STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. CALUWE, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 83-123RX

) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 21, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Raymond A. Rea, Esquire

Post Office Box 251

Boynton Beach, Florida 33425

For Respondent: Michael Mattimore, Esquire

121 Majorca, Third Floor Coral Gables, Florida 33134

By Petition for Administrative Determination of Rule filed with the Division of Administrative Hearings on January 13, 1983, Petitioner challenges the Corrective Action-Policy of the South Florida Water Management District ("Respondent") as an invalid rule, in that it was not adopted pursuant to the formal rulemaking procedures of Section 120.54, Florida Statutes. Petitioner contends that a full reading of the challenge policy reveals that the policy purports in and of itself to create certain rights and adversely affect others. Respondent also alleges that the policy affects the private interests of the Respondent's employees in a prospective manner in addition to having the direct and consistent effect of law. Accordingly, Petitioner asserts that the Corrective Action-Policy is an agency rule which must be promulgated according to the provisions of Section 120.54, Florida Statutes.

Respondent contends that Petitioner lacks standing to maintain this rule challenge proceeding, asserts that the Corrective Action-Policy is not a "rule" within the meaning of Chapter 120, Florida Statutes, due to its extremely limited geographic applicability, that the policy qualifies for the "internal management" exception from the definition of a "rule" pursuant to Section 120.52(14)(a), Florida Statutes, and, finally, that the policy is not subject to attack as an invalid rule by virtue of the fact that Respondent affords disciplined or discharged employees the right to a formal Section 120.57(1), Florida Statutes, hearing.

Final hearing in this cause was scheduled for February 21, 1983, by Notice of Hearing dated January 26, 1983. At the final hearing Petitioner testified in his own behalf and called Mark Chapman as a witness. Petitioner offered Petitioner's Exhibits 1 and 3 through 11, each of which was received into evidence. Respondent called Mark Chapman as its only witness, and offered Respondent's Exhibits 1 through 3, which were received into evidence.

Each of the parties has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Effective July 18, 1982, Respondent has effectuated its Corrective Action-Procedure Index and Corrective Action-Policy ("the policy") which, by its own terms, ". . . defines appropriate corrective actions for resolving performance problems and violations of rules of conduct." In the "Statements of Policy" section of the document, the policy is made to apply to all District employees and is intended to ". . . provide all employees with responsible and considerate supervision, and treat all employees in a fair and uniform manner." The policy also provides that ". . . [u]nsatisfactory performance or conduct shall be subject to the corrective actions outlined in the following procedures. "

   
   

2. The policy categorizes unsatisfactory behavior into performance, personal and disciplinary problems, within each of which categories supervisory personnel are required to follow specific procedures. Although supervisors may discipline an employee to a lesser extent than that provided in the policy for a particular infraction, as indicated above, one of the specific stated purposes of the policy is to treat all of Respondent's employees in a fair and uniform manner.

   
   

3. Disciplinary actions are divided into four categories according to the seriousness of the offense. Potential penalties range from verbal warnings for less serious offenses to discharge for more serious violations. The policy does provide, however, that even for the least serious category of offenses, a supervisor is required at a minimum to give a verbal warning and counselling for a first offense. Specifically, with respect to categories of offenses and penalties, the policy provides as follows:

   
   

   1. General Regulations:

      1. Categories are determined by the seriousness of the offense.

      2. Offenses in each category are assigned disciplinary points, which shall remain in effect for the time limits shown.

      3. Points and time limits are cumulative through all categories.

      4. A total of 100 points in effect may be cause for termination.

      5. Voided actions shall be removed from the unit personnel file after each annual merit review.

   2. Category 1 Offenses:

      (15 points remain in effect for three months with each action except verbal warning)

      1. Being more than 10 minutes late to work without notifying the appropriate super- visor, or division office.

      2. Failure to notify the appropriate super- visor or division office of absence, due to sickness, within 10 minutes from the start of the normal work day.

      3. Unauthorized absence from work or work station.

      4. Failure to report any injury or accident to immediate supervisor.

      5. Transporting unauthorized persons in District vehicles.

      6. Interfering with the work activities of other employees.

         
         

         Maximum Penalties:

         First offense Verbal warning Second or third offense Written warning Fourth offense 1 day suspension

         Fifth offense 2 day suspension

         Sixth offense 3 day suspension

         Seventh offense 5 day suspension

         Eighth offense Discharge

         
         

   3. Category 2 Offenses:

      (25 points remain in effect for six months with each action)

      1. Failure to follow approved safety procedures in accordance with the District Accident Prevention Manual.

      2. Abuse of District property or equipment.

      3. Unauthorized use of District property or equipment.

      4. Operating a District vehicle or equipment in an unsafe manner.

      5. Failure to follow unauthorized instructions.

      6. Failure by a supervisor to make a written report of any employee accident involving injury or property damage, which has been properly reported.

      7. Possession or display of an unauthorized weapon while performing official District duties.

      8. Use of abusive language to a co-worker.

         
         

         Maximum Penalties:

         First offense Written warning Second Offense 3 day suspension Third offense 5 day suspension Fourth offense Discharge

   4. Category 3 Offenses:

      (50 points remain in effect for one year with each action)

      1. Use of abusive or threatening language to the public, or use of threatening lan- guage to a co-worker.

      2. Failure to perform an assigned duty.

      3. Carelessness or negligence in the per- formance of duty resulting in serious injury or property damage.

         
         

         Maximum Penalties:

         First offense 5 day suspension Second offense Discharge

         
         

   5. Category 4 Offenses:

      (100 points and immediate discharge pending investigation)

      1. Theft

      2. Refusing to perform assigned duties.

      3. Assault upon co-workers or the public.

      4. Possession of or consuming alcoholic beverages, non-prescribed narcotics

         or controlled substances during working hours.

      5. Intentionally falsifying any District record or destroying any record in violation of state law.

         
         

         Maximum Penalty:

         First Offense Discharge

         
         

4. By Memorandum dated March 19, 1982, Petitioner was advised by Respondent that he was assigned 25 disciplinary points for failure to follow authorized instructions, a Category 2e offense under Respondent's above-stated policy. By Memorandum dated July 30, 1982, Petitioner, who had worked for Respondent for eight years, was terminated from his employment because he had accumulated an additional 100 disciplinary points, 25 more than that required for termination under Respondent's policy. Specifically, Petitioner was assessed the additional 100 disciplinary points as follows: 25 points for failure to follow authorized instructions by not filing a grievance, a Category 2e offense;

   25 points for the use of abusive language to a

   co-worker, a Category 2h offense; and 50 points for use of abusive or threatening language to a member of the public, a Category 3a offense.

   
   

5. In his eight-year tenure as an employee of the Respondent, Petitioner had never been disciplined prior to the memoranda of March 19, 1982, and July 30, 1982.

   
   

6. It is undisputed that Respondent has not complied with the formal rulemaking requirements of Section 120.54, Florida Statutes, in adopting the challenged policy.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.

   
   

8. Petitioner is "substantially affected" by the policy challenged in this proceeding within the intent and meaning of Section 120.56(1), Florida Statutes, and therefore has standing to maintain this proceeding.

9. Section 120.52(14), Florida Statutes', provides 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. . . .

   
   

10. It is specifically concluded, as a matter of law, that Respondent's "policy" constitutes a "rule" within the meaning of Section 120.52(14), Florida Statutes, in that it is an agency statement of general applicability that implements, interprets, or prescribes law or policy. Further, the policy does not qualify for the exemption contained in Section 120.52(14)(a), Florida Statutes, for "internal management memoranda" in that it does, indeed, affect the private interests of Respondent's employees. See, Webster v. South Florida Water Management District, 367 So.2d 734 (Fla. 4th DCA 1979).

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

Respondent's Corrective Action-Procedure Index and Corrective Action-Policy constitute a "rule" within the meaning of Section 120.52(14), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority in view of Respondent's failure to comply with the rulemaking requirements of Section 120.54, Florida Statutes.

DONE AND ORDERED this 18th day of March, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Department of administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1983.

COPIES FURNISHED:

Raymond A. Rea, Esquire Post Office Box 251

Boynton Beach, Florida 33425

John R. Maloy, Executive Director South Florida Water Management

District

Post Office Drawer V

West Palm Beach, Florida 33402

Michael Mattimore, Esquire

121 Majorca, Third Floor Coral Gables, Florida 33134

Victoria Tschinkel, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Liz Cloud Regulation

Chief, Bureau of Administrative Code

Department of State The Capitol, Room 1802

Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administration Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-000123RX

Orders for Case No: 83-000123RX