STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM M. BARNETTE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2416RX

)

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 September 12, 1983.

APPEARANCES

For Petitioner: Raymond A. Rea, Esquire

Post Office Box 251

Boynton Beach, Florida 33425

For Respondent: Stanley J. Niego, Esquire

Post Office Box V

West Palm Beach, Florida 33402-4238

Petitioner, William M. Barnette ("Petitioner"), alleges in his Petition that Respondent, South Florida Water Management District ("Respondent"), has adopted a Merit Review Program, which constitutes a "rule" within the meaning of Section 120.54(14), Florida Statutes, but has failed to comply with the rulemaking requirements of Section 120.54, Florida Statutes. Petitioner contends, therefore, that the Merit Review Program constitutes an invalid rule. Respondent contends that Petitioner was discharged under Respondent's Corrective Action Policy for inadequate performance, and, therefore, has not been substantially affected by the Merit Review Program so as to possess standing to maintain this proceeding. Respondent further contends that the Merit Review Program was exempted from the rulemaking requirements of Chapter 120, Florida Statutes, in that it constitutes an "internal management memorandum", or because it relates exclusively to internal agency practice, organization and procedure.

Final hearing was scheduled for September 12, 1983, by Amended Notice of Hearing dated August 26, 1983. At the final hearing Petitioner testified in his own behalf, and called Arthur Torvela as a witness. Petitioner offered Petitioner's Exhibits 1-5, which were received into evidence. Respondent called no witnesses, and offered Respondent's Exhibits 1 and 2, which were received into evidence.

Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed

findings of fact are not included in this Final Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees.

   
   

2. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982.

   
   

3. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy.

   
   

4. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge.

   
   

5. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding.

   
   

6. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation.

7. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 120.56(1), Florida Statutes provides, in pertinent part, that:

   
   

   Any person substantially affected by a rule may seek an administrative determi- nation of the invalidity of the rule on the ground that the rule is an invalid

   exercise of delegated legislative authority.

   
   

10. A party challenging the validity of an existing rule bears the burden of proving his standing to maintain such a challenge when, as here, such standing is made an issue in the proceeding. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to sufficiently establish standing to challenge a rule, a Petitioner must show....that the rule has a real and immediate affect upon one's case as well as injury in fact All Risk Corporation v. Department of Labor and Employment Security, 413 So.2d 1200, 1202 (F1a. 1st DCA 1981).

    
    

11. Here, Petitioner alleges that his termination of employment by Respondent clothes him with sufficient standing to challenge the Merit Review Program as a rule. However, the Merit Review Program, on its face, has no applicability to proceedings relating to the termination of Respondent's employees, dealing rather with identification and documentation of employee performance for purposes of salary adjustment. It is the behavior documented in the Merit Review Program which Respondent used in applying its Corrective Action Policy to terminate Petitioner's employment. As such, the Merit Review Program has no "real and immediate affect" upon Petitioner's rights with regard to his termination.

    
    

12. Petitioner having failed to establish that he is "substantially affected" Sufficiently to allow him to maintain a challenge to Respondent's Merit Review Program, the relief sought by Petitioner should be, and the same is hereby denied, and the Petition dismissed.

DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

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 13th day of March, 1984

COPIES FURNISHED:

Raymond A. Rea, Esquire Post Office Box 251

Boynton Beach, Florida 33425

Victoria Tschinkel, Secretary Departrent of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Stanley J. Niego, Esquire Post Office Box V

West Palm Beach, Florida 33402-4238

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building District Tallahassee, Florida 32301

John R. Maloy, Executive Director South Water Management District Post Office Drawer V

West Palm Beach, Florida 33402

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Room 1802 The Capitol Tallahassee, Florida 32301

Docket for Case No: 83-002416RX

Orders for Case No: 83-002416RX