STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARNEST O. BARKLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5276RU

)

STATE OF FLORIDA, ) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

FINAL ORDER

Final hearing in this proceeding was held on December 21, 1987, in Tallahassee, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Robert Woolfork, Esquire

The Murphy House

317 East Park Avenue Tallahassee, Florida 32301

For Respondent: Dan Turnbull, Esquire

Department of Labor and Employment Security

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-2152

BACKGROUND AND PROCEDURAL MATTERS

On November 25, 1987, Earnest O. Barkley (Barkley) filed his petition for administrative determination of the invalidity of an alleged rule of the State of Florida Department of Labor and Employment Security (DLES). The cause was set for hearing within the thirty-day requirement of Section 120.56(2), F.S.

On December 18, 1987, DLES filed a Motion to Dismiss, Barkley filed a Memorandum of Law, and both parties filed a joint stipulation. At the commencement of the hearing on December 21st, Barkley presented a Motion for Leave to Amend his petition and an amended petition.

At the hearing, and prior to the taking of testimony, the parties presented thorough argument on the pending motions. The motion for leave to amend was granted. The amended petition merely inserts the word "indirectly" in paragraph 2.c., alleging that DLES relied on the contested provision of the LES Personnel Manual in terminating Barkley.

The motion to dismiss for lack of requisite standing was taken under advisement and is addressed in this Order.

Petitioner, Barkley, testified in his own behalf and presented no other witnesses nor exhibits. DLES presented two witnesses, its Personnel Officer and its Deputy Secretary for Operations. DLES Exhibit #1, a "Forward" to the LES Personnel Manual, was received without objection. The parties stipulated to Joint Exhibit #1, the portion of the manual at issue in this proceeding. In addition, the parties in their joint stipulation provided for the submission of the October 13, 1987, letter of termination, attached as Exhibit A to DLES' Motion to Dismiss.

No transcript was filed, and the parties waived submission of post-hearing briefs or proposed orders.

ISSUE

Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records."

The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard.

If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.

FINDINGS OF FACT

1. Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987.

   
   

2. At the time of his separation he worked as a Statistician I, a position within the Florida career service system.

   
   

3. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases.

   
   

4. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows:

   
   

   FOREWARD

   
   

   The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee

   benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1)

   
   

   The Forward is signed by former DLES Secretary, Wallace E. Orr.

   
   

5. The preamble to Section 15 provides as follows:

   
   

   15. Standards for Disciplinary Action

   
   

   Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances.

   * * *

   (Joint Exhibit #1)

   
   

6. According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble.

   
   

   The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances.

   
   

   The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action.

   
   

7. The text of the section at issue reveals a wide range of discretion:

   1. Falsification of Records Includes misrepresentation,

      falsification or omission of any fact,

      whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment

      status, employment application, travel vouchers, and work and production.

      
      

      1. First occurrence Written reprimand

         to dismissal

      2. Second occurrence 3-day suspension

         to dismissal

      3. Third occurrence Dismissal

      
      

      (Joint Exhibit #1) CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S.

   
   

9. Subsection 120.56(1) F.S. provides:

   
   

   (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

10. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers,

    functions, and duties delegated by the

    Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54;

    * * * Subsection 120.52(8)(a) F.S. (1987)

    
    

11. The threshold question, therefore, is whether the LES disciplinary standard is a rule.

12. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... 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.

    * * *

    
    

13. Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd

    569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition:

    
    

    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, [citation omitted] 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.

    Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan,

    338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977).

    
    

14. Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981.

    
    

15. In Department of Highway Safety v. Fla. Police Benevolent Association,

    400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303.

    
    

16. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification.

    
    

17. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law.

    
    

18. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section

110.227 F.S., governing dismissals of career service employees for cause.

19. Section 110.227(1) F.S. (1986) provides:

110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers.

1. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances.

1. Rule 22A-7.010(7) F.A.C. provides in pertinent part:

   
   

   1. Dismissals.

      1. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service.

      2. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude.

   
   

2. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions.

   
   

3. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive

   examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal.

   
   

4. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982).

   
   

5. Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S.

   
   

6. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual.

Based on the foregoing, it is hereby, ORDERED:

That the Petition of Earnest O. Barkley, Jr. be DISMISSED.

DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987.

COPIES FURNISHED:

Robert Woolfork, Esquire The Murphy House

317 East Park Avenue Tallahassee, Florida 32301

Dan Turnbull, Esquire Department of Labor and

Employment Security

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-2152

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Donna Poole, Esquire General Counsel

131 Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-2152

Liz Cloud, Chief

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

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-005276RU

Orders for Case No: 87-005276RU