STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. NELSON BEDENBAUGH, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 90-3450

   ) DEPARTMENT OF TRANSPORTATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Adininistrative Hearings, by its duly designated Hearing Officer, Williain R. Cave, held a formal hearing in the above-styled case on June 20, 1990, in Lake City, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: A. Nelson Bedenbaugh, Pro Se

   Route 6, Box 507

   Lake City, Florida 32055

   
   

   For Respondent: Vernon L. Whittier, Esquire

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

   Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

   1. 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 by 5

      U.S.C.A. Section 1502(a)(3) and Rule 22A-13-002(5), Florida Administrative Code, from being a candidate for an elective office in any partisan election?

      
      

   2. Whether the Petitioner's request was timely in accordance with Rule 22- 13.0031(1), Florida Administrative Code, and, if so, did the Respondent timely process Petitioner's request in accordance with Rule 22-13.0031(2), Florida Administrative Code?

PRELIMINARY STATEMENT

By letter addressed to W. W. Miller, District Secretary, District 2, Florida Department of Transportation (DOT), the Petitioner sought permission to become a candidate in the upcoming election for the office of County Commissioner, District Four, Columbia County, Florida. This request was forwarded to David S. Ferguson, Personnel Officer, DOT by Mr. Miller, recommending approval of the request. After conferring with DOT's Interim General Counsel, Mr. Ferguson forwarded the request to Mr. Watts, Secretary, DOT, with a recommendation of disapproval. The Secretary disapproved the

request and, the Petitioner was notified of such disapproval by letter from David Ferguson dated May 2, 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 presented the testimony of Milo Miles. Petitioner's exhibits 1 and 3 were received into evidence. Petitioner's exhibit 2 was rejected as not being relevant to this proceeding. Respondent presented the testimony of James W. Whitehead and Ralph Green. Respondent's exhibits 1 and 2 were received into evidence.

A transciript of this proceeding was filed with the Division of Administrative Hearings on June 29, 1990. The parties timely submitted their Proposed Findings of Fact and Conclusions of Law. A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Petitioner is employed by the Florida Department of Transportation (DOT) as an Engineer III in the Consultant Project Management Department in District II, Lake City, Columbia County, Florida. This department manages consultant design projects.

   
   

2. DOT is a "state or local agency" as that term is 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. Since being employed by DOT in December, 1987, the Petitioner has only been assigned to work on projects that are 100% state funded. The Petitioner's salary is 1paid totally from state funds. However, there is no restriction or prohibition to Petitioner being assigned, at any time, to federally funded projects.

   
   

4. All of the projects to which Petitioner has been assigned are being prepared to federal specifications but are still in the design phase and are programmed in later years for construction. If constructed, these projects may be federally funded. However, there was no evidence that DOT would be reimbursed by federal funds for the cost of designing those projects, including Petitioner's salary.

   
   

5. 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" and, thereby is not a "state or local officer or employee" as that term is 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.

   
   

6. By letter dated March 20, 1990 to W. W. Miller, District Secretary, District 2; the Petitioner requested permission to be a candidate for the office of County Commissioner, Columbia County, Florida, a local public office, in the upcoming election for 1990.

7. In order to seek the office of County Commissioner, Petitioner would be a candidate in a partisan election.

   
   

8. Although the Petitioner does not remember the exact date he hand delivered his request, it can be assumed that it was before Mr. Miller's Memorandum to David Ferguson, of April 6, 1990.

   
   

9. The deadline for qualifying for the office of County Commissioner 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 some 109 plus days before the deadline for qualifying on July 20, 1990.

   
   

10. Petitioner's request was forwarded by Mr. Miller to David Ferguson, by memorandum dated April 6, 1990, with a recommendation for approval, indicating that Mr. Miller found no conflict.

    
    

11. On April 20, 1990 David Ferguson forwarded Petitioner's request to Secretary Watts, with a recommendation of disapproval based solely on a legal opinion of March 2, 1988 by Thomas H. Bateman, III, a previous General Counsel for DOT, and concurred in by Robert I. Scanlan, the Interim General Counsel which opined that all employees, without exception, were prohibited from becoming a candidate in a partisan election based on 5 U.S.C.A. Section 1501 and 1502(a)(3). Secretary Watts without any further determination as to which of DOT's employees were subject to the Federal Hatch Act as required under Rule 22A-13.002(5), Florida Administrative Code, disapproved Petitioner's request.

    
    

12. By letter dated May 2, 1990 and received May 3, 1990, David Ferguson advised Petitioner of Secretary Watts's decision to disapprove his request.

    
    

13. Some 27 plus days expired between Mr. Miller's memorandum to Mr. Ferguson and Petitioner being advised of Secretary Watts' disapproval. Additionally, 13 days expired between Mr. Miller's memorandum and Ferguson's memorandum to Secretary Watts. DOT was not timely with its response under Rule 22A-13.0031(2), Florida Administrative Code.

    
    

14. Before Mr. Bateman's opinion in 1988 on at least one occasion (1986), DOT allowed an employee to become a candidate for the office of County Commissioner, Columbia County, Florida and, determined that this employer was not prohibited from becoming a candidate in a partisan election by the Federal Hatch Act.

    
    

15. The Respondent has stipulated that the office of County Commissioner of Columbia County, Florida involves no interest which conflicts with or activity which interferes with Petitioner's employment with DOT as set out in Rule 22A-13.002 (2)(3)(4), Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

16. 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).

    
    

17. 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.

    
    

18. Rule 22A-13.001(5), Florida Acdministrative Code, provides that state employees "whose positions are subject to theFederal 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".

    
    

19. 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.

    
    

20. It is clear from the language of the above-quoted rules that even though an agency may receive federal funds there may be positions that are not covered by the Federal Hatch Act. Other than Mr. Bateman's opinion in March, 1988, which is contrary to DOT's earlier position, there was no effort on the part of DOT to make a meaningful determination as to which of its employees were subject to the Federal Hatch Act.

    
    

21. "State of 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 in accordance with 23 U.S.C.A. Section 103 and 104.

    
    

22. 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". However, "an individual who exercises no function in connection with that activity" is excluded.

    
    

23. Pursuant to 5 U.S.C.A. Section 1502(a)(3), anyone meeting the definition of a "state or local office or employee" defined above is prohibited from being a candidate for election office. However, 5 U.S.C.A. Section 1503 excludes nonpartisan elections from that prohibition.

    
    

24. 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 or interest or interfere with his/her state employment". The Petitioner has met that burden.

    
    

25. While Rule 22A-13.0031, F1orida Administrative Code, sets out certain deadlines for the employee, the agency and the Department of Administration to follow, there does not appear to be penalties if the agencies for failure to follow those deadlines. While in this instance the failure of DOT to adhere to the deadline does not appear to have affected Petitioner's rights, it could and may still affect his rights. Therefore, DOT should be more cognizant of its deadline in this regard.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, 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 County Commissioner of Columbia County.

DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 6th day of July, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3450

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Findings of Fact 1, 3 and 4, respectively.

2. Adopted in Findings of Fact 6.

3. Adopted in Findings of Fact 10.

4. Adopted in Findings of Fact 11.

5. Adopted in Findings of Fact 11.

6. Adopted in Findings of Fact 12.

7. Adopted in Findings of Fact 14.

8. Adopted in Findings of Fact 11.

9. Rejected as being a Conclusion of Law rather than a Finding of Fact.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Findings of Fact 1, 3, and 4.

2-3. Adopted in Findings of Fact 6, 8, 10, 11, and 12.

COPIES FURNISHED:

A. Nelson Bedenbaugh, Pro Se Route 6, Box 507

Lake City, Florida 32055

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 Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 90-003450

Orders for Case No: 90-003450