vs. ) CASE NO. 78-750RX
) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF FLORIDA HIGHWAY PATROL, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 1, 1978, in Room 103 of the Collins Building, Tallahassee, Florida.
For Petitioner: William J. Manikas
For Respondent: Enoch J. Whitney and
Edwin E. Strickland Neil Kirkman Building
Pursuant to the provisions of Florida Statutes, Section 120.56, petitioner challenges the validity of two policies of the respondent Department of Highway Safety and Motor Vehicles. These policies govern dual employment and compensation of employees and disciplinary actions, grievances and appeals. Petitioner contends that these policies are rules within the meaning of F.S. Section 120.52(14), that they have not been properly promulgated in accordance with tie Administrative Procedures Act and that they therefore constitute an invalid exercise of delegated legislative authority. Petitioner further urges that the policy pertaining to dual employment constitutes an infringement of his constitutional rights of equal protection and due process of law and that the policy is offensive to the right to be rewarded for industry and constitutes an invasion of privacy.
Respondent argues that the policies in question constitute internal management memoranda and not "rules" within the meaning of F.S. Section 120.52(14). it is contended that they are simply a response to the requirements
of the State personnel rules contained in the Florida Administrative Code and have no application to person's outside respondent's agency. Respondent further contended at the hearing that petitioner is not substantially affected by either policy since he is no longer employed by the respondent.
Petitioner Gregory Scott Scherer was employed as a radio teletype operator with the Division of Florida Highway Patrol, Department of Highway Safety and Motor Vehicles and had attained permanent status in the career service system. By letter dated October 24, 1977, petitioner was notified that he was being terminated from this petition effective October 20, 1977. As grounds therefor, Colonel J. E. Beach, Director of the Florida Highway Patrol, stated:
"The termination is based on your wilful violation of Department of Highway Safety and Motor Vehicles' Management Manual Policy
#009, Dual Employment and Compensation, para- graph 3, Dual Employment Outside State Government, subparagraph D, by failing to receive written approval prior to engaging in dual employment."
The management manual policy #009 is one of the two policies being challenged herein, and was received into evidence as Exhibit 1. Paragraph 3 of that policy pertains to dual employment outside state government and subparagraph D provides as follows:
"Employees located in the Kirkman Building shall receive written approval from the appropriate bureau chief prior to engaging in dual employment outside state government. In the field offices, written approval must be received prior to engaging in dual employment outside state government as follows:
DIVISION REQUIRED APPROVAL
Highway Patrol Troop Commander
Driver Licenses Regional Supervisor Motor Vehicles:
Bureau of Licensing
and Enforcement District Supervisor
Bureau of Mobile Home
Construction District Supervisor
However, if there should be any question as to conflict of interest, the request should be in writing to the appropriate Division Director, who will acknowledge and either approve or disapprove the request in writing."
The remainder of Policy Number 009 pertains to dual employment within state government, which requires approval by the State Personnel Director, provides a definition of a conflict of interest and contains a paragraph regarding disciplinary action upon a violation of the policy.
Respondent urges that Policy Number 009 constitutes no more than internal management memoranda issued in response to and compliance with F.A.C. Rule 22A-2.16. This contention fails for several reasons.
Rule 22A-2.16 derives its authority from F.S. Section 216.262. In pertinent part, this statute prohibits individuals employed by a state agency from holding more than one employment during normal working hours with the state and from filling more that a total of one full-time equivalent established position without approval by the Department of Administration. F.S. Section 216.262(1)(c) and (d). The statute does not address employment by a state employee outside his normal working hours with an employer other than the State of Florida. Nor does Rule 22A-2.16 specifically address this latter situation, other than to direct each agency head to
"develop written procedures governing the dual employment of employees, both within and outside state government and submit such pro- cedures to the State Personnel Director for approval prior to implementation. These pro- cedures may include any provisions deemed necessary by the agency head, . . ."
Respondent's Policy Number 009 was in fact approved by the State Personnel Director and by the Governor and Cabinet sitting as the respondent's agency head.
Rule 22A-2.16, F.A.C., does not and could not, by itself, exempt the respondent from the rule-making requirements of the Administrative Procedures Act. If, indeed, respondent's Policy Number 009 constitutes a "rule" within the meaning of the APA, Rule 22A-2.16 simply requires an additional step in the
rule-making procedure; to wit: approval by the State Personnel Director prior to implementation.
A "rule" is defined in F.S. 120.52(14) as
"each agency statement of general applica- bility 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 statute or by an existing rule. The term does not include:
(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public, . . ."
Respondent's Policy Number 009 is applicable to every employee within the Department of Highway Safety and Motor Vehicles. It implements, interprets and prescribes the policy of the respondent with respect to dual employment and compensation. It is, therefore, a rule unless excluded from that definition by the term "internal management memoranda." In order to fall within the latter term, the policy must not affect either the private interest of any person and it must have no application outside the agency issuing the memorandum. Respondent's policy respecting dual employment outside normal working hours by an entity other than state government certainly affects the private interests of the employee and has application outside the respondent's agency. Whether or not a state employee's right to work for another entity during his off-hours
from the State is subordinate to the public needs of the agency may be determinative of the policy's validity or constitutionality. However, it is not dispositive of the categorization of the policy as a "rule" or as an "internal management memorandum." See John P. Walsh v. Dept. of Offender Rehabilitation, DOAH Case No. 76-1185R, October 29, 1976,; aff'd. in Dept. of Offender Rehabilitation v. Walsh, 352 So.2d 575 (Fla. App. 1st, 1977). The policy in question clearly affecting the private interests of those to whom it is made applicable and clearly having application outside the respondent's agency, it does not fall within the definition of an internal management memorandum and is therefore a "rule" within the meaning of F.S. Section 120.52(14).
The respondent seems to suggest that the dual employment policy is not its agency statement, but is instead the fulfillment of a mandate from the state personnel division. It is further suggested that absent Rule 22A-2.16 and F.S. Section 212.262, respondent would have no authority to promulgate a policy relating to dual employment of its employees. Such contentions are not dispositive of the policy's status as a "rule." It either is a rule within the definition of the APA or it is not. Whether or not the policy finds statutory authority is relevant to its validity, and not to its characterization as a rule. It should be noted that that portion of Policy Number 009 pertaining to dual employment outside state government required written approval by persons within the respondent's agency. It does not require approval by the State Personnel Director. Thus, it cannot be successfully contended that this is a policy of an agency other than the respondent. Further, F.S. Section 321.02 provides that the respondent
"shall set up and promulgate rules and regulations by which the personnel of the Florida Highway Patrol officers shall be examined, employed, trained, located, sus- pended, reduced in rank, discharged, recruited, paid and pensioned "
It being determined that Policy Number 009 is a "rule" within the meaning of the APA, it next becomes necessary to determine whether petitioner is substantially affected by that rule. Petitioner was terminated from his employment with respondent for one reason -- the alleged violation of the policy in question. As such, petitioner has sufficiently illustrated an injury in fact accompanied by a continuing, present adverse effect. Petitioner thus has more than the "illusory" interest found to be insufficient in the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App 1st, 1978), and has established his standing as a substantially affected person within the meaning of F.S. Section 120.56.
Respondent has admitted that Policy Number 009 was not promulgated in accordance with the procedural requirements of the APA. As such, the unpromulgated rule constitutes an invalid exorcise of delegated legislative authority and is invalid.
Petitioner further attacks the policy on substantive, constitutional grounds. Challenges to the constitutionality of existing agency rules are for the courts to determine, and thus this issue is not properly before the Division of Administrative Hearings. Adams Packing Association, Inc. v. Fla. Dept. of Citrus, 352 So.2d 569 (Fla. App. 2nd, 1977); Dept. of General Services v. Willis, 344 So.2d 580 (Fla. App. 1st 1977)
Respondent's personnel rules and regulations relating to disciplinary actions, also referred to as General Order No. 43, are also challenged by petitioner herein. Petitioner has failed to adequately demonstrate that he has been substantially affected by these rules. His letter of termination indicates, and the testimony adduced at the hearing so establishes, that his termination was based upon a willful violation of Policy Lumber 009 by failing to receive written approval prior to engaging in dual employment. The last paragraph of Policy Number 009 provides that
"Violation of this policy shall be considered willful violation of rules, regulations or policies. Employees will be subject to dismissal or other disciplinary action in accordance with the Department's approved disciplinary guidelines as approved by the State Division of Personnel."
It thus appears that while petitioner has amply illustrated that he was substantially affected by Policy Number 009, he has not demonstrated standing to challenge the personnel rules establishing guidelines for disciplinary actions against employees. The disciplinary action imposed upon petitioner finds its authority in Policy Number 009 and was cited as the basis for petitioner's termination. Petitioner has failed to show that he is or was substantially affected by General Order No. 43.
DONE and ORDERED this 28th day of June, 1978, in Tallahassee, Florida.
DIANE D. TREMOR
