LINDA J. HART, )
vs. ) CASE NO. 78-664RX
Respondent. )
A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on April 25, 1978, before the undersigned Hearing Officer. This case was consolidated for purposes of hearing with the case of William Blynn and Teresa Crawford v. Division of Retirement, Department of Administration, Case No. 78-500R.
For Petitioner: Carl J. Leib, Jr., Esquire
For Respondent: E. Douglas Spangler, Jr.
Administrative determination of validity of Rule 22B- 1.05(3)(b), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Petitioner is currently employed as a Criminalist I with the Metro Dade County Department of Public Safety since July 29, 1975. On March 31, 1977, she filed an application with Respondent Division of Retirement for special risk membership with the Florida Retirement System. Her employer certified that her position was hazardous and met the statutory and regulatory requirements for special-risk membership. She was advised by a letter from Robert L. Kennedy, Jr., State Retirement Director, on August 12, 1977, that her job description did not support the statement on her application that her primary duties and responsibilities in the position required her to regularly bear a firearm or other weapon. His letter stated:
Accordingly, 1 am not able to conclude that your continued performance of these duties beyond age fifty-five, normal retirement age for special-risk members, would jeopardize your physical and mental well-being.
He further stated that since Petitioner did not meet the criteria established by Rule 22B-1.05 C. 2. nor satisfy any of the additional criteria enumerated in paragraphs a., b., c., or d. of the rule, the application was denied, reserving, however, for Petitioner to submit a revised job description that more accurately reflected her primary duties and responsibilities. It was also stated that if no such material was received within twenty days from the day of receipt of the letter, the application would be denied based on the grounds already presented. By a further letter of August 12, 1977, Respondent sent a copy of the letter of denial to the Deputy Clerk, Metropolitan Dade County, Miami, Florida. On December 19, 1977, Kennedy wrote Petitioner that since she had not submitted additional information within twenty days, that the original decision of denial was then final and her application disapproved effective July 29, 1975.
Petitioner wrote Kennedy on January 18, 1978, acknowledging receiving the December 19th letter but stating that she had never received the letter of August 12, 1977. She further indicated her intent to appeal the decision. Petitioner thereafter challenged the decision in a separate currant administrative proceeding and also filed the present rule challenge. (Exhibit 2)
A description of Petitioner's duties was attached to her application and shows that she is employed in the Crime Laboratory of the Public Safety Department and that 70 percent of the time, her duties consist of examination, testing, and identification of physical evidence at the crime scene and in the laboratory. A lesser amount of time is spent in examination of wounds sustained by crime victims, responding to crime scenes when search warrants are executed to identify contraband or instrumentalities of crimes, and presenting testimony in court as an expert witness. She is a regular deputy sheriff who has met minimum standards certification, and is responsible for the prevention and detection of crime. (Exhibit 2)
Applications for special-risk membership are referred to staff personnel in the Division of Retirement who prepare a recommendation of approval or disapproval for the Director of Retirement. After further review by the division legal staff, the decision is made by the director based on the criteria of the division rules and any applicable court decisions. There is no "check list" or other detailed standards or requirements upon which such decisions are based. The retirement director determines on an ad hoc basis as to whether nor not an employee is engaged in such duties as to indicate a need for early retirement because of the hazardous or strenuous type of work involved in the primary duties of a particular position. The director based his decision to deny special-risk membership to Petitioner because her job description did not support her claim that her primary duties and responsibilities required her to regularly bear a firearm or other weapon. (Testimony of Kennedy, Depositions Exhibits 5 - 6, Exhibit 2)
The history of Rule 22B-1.05(3)(b), Florida Administrative Code, shows that it was originally promulgated on January 1, 1972, as Rule 22B-1.05C. It war substantially amended on October 20, 1972, to read as follows:
The criteria which shall be used by the employer and the Administrator in determining
that a position shall be classified as a special-risk position are:
It must first be determined that the position falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees, fireman, or any other job in the field of law enforcement or fire protection.
Once it is determined that the position falls into one of the categories of positions enumerated in (1), the position shall be considered hazardous and classified as special-risk if in the judgement of the administrator, continued performance of the primary duties and responsibilities of the position beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical and well-being of the member, and at least one
of the following statements applies to the position:
The duties and responsibilities of the position require that the incumbent regularly bear a firearm or other weapon.
The incumbent of the position in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.
The primary duty and responsibility of the incumbent of the position is to maintain physical custody of prisoners within a prison or detention facility or while being transported.
The duties and responsibilities of the Position require that the incumbent fight fires, other than controlled fires set for instructional purposes. (Emphasis Added)
On December 31, 1974, the rule was again adopted after a public hearing to meet the requirements of the new Administrative Procedure Act. On August 9, 1976, the portion of Rule 22B-1.05 C. 2. that stated "will constitute a hazard to the public and a member's fellow workers" was repealed to comply with a court decision rendered in Florida Sheriffs Association v. State of Florida, Department of Administration, Division of Retirement, 332 So.2d 36 (Fla. 1st DCA 1976). The notice of this intended action as required by Section 120.54(1), F.S., contained the following statement: "ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: The repeal of this rule will not have any economic impact."
On January 16, 1977, Rule 22B-1.05 was further amended to add a new subparagraph D which established procedures for applying for special-risk membership and for the disposition of applications for such membership.
Subparagraphs A through C were unchanged. In the notice of the agency's intended action, it was stated: "ESTIMATE OF ECONOMIC IMPACT: This rule is procedural in nature and therefore has no economic impact."
At some unknown date thereafter, Rule 22B-1.05C was renumbered and is presently shown in the Florida Administrative Code as 22B-1.05(3). (Composite Exhibit 1)
CONCLUSIONS OF LAW
Petitioner seeks to invalidate Rule 225-1.05(3) Florida Administrative Code. Subsection (3) of that rule reads in its entirety as follows:
22B-1.05 Qualifications and Application for Special-Risk membership
* * *
The criteria which shall be used by the employer and the Administrator in determining that a member shall be classified as a special risk member are:
It must first be determined that the member falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional or detention facility, correctional agency employee whose duties and responsibilities involve direct contact with inmates (but excluding secretarial and clerical employees), fireman, or any other job in the field of law enforcement or fire protection.
Once it is determined that the member falls into one of the categories of the member's enumerated in (a), the member's duties shall be considered hazardous and
the member classified as special risk if, in the judgement of the Administrator, continued performance of the primary duties and responsibilities of the member beyond
the normal retirement age for a special-risk member will jeopardize the physical or mental well-being of the member and at least one of the following statements applies to the member.
The duties and responsibilities of the member require that he regularly bear a firearm or other weapon.
The member in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.
The primary duty and responsibility of the member is to maintain physical custody of prisoners within a prison or detention facility or while being transported.
The duties and responsibilities of the
member require the fighting of fires, other than controlled fires set for instructional purposes.
Section 121.031, Florida Statutes, dealing with the Florida Retirement System, directs the Respondent to "make such rules as necessary for the effective and efficient administration of this system." Section 121.021(15) defines "special-risk" member as follows:
(15) "Special risk member" means any officer or employee whose application is approved
by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman; highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.
Petitioner seeks an administrative determination under Section 120.56, F.S., that Rule 22B-1.05(3)(b) is an invalid exercise of delegated legislative authority on the following grounds:
The rule exceeds the mandate of its statutory authority because it grants to the administrator sole discretion to approve or disapprove applications for special-risk memberships.
The rule conflicts with an existing statute.
No economic impact statement was issued when the rule was promulgated.
The rule is arbitrary and unreasonable.
The parties stipulated at the hearing that Petitioner is substantially affected by the rule.
As to ground (b) above, Petitioner claims that the rule conflicts with Section 121.025, F.S., which vests power in the retirement director to serve as administrator of the retirement system and provides that authority may be delegated to him to sign contracts necessary to carry out his duties and responsibilities. Petitioner maintains that the discretion of the director to approve or disapprove special-risk membership as contained in the contested portion of the rule exceeds the powers of the director as set forth in the statutory provision. This ground for invalidation of the rule is without merit because Section 121.021(15) provides for approval of special-risk membership applications by the administrator and that is the statutory provision on which the rule is based.
As to grounds (a) and (d) cited in paragraph 3 above, the First District Court of Appeals held on May 24, 1976, that Rule 22B-1.05C (now Rule
22B-1.05(3)) was valid in that the legislature had intended that the administrator of the retirement system could exercise reasonable discretion in determining whether or not members falling within the categories set forth in the statute exercised hazardous duties entitling them to special-risk membership. Department of Administration v. Brown 334 So.2d. 355 (Fla. 1st DCA 1976). Again, on December 6, 1977, the same court specifically held that Rule 22B-1.05 was valid, citing the Brown case. Shields v. Division of Retirement,
352 So.2d 1239 (Fla. 1st DCA 1977). Those decisions effectively dispose of Petitioner's contentions that the rule exceeds statutory authority or is arbitrary and unreasonable.
As to Petitioner's ground (c) that no economic impact statement was issued when the rule was promulgated, the the following matters are pertinent. The facts show that the rule, in substantially its present form, was adopted in 1974, pursuant to Section 120.54, F.S. At that time, no economic impact statement was required. Effective June 25, 1975, Section 120.54(1) was amended to include the requirement that an agency must set forth in its notice of the adoption, amendment, or repeal of any rule an estimate of the economic impact of the proposed rule on all persons affected by it. Effective July 1, 1976, Section 120.54 was again amended to add subsection (2) which spelled out detailed information to be included in the required economic impact statement. Thereafter, on August 9, 1976, a portion of Rule 22B-1.05C was repealed as required by the effect of a court decision. At that time, the agency did not prepare an economic impact statement and stated in its notice that repeal of the specific portion of the rule would not result in any economic impact. It is considered unnecessary to discuss the validity of that statement because, as noted in paragraph 6 above, the rule was subsequently held valid in its present form in the Shields case. Such decision, of course is binding on this Hearing Officer, and implicitly precludes consideration now of any procedural errors committed by an agency in promulgating the rule. Although the rule was again amended on January 16, 1977, the contested portion of the rule seas left unchanged and, accordingly, that amendment is not in issue here.
It is concluded therefore that Petitioner has not established that Rule 2D 1.05(3)(b) , Florida Administrative Code, is an invalid exercise of delegated legislative authority.
DONE and ORDERED this 16th day of May, 1978, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
E. Douglas Spangler, Jr. Assistant Division Attorney Division of Retirement
Carl J. Leib, Jr., Esquire
Carroll Webb, Executive Director Administrative Procedures Committee Room 120 - Holland Building Tallahassee, Florida 32304
