STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNIE D. PHILLIPS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3359

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Stephen F. Dean, held a formal hearing in the above- styled case on June 19, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donnie D. Phillips

P. O. Box 127

Telogia, Florida 32360

For Respondent: Vernon L. Whittier, Esquire

Department of Transportation Haydon Burns Building - MS-58 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

Whether the Petitioner is a "state or local officer or employee" as that term is defined in 5 U.S.C.A. Section 1501(4), and thereby prohibited from being a candidate for an elective office in any partisan election by 5 U.S.C.A. Section 1502(a) (3) and Rule 22A-13-002(5), Florida Administrative Code?

PRELIMINARY STATEMENT

By letter addressed to the District Personnel Officer, District 3, Florida Department of Transportation (DOT), the Petitioner sought permission to become a candidate in the upcoming election for the office of School Board for Liberty County, Florida. This request was forwarded to David S. Ferguson, Personnel Officer of DOT, by W. E. Waddell, District Secretary, recommending approval of the request. Mr. Ferguson forwarded the request to Mr. Watts, Secretary, DOT, with a recommendation of disapproval based upon the opinion of the Department's General Counsel that all DOT employees were covered by the Hatch Act. The Secretary disapproved the request, and the Petitioner was notified of such disapproval by letter from David Ferguson dated May 8, 1990, which also advised Petitioner of his right to a Section 120.57(1), Florida Statutes, hearing pursuant Rule 22A-13A.0032(1), Florida Administrative Code. Petitioner requested a hearing and this proceeding ensued.

At the hearing, Petitioner testified in his own behalf; and Petitioner's exhibits 1, 2 and 3 were received into evidence. Respondent presented the testimony of David Ferguson; and Respondent's exhibits 1 and 2 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on July 2, 1990. The DOT timely submitted a Proposed Findings of Fact and Conclusions of Law, and the Petitioner submitted a letter outlining his position. Each was read and considered. Appendix A to the Recommended Order states specifically which proposals were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner is employed by the Florida Department of Transportation (DOT) as an Engineer I in the Tallahassee Maintenance Facility for District 3. District 3 covers Leon, Gadsden, Jefferson, Liberty, Franklin, and Wakulla Counties. The Petitioner reviews, revises, and approves plans for use of the Department's right-of-way, and issues permits to use the DOT right-of-way. This function involves the right-of- way for all state highways to include federal aid primary roads; however, this is a maintenance function upon which no federal funds are expended.

   
   

2. DOT is a "state or local agency" as defined in 5 U.S.C.A., Section 1501(2), whose work is "financed in whole or in part by loans or grants made by the United States or Federal agency."

   
   

3. The Petitioner has been assigned only to work on projects that are 100% state funded. The Petitioner's salary is paid totally from state funds. However, there is no restriction or prohibition to Petitioner being assigned to new duties involving federally-funded projects. 3/

   
   

4. Although Petitioner is employed by DOT, his principal employment is not "in connection with an activity financed in whole or in part by loans or grants made by the United States or Federal agency." He is not a "state or local officer or employee" as defined in 5 U.S.C.A., Section 1501(4). Additionally, Petitioner "exercises no function in connection with" the federally-funded activity carried on by DOT.

   
   

5. By letter dated April 16, 1990 to Billy Miles, Personnel Manager, District 3, the Petitioner requested permission to be a candidate for the Office of School Board, Liberty County, Florida, a local public office, in the upcoming election for 1990.

   
   

6. Election to the Office of School Board is a partisan election.

   
   

7. Four years ago, in 1985, the Petitioner requested and received permission from the Secretary of the Department to run for the same office. See Petitioner's Composite Exhibit 2, Letter from Lambert to Ferguson, dated June 14, 1985.

   
   

8. Petitioner requested approval to run again for the same office and the request was denied on the basis that the Secretary of the Department, on advice of legal counsel, had determined that all DOT employees hold positions which are covered by the Hatch Act. See Petitioner's Composite Exhibit 2, Letter from Ferguson to Phillips, dated June 14, 1990.

9. The deadline for qualifying for the office which Petitioner seeks is 12:00 noon on July 20, 1990. Section 99.061, 100.031 and 100.061, Florida Statutes. Therefore, Petitioner's request was timely under Rule 22A-13.031(1), Florida Administrative Code, since it was over 90 plus days before the deadline for qualifying on July 20, 1990.

   
   

10. Petitioner's request was forwarded by Mr. Waddell to David Ferguson, by memorandum dated April 30, 1990, with a recommendation for approval.

    
    

11. On May 30, 1990, David Ferguson forwarded Petitioner's request to Secretary Watts, with a recommendation of disapproval based solely on the opinion of the General Counsel that all employees, without exception, were prohibited from becoming a candidate in a partisan election by the Hatch Act.

    
    

12. By letter dated May 8, 1990, David Ferguson advised Petitioner of Secretary Watts' decision to disapprove his request on the basis that all DOT employees are subject to the Hatch Act. On May 14, 1990, the Petitioner requested a formal hearing, and on May 24, 1990, the DOT forwarded the matter to the Division of Administrative Hearings.

    
    

13. It was determined by Petitioner's intermediate supervisor that there is no School Board interest or activity which conflicts or interferes with Petitioner's employment with DOT. The basis for denying the Petitioner's application was not conflict of interest. There was no evidence that there was any conflict of interest.

    
    

14. There was no evidence presented by DOT that Petitioner's position was one funded by Federal funds or grants.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes (1989).

    
    

16. An employee of the State of Florida must obtain prior approval to qualify as a candidate for or to hold a public office, Section 110.233(4)(a), Florida Statutes, and Rule 22A- 13.002, Florida Administrative Code. Failure to obtain prior approval makes the employee "ineligible for continued state employment" and considered to have resigned his position without the right of appeal to the Public Employee Relations Commission and subject to other penalties set out under Section 110.127, Florida Statutes, Rule 22A-13.004, Florida Administrative Code

    
    

17. Rule 22A-13.001(5), Florida Administrative Code, provides that state employees "whose positions are subject to the Federal Hatch Act may not become candidates in any partisan election." This rule further provides that each "agency head shall determine which of the agency's employees are subject to the Act".

    
    

18. Rule 22A-13.003(2), Florida Administrative Code, provides that state employees "filling certain positions receiving Federal funds are also subject to the provisions of the Federal Hatch Act regarding political activity." It further provides that the employing agency shall determine the applicability of the Hatch Act to its employees.

19. It is clear from the language of the statutes and rules quoted above that, although an agency may receive federal funds, there may be positions that are not covered by the Federal Hatch Act. Other than the opinion of the General Counsel, which is contrary to DOT's earlier position, there was no basis for asserting that all DOT employees were subject to the Federal Hatch Act.

    
    

20. "State or local agency" is defined by 5 U.S.C.A., 1501(2), to mean the "executive branch of a State, municipality, or other political subdivision of the State, or an agency or department thereof." DOT comes within this definition and receives federal funds.

    
    

21. Pursuant to 5 U.S.C.A. Section 1502(a)(3), anyone meeting the definition of a "state or local officer or employee" is prohibited from being a candidate for election office. In pertinent part, 5 U.S.C.A. Section 1501(4) defines a "state or local officer or employee" to mean "an individual employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or part by loans or grants made by the United States or a Federal agency." (Emphasis Supplied) However, "an individual who exercises no function in connection with that activity" is excluded. (Emphasis Supplied)

    
    

22. The federal law uses the present tense, not the future, to define the activity which would be preclusive. The fact that the employee may be assigned such duties at sometime is not sufficient to place one within the ambit of the act.

    
    

23. Pursuant to Rule 22A-13.0032(3), Florida Administrative Code, the employee has the "burden of establishing that his/her candidacy or the duties of the local public office will not involve a conflict of interest or interfere with his/her state employment. There is no real issue regarding conflicts of interest. The Petitioner's intermediate supervisor did not find any conflicts and recommended approval. The issue is whether the Petitioner works in an activity financed in whole or in part by federal funds or grants. The evidence presented indicates that the Petitioner is not so employed, and is not subject to the provisions of the Hatch Act. The Petitioner has met his burden, and the DOT has presented no evidence to show that he is engaged in such an activity.

    
    

24. This order was rendered as quickly as possible after receipt of the transcript ordered by the Department and receipt of its proposed findings. It is hoped that the Secretary will expedite his consideration of the Recommended Order to provide an answer prior to the July 20, 1990 deadline.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Respondent, Florida Department of Transportation, enter a Final Order finding that the Petitioner is excluded from the provision of the Federal Hatch Act and approve his request to become a candidate for the Office of School Board of Liberty County.

DONE AND ENTERED this 11th day of July, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearing this

11th day of July, 1990.

ENDNOTES

1/ The Petitioner indicated he would not accept such a reassignment if it were offered, and doubted that such a reassignment would occur.

APPENDIX TO THE RECOMMENDED ORDER IN CASE No. 90-3359

The Petitioner submitted a letter which was read and treated as argument. The following Proposed Findings of Fact submitted by the DOT were adopted or rejected for the reason indicated:

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Paragraph 1 Adopted.

Paragraph 2 Adopted except the last sentence which is irrelevant.

COPIES FURNISHED:

Donnie D. Phillips

P. O. Box 127

Telogia, Florida 32360

Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building - MS-58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 90-003359

Orders for Case No: 90-003359