STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE NELSON, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1574

) STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 122, Fletcher Building, 101 East Gaines Street, Tallahassee, Florida, commencing at 9:30 a.m., November 19, 1980.

APPEARANCES

For Petitioner: Stephen J. Keller, Esquire

Patterson & Traynham 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32303

For Respondent: Robert A. Chastain, Esquire

General Counsel

Department off Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

ISSUE

The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.

FINDINGS OF FACT

1. The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific

   employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.)

   
   

2. As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials.

   
   

3. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board.

   
   

4. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy.

   
   

5. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject.

   
   

6. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence.

   
   

7. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This

   correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence.

   
   

8. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point.

   
   

9. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits.

   
   

10. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate.

    
    

11. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not.

    
    

12. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent.

    
    

13. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal

    of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing.

    
    

14. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated.

    
    

15. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger.

    
    

16. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction ever the subject matter and the parties to this action.

    
    

18. While it is difficult to envision what the Petitioner in this action had in mind in filing his petition letter of August 27, 1980, other than to say that he was opposed to dismissal from employment and apparently desired to be reinstated as a permanent status Career Service employee with the Respondent agency; the dimensions of this Subsection 120.57(1), Florida Statutes, hearing has been defined by the document of transmittal from the General Counsel of the Respondent agency dated August 27, 1980. In that document counsel indicates that Rule Section 22A-13.032(1), Florida Administrative Code, allows for this hearing. In pertinent part, that provision states:

    
    

    1. If the agency head denies an employee's request submitted in accordance with this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the agency head or his/her designate. A request for hearing pursuant to this section shall be filed with the agency head within 20 days from the date the employee receives notice of the decision to deny approval of his/her request be campaign for or hold a local public office."

       This provision is an adjunct to Rule 22A-13.031, Florida Administrative Code, dealing with the procedure to be followed by a State employee wishing to run for local election. 1/

       
       

19. From a review of the aforementioned provisions within Rule 22A-13, Florida Administrative Code, taken in the context of the facts found in this Recommended Order, it is obvious that a determination by the review procedure contemplated by Rule 22A-13.032, Florida Administrative Code, is moot. Nelson made a timely request for approval of his candidacy, in that the Rule 22A- 13.031, Florida Administrative Cede, became effective on July 1, 1980, thereby not allowing him the normal forty-five days prior to the qualifying deadline to submit his request; consequently, the time requirement should be waived, reasonable cause having been shown for the waiver. Nonetheless, when Nelson decided to go forward with his candidacy by taking the candidate's oath on July 22, 1980, after being advised on July 18 and July 21, 1980, that it would not be approved and did so without affording the agency the customary ten days to respond to his request in writing as required by the said Rule, the effect of his decision was to forego the review procedure set forth in Rule 22A-13.032, Florida Administrative Code. Therefore, the only purpose which the formal hearing held in this matter has served is to confirm the factual development of this case, i.e., the fact of Nelson's decision to run on July 14, 1980, the oral representations to him on July 18 and 21, 1980, that he would not be allowed to run; his taking of the oath of candidacy on July 22, 1980; the ensuing discussions by various officials within the agency in an attempt to persuade him from pursuing this course, having failed to gain the necessary permission to offer his candidacy; and the eventual termination of his employment on August 15, 1980.

    
    

20. The review procedure set forth in Rule Section 22A-13.032(1), Florida Administrative Code, does not create an opportunity to place at issue the forced resignation consonant with the terms of Rule 22A-13.04, Florida Administrative Code; 2/ however, contemporaneous with the ruling in this case a rules determination is being made in the Division of Administrative Hearings Case No. 80-1925R, George Nelson v. State of Florida, Department of Administration; and State of Florida, Department of Agriculture and Consumer Services, which finds the subject rule to be an invalid exercise of delegated legislative authority. As a result of that determination and in keeping with the rationale set forth in that Order, the only appropriate penalty that may be assessed against the Petitioner would be a penalty in keeping with Section 110.227, Florida Statutes, subject to review de nova before the Career Service Commission pursuant Section 110.309, Florida Statutes.

    
    

21. Finally, although the petition letter herein fails to make mention of Rule Section 22A-7.10(4)(b), Florida Administrative Code, counsel for the Petitioner has attempted to argue that the present form of termination of an employee by a declaration of ineligibility for employment creates a review procedure for such decision. That subsection states:

    
    

    "(b) An employee who becomes ineligible for continued employment pursuant to Section 110.233(4), Florida Statutes, shall be entitled to review in accordance with Section 22A-13.032, F.A.C. The employee shall be notified in writing by certified mail, return receipt requested, and such notification shall include a statement as to the employee's right to review under Chapter 22A-13, F.A.C."

    It is unclear what is contemplated by this rules provision, particularly so when read in paramateria with Rule Section 22A-7.10(4)(a), Florida Administrative Code, 3/ which seems to promote automatic termination without review if one declares for public office or holds a public office without the necessary permission.

    
    

22. Whatever interpretation should be given to Rule Section 22A- 7.10(4)(b), Florida Administrative Code, it is unnecessary to reach a conclusion through this Recommended Order, in view of the fact that the Petitioner failed to ask for such relief through his petition and his counsel failed to amend that petition to include such claim. (Notwithstanding this jurisdictional determination, it should be noted that Rule Section 22A-7.10(4)(a), Florida Administrative Code, has been declared to be an invalid exercise of delegated legislative authority in the Division of Administrative Hearings Case No. 80- 1925R, supra, and for reasons expressed in that opinion dealing with the authority of the State of Florida, Department of Administration to take action calling for the forced resignation of the permanent status Career Service employee and for reason that the Rule Section 22A-7.10(4)(b), Florida Administrative Code, thereby becomes an unnecessary corollary to the invalid penalty provision in the immediately preceding subsection, the provision under which the Petitioner would now seek relief is unavailable and inappropriate even if its availability had been presumed prior to the subject rules challenge case being decided.)

Based upon a full consideration of the facts herein and the conclusions of law reached, it is,

RECOMMENDED:

That the decision to deny the Petitioner, George Nelson, his right to seek and hold the office of School Board Member, District IV, Wakulla County, Florida, be UPHELD and that his attempt to use this proceeding to gain his reinstatement following the dismissal of August 15, 1980, be DENIED, without prejudice to his further rights of review, should the Respondent, State of Florida, Department of Agriculture and Consumer Services, determine to impose penalties pursuant to Section 110.227, Florida Statutes, based upon the failure of the petitioner to gain permission of his agency and the approval of the State of Florida, Department of Administration, prior to becoming a candidate for the public office in question. Review of the agency's action would be that review afforded before the Career Service Commission allowed for by Section 110.309, Florida Statutes. 4/

DONE AND ENTERED this 19th day of December, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1980.

ENDNOTES

1/ 22A-13.031 Procedures.

1. All requests for approval to he a candidate for and/or hold local public office shall be submitted to the appropriate agency head in writing no later than 45 days prior to the deadline for qualifying for the office, unless such time is waived by the employing agency for reasonable cause. Such requests shall advise the agency head of the title and summary of duties of the local public office to be sought, the hours of work involved in holding the office, what effects, if any, office or campaign duties will have on the employee's regular duties with the State, and the amount of remuneration, if any, which would be received by the employee if elected.

2. Within 10 days from the date the agency head receives an employee's request, the agency head shall determine whether the candidacy or duties of the local public office involve an interest which conflicts or an activity which interferes with the employee's state employment and shall either deny or grant authorization pursuant to the request in writing. The reasons for the agency's determination shall be stated with specificity. If the request is authorized, the agency head shall advise the Department of Administration in writing and forward a copy of the written request from the employee and of the agency head's authorization, along with a recommendation for approval and the reasons therefor.

3. Within 10 days from receipt of the agency heads' recommendation, the Department of Administration shall approve or disapprove the request in writing, specifying the reasons for the approval or disapproval. A copy of the letter of approval or disapproval shall be furnished the employee."

2/ "22A-13.04 Penalties. An employee who qualifies as a candidate for or holds public office without obtaining prior approval according to this chapter shall be ineligible for continued stated employment and shall be deemed to have resigned without right right to appeal to the Career Service Commission. In addition, the employee may by subject to penalties set forth in Section 110.127, Florida Statutes."

3/ "22A-7.10(4)(a) An employee who seeks or holds office contrary to or without complying with the provisions of Section 110.233(4), Florida Statutes, shall be presumed to have become ineligible for continuation of employment and shall be deemed to have resigned from the Career Service without the right to appeal to the Career Service Commission."

4/ The parties to this action have offered Proposed Findings of Fact, Conclusions of law and a Recommended Disposition of this action. These proposals and recommendations have been reviewed prior to the entry of this Order. To the extent that the proposals and recommendations are consistent with the Order, they have been utilized. To the extent that the proposals and recommendations do not conform to the Order, they are hereby rejected.

COPIES FURNISHED:

Stephen J. Keller, Esquire Patterson & Traynham

1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32303

Robert A. Chastain, Esquire Department of Agriculture and

Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301 INFORMATIONAL COPIES:

David Kerns, Esquire General Counsel

Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301

Samantha Boge, Esquire Assistant General Counsel Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 80-001574

Orders for Case No: 80-001574