STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1131RX

) FLORIDA DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on May 17, 1983, in Tallahassee, Florida. The following appearances were entered: The Petitioner, William R. Muldrow, appeared on his own behalf; Herbert D. Sikes, Tallahassee, Florida, appeared on behalf of the Respondent, Florida Department of Education.

On or about April 18, 1983, the Petitioner filed a "Petition to Suspend Rules." Petitioner therein contended that certain rules of the Florida Department of Education constitute invalid exercises of delegated legislative authority. In his Petition, and in a subsequent "Petition to Suspend/Strike," the Petitioner requested additional relief. On April 27, 1983, the Director of the Division of Administrative Hearings assigned the matter to the undersigned Hearing Officer. The final hearing was scheduled as set out above by notice dated April 28, 1983. At the hearing, the Petitioner called numerous witnesses, all of whom were employees of the Department of Education. The Department did not offer additional testimony.

FINDINGS OF FACT

1. The Department of Education set out to hire a person to fill the position of "Program Director II." The position was in the Department's Division of Public Schools, Bureau of Program Support Services, Management Information Services Section. It is one of the highest positions in the Department.

   
   

2. A selection committee was established by the Department to review applicants for the position. The Petitioner and approximately 19 other persons applied for the position and met the minimum requirements. The selection committee selected eight persons, one of whom withdrew, to be interviewed. The committee recommended five of the applicants, including Petitioner, to the Chief of the Bureau of Program Support Services. The Bureau Chief was concerned that none of the applicants recommended to him had experience with management information services at the school district level. He discussed the matter with the Secretary of the Department of Education and with the Director of the Division of Public Schools. The Bureau Chief decided to readvertise the position and to extend the deadline for applicants. His desire was to enhance the pool of applicants. Several additional persons thereafter applied and were interviewed by the selection committee. In addition to the five persons originally recommended to the Bureau Chief, the steering committee recommended

   an additional person. The Secretary of the Department ultimately decided to hire the new applicant.

   
   

3. The Department of Education utilizes an "Affirmative Action-Equal Employment Opportunity Plan." The Plan constitutes Appendix 6-0 of the Department's Policy and Procedures Manual. The Plan sets out the Department's policy of making employment decisions without regard to a person's race, color, sex, religion, creed, national origin, handicap, marital status, political opinions or affiliations, or age; and provides for announcement of position vacancies, employment recruitment, processing of applications, establishment of employee selection committees and the like. The plan has never been promulgated as a rule.

   
   

4. To aid selection committees in performing their duties, the Department has promulgated an Employee Selection Committee Handbook. Basically, the handbook summarizes and repeats the provisions of the Affirmative Action-Equal Employment Opportunity Plan and includes suggestions about structuring interviews and interview questions. The Employee Selection Committee Handbook has not been promulgated as a rule. The provisions of the handbook are not inconsistent with the provisions of the Affirmative Action-Equal Employment Opportunity Plan.

   
   

5. It has not been established that the Department failed to follow the provisions of its Affirmative Action-Equal Employment Opportunity Plan and Employee Selection Committee Handbook in the selection process which led to the hiring of the Program Director II. It has not been established that the Plan, the handbook, or the selection process itself operated unfairly as to any applicant, including Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Petitioner has alleged that the Department's Affirmative Action-Equal Employment Opportunity Plan constitutes an invalid exercise of delegated legislative authority because the plan was not properly promulgated as a rule. What constitutes a "rule" is defined in the Florida Administrative Procedure Act at Section 120.52(14), Florida Statutes, in pertinent part 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.

   . . . The term does not include:

   1. 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 Department's Affirmative Action-Equal Employment Opportunity Plan and Employee Selection Committee Handbook constitute internal management memoranda which do not affect either the private interest of any person or any plan or

      procedure important to the public. The documents merely provide for the manner in which the Department will make employment decisions. The documents therefore do not constitute rules, and the Department had no obligation to promulgate them as rules.

      
      

8. The Petitioner has contended that the plan and handbook are unconstitutional. A Hearing Officer of the Division of Administrative Hearings has no jurisdiction to resolve such claims. Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695, 699 (Fla. 1978); Department of Environmental Regulation v. Leon County, 344 So.2d 290, 295 ( 1 DCA Fla. 1977).

   
   

9. Finally, Petitioner contends that the hiring process was in many respects improperly conducted. This contention cannot properly be resolved through a Section 120.56, Florida Statutes, rule-challenge proceeding.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

Petitioner has failed to establish that the Department's Affirmative Action-Equal Employment Opportunity Plan and Employee Selection Committee Handbook constitute invalid exercises of delegated legislative authority, and the "Petition to Suspend Rules" and "Petition to Suspend/Strike" are hereby dismissed.

DONE and ORDERED this 14th day of July, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Department of Administration Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983.

COPIES FURNISHED:

William R. Muldrow 3070 Watterford Drive

Tallahassee, Florida 32308

Herbert D. Hikes, Esquire State Board of Education Knott Building

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32301

Carroll Webb, Esquire Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-001131RX

Orders for Case No: 83-001131RX