition. In sum, Petitioner asserts that the three documents constitute a rule because (1) they modify normal state layoff procedures by permitting selective competition, and (2) they establish minimum qualifications for the position in question. However, in the latter regard, Petitioner explains that the documents have the "effect of amending the minimum qualifications already provided by the Position Description or Class Specification."
Respondents, on the other hand, maintain that the documents are not agency "statements of general applicability" in that they concern only one job position, but simply constitute an agency decision in the form of an "Order" which does not have the effect of a rule as provided in Section 120.52(9), Florida Statutes.
Section 110.022, Florida Statutes, sets forth the powers and duties of the Department of Administration in personnel matters in part as follows:
To adopt and amend the rules and regulations necessary to implement the purposes of Chapter 110, which rules and regulations shall provide for:
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(f) The establishment and maintenance of minimum qualifications for each class of positions . . .
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(h) The . . . layoff of employees in the career service when it becomes necessary to abolish positions . . .
In implementation of the above, Respondent DOA, promulgated the layoff rule set forth in Rule 22A-7.11, which provides pertinently as follows:
(3) The competitive area within which layoffs will be effected shall be identified by the agency head, subject to approval by the Secretary of the Department of
Administration . . .
Selective competition within the competitive area may be authorized by the State Personnel Director based upon specific qualifications deemed necessary for a position if the duties and responsibilities requiring such qualifications are clearly reflected in the position description for the position.
In determining whether the documentation issued by the Respondents to implement selective competition under the above-mentioned rule constitutes a rule itself requires a consideration of prior judicial declarations concerning the subject matter. In McDonald v Department of Banking and Finance, 346 So.2d
569 at 577, 581 (Fla. 1st DCA 1977), the Court stated:
We recently held that every agency action is "a recognizable rule or an order" under the APA or is incipiently a rule or order." State ex rel. Dept. of Gen. Serv. v. Willis, 344 So.2d 580, 584 (Fla. 1st DCA 1977). Except when an agency acts by formal rulemaking (Section 120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section 120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section 120.57.
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. . . the Section 120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law . . .
The McDonald decision also recognized that there are quantitative limits to the matters that can effectively be promulgated as rules, noting in Footnote 8 that the APA requires Department of State efforts to reduce the number and bulk of rules. In this connection, Respondent DOR has over eight thousand authorized positions in its Department and every position has a Position Description covering its duties and responsibilities
It is unquestionable that the joint action of the Respondents produced an agency decision by the DOA that implemented Rule 22A-7.11(3). Further, it is clear that this action ultimately resulted in creating rights for one state
employee and adversely affecting others, including the Petitioner. Although the action applied to all four employees competing for the remaining position, it cannot be considered a statement of "general applicability" as envisaged under the statutory definition of a "rule." It is simply a discretionary decision on the part of the State Personnel Director as authorized under an existing rule, and applies on a onetime basis to only one designated position in the Department. It is similar in nature to any personnel decision made by administrative officials affecting the status or tenure of employees based on particular circumstances. If accomplished within the framework of applicable law and regulation, such decisions eventually become final. If not, they are subject to challenge and formal proceedings under Section 120.57 by an affected party having a substantial interest in the matter.
Petitioner's claim that the correspondence in question had the effect of amending the minimum qualifications already provided by the Position Description or Class Specification is considered to be without merit. He does not attack the official Position Description itself but points to the "special and unique qualifications" for the position as described in the DOR letter to the State Personnel Director. It is true that the Position Description does not set forth particular qualifications for a position other than by inference from the duties and responsibilities described therein. However, the evidence adduced at the hearing established that approval of selective competition involved a determination that the duties and responsibilities of the position as shown in the Position Description required the special qualifications noted in DOR letter. If such qualifications could not be identified in that manner, selective competition would not have been authorized, as reflected in Rule 22A- 7.11(3). Although Petitioner's reference to Harvey, supra, warrants consideration, it is not believed that that case controls the instant situation. There, the Court was concerned with minimum training and experience requirements set forth in class specifications and determined that the Division of Personnel bad used its statement of minimum requirements as a rule of decision requiring adoption pursuant to Section 120.54. However, Harvey did not purport to address the isolated question of special qualifications for a particular position within a class. Considering the scope of the action complained of, and its limited and specific application, it is not believed that the legislature intended that such a decision as is encountered here requires adoption under the statutory rulemaking procedures.
In view of the foregoing, it is concluded that the challenged documents are not rules requiring adoption under Chapter 120, Florida Statutes, and that therefore the petition herein is not meritorious under Section 120.56, Florida Statutes.
DONE and ORDERED this 23rd day of February, 1978, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Earl H. Archer, II, Esquire 1311 Winewood Boulevard
Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304
Ms. Liz Cloud Department of State
