ASSOCIATION, and MARCUS A. )
vs. ) CASE NO. 78-1680RX
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 12 October, 1978 at Tallahassee, Florida.
For Petitioners: Mallory E. Horne, Esquire
For Respondent: Enoch J. Whitney, Esquire
By Petition dated 14 September 1978, the Florida Police Benevolent Association (PBA) and Marcus A. McGowan, Petitioners, seek a determination that General Orders Numbers 40 and 43 of the Department of Highway Safety and Motor Vehicles, Respondent, are rules as defined by Chapter 120 Florida Statutes and invalid by reason of not having been promulgated in accordance with the requirements of that Chapter.
The Petition alleges that Petitioner McGowan was dismissed from his position as Trooper with Respondent as a direct result of his failure to comply with General Order (G.O.) 40.
Respondent, in its Response to the Petition, admits that General Orders 40 and 43 were not promulgated in accordance with Chapter 120 but contends that these are not rules but internal management memoranda which are exempt from the definition of a rule; suggests that Section 120.52(14) Florida Statutes may be unconstitutionally vague both facially and as applied to the facts of this case; and suggests that the Division of Administrative Hearings is without
jurisdiction to entertain this Petition because it is a collateral attack upon Respondent's Order dismissing Petitioner McGowan.
The facts in this case are not disputed. One witness was called by the Respondent and one exhibit was admitted into evidence. The primary, if not sole, issue for determination in this case is whether General Orders 40 and 43 are rules.
Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed.
G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part:
Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A.
Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat.
Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43.
G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part:
C. Guidelines:
The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be
more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take.
G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed.
By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight.
By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter.
By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations.
By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations.
On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Although Respondent raised the issue of Constitutionality of Section 120.52(14) Florida Statutes it was acknowledged that this issue is without the jurisdiction of this hearing officer.
Respondent's representation in its Response to Petition that DOAH is without jurisdiction to entertain the instant Petition, because this is nothing more than a collateral attack upon Respondent's Order dismissing Petition, is without merit, and particularly so in view of Respondent's stipulation entered into before the Arbitrator that this issue be presented to DOAH.
Since all parties agree that the procedural requirements for the adoption of a rule pursuant to Chapter 120 Florida Statutes were not followed with respect to the promulgation of G.O.'s 40 and 43 these orders, if rules, are invalid. The sole issue then is whether G.O.'s 40 and 43 are rules as contended by Petitioner or internal management memoranda as contended by Respondent.
Section 120.52(14) Florida Statutes defines rule as follows: "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 statute or by an existing rule.
The term also includes the amendment or repeal of a 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 and which have no application outside the agency issuing the memorandum.
The General Orders here involved clearly meet the definition of rule contained in Section 120.52(14) Florida Statutes above quoted, as on their face these Orders apply to all law enforcement personnel of the Respondent and prescribe policy applicable throughout the agency respecting physical fitness of these law enforcement personnel. Department of Administration v. Harvey, 356 So.2d 323 (Fla 1st DCA 1977). They are therefore rules unless they come under the exception contained in Section 120.52(14)(a) Florida Statutes above quoted.
In Walsh v. Department of Offender Rehabilitation, DOAH Case No: 76- 1185R, aff'd. per curiam 352 So.2d 575 (Fla 1 DCA 1977) the determination was made that a regulation prescribing hair styles for employees was a rule and not excepted from being promulgated in accordance with Chapter 120 Florida Statutes by the exception provided in Section 120.52(12)(a).
The issues in the Walsh case are very similar to the issues here involved. The regulation under attack in Walsh involved hair styling (length, beard, etc.) while the Orders here being considered involve weight. It is undoubtedly more important to the public that troopers are physically capable of performing their duties than it is that other state employees remain clean shaven and without beards. Little difference in a private interest respecting beards and a private interest in overeating is perceived. While weight limiting orders for law enforcement personnel are perhaps more important than are personal appearance regulations for Department of Offender Rehabilitation personnel, this goes to the need for and validity of the rule and not whether either regulation is a rule.
In Scherer v. Department of Highway Safety and Motor Vehicles, DOAH Case No. 78-750R, Respondent contended that its policy respecting dual employment was not a rule but an internal management memorandum. The policy, which had not been adopted as a rule pursuant to the procedures required by
Chapter 120, provided that employees must obtain permission before engaging in dual employment outside state government.
The Hearing Officer in Scherer found the policy met the general definition of a rule and was not excepted there from by Section 120.52(14)(a) because the ban against dual employment affected the private interests of the employee and that the policy had application outside the agency.
In Department of Administration v. Stevens, 344 So.2d 290 (Fla 1st DCA 1977) the court sustained the Hearing Officer's decision that certain Guidelines and Directives, which set forth the procedures for "bumping" or laying off an employee whose position has not been terminated upon termination by the Legislature of another employee's position through the use of a point system set up by these Guidelines and Directives, are rules. Since the Guidelines and Directives were not adopted in accordance with the requirement of Chapter 120 Florida Statutes, these rules were held to be invalid. The Court stated at p. 296:
Under the questioned Guidelines and Directives, the employee whose position is terminated is shifted to the position of another employee who has less points and the latter is laid off. These two documents clearly are agency policy statements of general applicability which were applied
and were intended to be applied with the force of a rule of law. They are not internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public. They do not fall within any of the other exceptions to the statutory definition. The procedures established by the Directives and Guidelines very definitely affect the private interests of the employees involved as well as procedures that are important to the public. The Directive purports in and of itself to create certain rights and adversely affect others. It was promulgated for prospective application some time before the immediate exigency arose and was issued by the agency head for implementation by subordinates with little or no room for discretionary modification.
Why these Directives and Guidelines affect or constitute a plan or procedure important to the public was apparently obvious to the Court and announced as a judicial fiat.
It is difficult to see how the General Orders here involved can be any less important to the public than the Directives and Guidelines in Stevens or have any less effect on the private interests of the employees than the directive involved in Stevens.
This leaves only the conclusion that General Orders Numbers 40 and 43 here involved likewise affect or involve a plan or procedure, to wit: the age - height - weight requirements for State Troopers, which are important to the
public and which affect the private interests of the law enforcement personnel employed by the Florida Highway Patrol.
Respondent further contends that the General Orders here under attack are statements of incipient policy which do not have general applicability in that they are not intended by their own effect to create rights or to require compliance, or otherwise to have the direct and consistent effect of law. To support that position it cites McDonald v. Department of Banking and Finance,
346 So.2d 569 (Fla 1 DCA 1977) where the Court stated at pp. 580, 581:
The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rule-making process of Section 120.54. Agencies will hardly be encouraged to structure their discretion progressively by vague standards, then definite standards, then broad principles, then rules if they cannot record and communicate emerging policy in those forms without offending Section 120.54. The folly of imposing rulemaking procedures on all statements of incipient policy is evident.
* * *
For 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. E.g, Stevens,
344 So.2d at 296. That is the meaning of the essentially identical 'rule' definition in the federal Administrative Procedure Act, which 'obviously could be read literally to encompass virtually any utterance by an agency . . .' Pacific Gas & Elec. Co. v. FPC, 164 U.S. App.D.C. 371, 506 F.2d 33, 37 (1974) (guidelines order held not a rule because the agency did not intend it to operate of its own effect, but subject to modification by adjudications).
McDonald points up the concern that under the broad definition of rule contained in Chapter 120, almost every agency statement could be found to be a rule even if it had no applicability outside the agency. It was the obvious intent of the Legislature to exempt from the definition of rule certain agency actions which had no effect outside the agency and which did not affect private interests of agency employees.
Here the General Orders certainly require compliance with their provisions respecting the excess poundage a trooper can carry and retain his position of employment; and, unless excepted under subsection (a), they are clearly rules and not incipient policy as contended by Respondent.
Nearly all internal management policies which are applicable to an agency would be included in the broad definition of rule unless they somehow are fit into the exceptions. Unless the meaning of private interests is restricted
to some type of right that a person does not give up by accepting employment with the agency, the exception for internal management memoranda provided by subsection (a) is emasculated.
To date, little consideration has been given to the internal management memoranda exception to the rule. In Harvey, supra, the Court stated at p. 325:
Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than 'rule'. The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it 'purports in and of itself
to create certain rights and adversely affect others.' Stevens, 344 So.2d at 296, or serves 'by (its) own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.' McDonald v. Department of Banking
& Fin., 346 So.2d 569, 581 (Fla. 1st DCA
1977). See also Straughn vs. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977)."
The instant case demonstrates how Rule challenges present serious problems to the agencies in establishing and carrying out policies applicable only to agency employees which are not formally promulgated as rules. Once the agency attempts to enforce such a policy on employees who fail or refuse to comply, the policy begins to affect private interests.
Rule 22A-7.10(7)(a) Florida Administrative Code authorizes an agency head to dismiss any employee for just cause and defines just cause to include insubordination. Here McGowan was dismissed for insubordination, third offense, and each insubordination resulted from his failure to comply with General Order No. 40 to reduce his weight to comply with the weight limits prescribed in General Order 40.
Since General Order Nos. 40 and 43 meet the definitions of rule and are not excepted from that definition by the exception for internal management memoranda, these orders are void "rules" because they were not promulgated as required by Chapter 120.
Because the General Orders are void and unenforceable, it would appear that a charge of insubordination based upon a failure to comply with these rules would likewise fall.
While it may be doubtful that the Legislature intended the result here reached, the language used in Section 120.52(14) as interpreted by the Court in Stevens, Walsh, and other cases above cited, leaves no viable conclusion but General Orders No. 40 and 43 are rules and void because not adopted in accordance with the rulemaking provision of Chapter 120. It is therefore
ORDERED that General Orders Nos. 40 and 43 of the Florida Highway Patrol are rules and void by reason of Respondent's failure to comply with the rulemaking procedures required by Chapter 120, Florida Statutes.
Done and ordered this 8th day of November, 1978.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Mallory E. Horne, Esquire
P. O. Box 1140
Enoch J. Whitney, Esquire Assistant General Counsel Division of Highway Safety
