STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILLIP M. WHISLER, )
)
Petitioner, )
)
vs. ) CASE NO. 96-2614RU
) DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
____________________________)
FINAL ORDER
Upon due notice, this cause came on for formal hearing on July 3, 1996, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Ella Jane P. Davis.
APPEARANCES
For Petitioner: R. Mitchell Prugh, Esquire
Middleton and Prugh, P.A.
303 State Road 26 Melrose, Florida 32666
For Respondent: Edwin A. Bayo
Assistant Attorney General Plaza Level 01, The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
Does the Department of Correction's Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute unpromulgated rules, pursuant to Section 120.535 F.S.?
Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C., invalid exercises of delegated legislative authority due to vagueness, pursuant to Section
120.56 F.S.?
PRELIMINARY STATEMENT
On May 27, 1996, Petitioner, a career-service employee with the Department of Corrections (DOC), filed a Petition for Administrative
Determination, pursuant to Sections 120.535 and 120.56, F.S., with two attached exhibits. Exhibit A is the Department's Pamphlet "Sexual Harassment, Your Rights and Responsibilities"; Exhibit B is Chapter 7 of the Department's Personnel Procedures Manual, Subject: Sexual Harassment Complaints. Petitioner alleged that the agency's Sexual Harassment Policy contained in these documents was an unpromulgated rule and that existing Rules 33-4.001(4)(a), 33-4.002(4), 33- 4.003(23), and 33-4.003(25), F.A.C., were invalid for vagueness.
Rules 33-4.003(23) and 33-4.003(25) were renumbered after the filing of the Petition and became Rules 4.003(22) and 33-4.003(24),
F.A.C. At formal hearing, the parties stipulated that the vagueness challenge within Rule 33-4.003 was limited to the newly renumbered Rules 33-4.003(22) and 33-4.003(24), F.A.C.
Evidence was also presented, without objection, as to whether a one-page policy statement against sexual harassment (P-5) also constitutes an unpromulgated rule. Where an issue is tried by consent, it may be treated as though raised in the pleadings, so that issue also has been considered here. See Rule 1.190(b), Fla. R. Civ.
P. and Department of Revenue v. Vanjaria Enterprises, 21 FLW D1447 (July 21, 1996 5th DCA), and cases cited therein.
At formal hearing, the agency moved to dismiss the Petition for lack of standing by Petitioner; ruling thereon was reserved for incorporation in this Final Order.
Upon Petitioner's motion, three Public Employee Relations Commission (PERC) Final Orders were officially recognized. These were: Thomas v. Department of Corrections, 10 FCSR Para. 160 (PERC 1995); Massey v. Department of Corrections, 10 FCSR Para. 119 (PERC 1995); and Abilama v. Department of Corrections, 9 FCSR Para. 161 (PERC 1994).
Petitioner testified on his own behalf and had six exhibits admitted in evidence.
A current copy of existing Rules 33-4.001, 33-4.002 and 33-4.003, F.A.C., was submitted as a Joint Exhibit.
The agency presented no testimony or exhibits.
At the request of the parties, the time for filing proposed final orders was set at ten days after formal hearing. A transcript was filed on August 7, 1996, thereby permitting entry of a final order by September 6, 1996.
At formal hearing and by the instructional post-hearing order, the undersigned inadvertently referred to a "recommended order." Both parties inadvertently styled their post-hearing proposals as "proposed recommended orders," but each has been treated as a "proposed final order," since the undersigned has Final Order authority in the instant
rule challenge case. Each proposed finding has been ruled upon in the Appendix to this Final Order, pursuant to Section 120.59(2), F.S.
FINDINGS OF FACT
At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology.
At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules.
On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities".
Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is:
Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly
. . . commit any act or engage in any conduct which would violate any state
statute, rule, directive or policy statement.'
Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole,
probation or otherwise under his supervision, inmates and the general public.'
Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal.
Florida Administrative Code Rule 33-4.003(25) states that a first offense
of willful violation of rules, regulations,
directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal.
The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows:
Sexual Harassment requires two elements:
The alleged conduct must be of a
sexual nature, must be unwelcome and unwanted.
Sexual harassment may be any of, but not limited to, the following:
* * *
continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome;
* * *
prolonged staring or leering to [sic] a person;
* * *
32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows:
* * *
O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when:
Submission to such conduct is either
explicitly or implicitly a term or condition of employment; or
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows:
Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty
jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal.
* * *
The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford
v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed.
PERC's recommended order also applied the foregoing provisions.
At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte.
Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding.
DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined.
Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules".
Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part:
Responsibility for Conduct of Employees, Inmates and Others.
No Administrator, Superintendent,
Officer-In-Charge, Supervisor, or other
employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or
policy statement . . . .
Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates.
Rule 33-4.002(4), F.A.C., provides in pertinent part:
(4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . .
Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule.
The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment.
The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department).
The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency:
Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when:
Submission to such conduct is made either explicitly or implicitly a term or condition
of a person's employment, or
Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or
Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment.
The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency.
Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides,
If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules.
Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C.
Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee.
Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming".
Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment.
However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment
against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C.
He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act.
The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy.
Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra.
Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Sections
120.535 and 120.56, F.S.
Petitioner seeks an order determining that the existing rules are invalid due to vagueness, pursuant to Section 120.56, F.S., and that the Policy Statement, Pamphlet, and Chapter 7 of the Manual are invalid under Section 120.535, F.S.
DOC argued that Petitioner has not demonstrated standing. Petitioner's substantial interests, as plead in his petition, are from "being suspended without pay based upon erroneous evidence and actions contained in respondent's public files", and the agency asserted that Petitioner cannot demonstrate that the challenged statements and rules are causing "continuing, present adverse effects" on him. The agency conceded that if Petitioner had challenged these rules prior to his PERC hearing, he would have standing to have these statements and rules declared invalid, in which case, the agency could not have relied on them, but the agency further contended that Petitioner's only present interest in challenging these policy statements and rules is speculative and hypothetical (i.e., if in the future he faced the same situation). Since Petitioner prays for "an order determining that Petitioner's suspension without pay was based on an unpromulgated rule contrary to Section 120.535(1), Florida Statutes, and in addition or alternatively, was based on an invalid rule contrary to Section 120.52(8), 120.56, Florida Statutes", the agency claimed that
Petitioner is asking the Division of Administrative Hearings to rule on the legal grounds upon which PERC has already ruled in his disciplinary case. The agency's argument is rejected. Until PERC entered its final order, there was always the possibility of a change in the result of Petitioner's PERC hearing. See, Board of Medicine v. Mata, 561 So. 2d 364 (Fla. 1st DCA 1990). Although PERC's final order now arrives at the appellate court with a presumption of correctness and remains in full force and effect unless overturned, Petitioner's collateral attack here could still affect the ultimate outcome of that decision. Regardless thereof, a minor line of case law suggests that standing exists where continuing injury is shown and here, Petitioner remains subject to increased discipline based on categorization of offense. The Motion to Dismiss upon "lack of standing" is denied. However, Petitioner's challenge fails as a matter of law.
Section 120.52(16), F.S., defines "rule", in pertinent part, as follows:
'Rule' means each agency statement of general applicability that implement, inter- prets, 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 an existing rule. The term does not include:
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 agency's Sexual Harassment Policy, the Pamphlet, and Chapter 7 of its Personnel Procedures Manual are not "rules", as that term is defined by Section 120.52(16), F.S. They are not agency statements of general applicability because they apply only within the agency and only to the public employees of that agency and because they are not self-executing. See, Lawrence v. D.H.R.S., DOAH Case No. 95-5585RU (Final Order of Claude B. Arrington entered March 4, 1996).
Petitioner's reliance on the final order in Florida Police Benevolent Association and McGowan v. Department of Highway Safety and Motor Vehicles, DOAH Case No. 78-1680R (November 8, 1978), is misplaced. That case, which closely parallels the facts herein, was overruled in Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, et al., 400 So.2d 1302 (Fla. 1st DCA 1981) pet. rev. den. sub. nom. Florida Police Benevolent Association, et al. v. Department of Highway Safety and Motor Vehicles, 408 So.2d 1093 (Fla. 1981). The First District Court of Appeal determined therein that a general order of the State Highway
Patrol prescribing standards of physical fitness for patrolmen and prescribing guidelines for supervisors in assessing discipline for deficiencies in conduct of patrolmen were effective in themselves only as guidelines, subject in application to discretion of the enforcing officer, and qualified for the "internal management memoranda" exemption from formal rule-making requirements.
The publications challenged herein do not qualify as "rules" under the statutory definition because they apply only within the agency and only to public employees of the agency. Compare, Allen v. Department of Health and Rehabilitative Services, 10 FALR 2091 (1992). Furthermore, the challenged publications are not self-executing. They do not, in and of themselves, serve to create or adversely affect rights, and they do not have the direct and consistent effect of law. See, Barkley v. Department of Labor and Employment Security, 10 FALR 5273 (1987); Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981), supra.; and Hill v. Leon County School Board of Public Instruction, 351 So.2d 732 (Fla. 1st DCA 1977) cert. den. 359 So.2d 1215 (Fla. 1978). While the PERC hearing officer's determination that the charge of "unbecoming a public employee" is "subsumed" by the charge of sexual harassment gives concern, as that term was used in the PERC recommended order, it merely means Petitioner could not be disciplined twice for the same activities.
Because the Policy, Pamphlet, and Chapter 7 of the Manual are not rules, Respondent is not required by Section 120.535 F.S. to enact them as rules.
One further comment may be in order. The Pamphlet states the same broad policy as the one page policy statement. It then attempts to give "included but not limited to" types of examples of sexual harassment as an aid to educating employees and modifying employee behavior, much as did the seminars and films which Petitioner was required to attend. It is neither feasible nor prudent for an agency to attempt to cover every possible variable of human behavior with all its nuances in a rule of general application. The Manual explains simply the guidelines and procedures the agency has established pursuant to federal Title VII and Chapter 760, F.S., for finding, reporting, and investigating internal complaints of sexual harassment within the agency. Not a rule itself, it makes the clear statement that any discipline after a finding of probable cause must be in accord with existing rules under Chapter 33-4 F.A.C.
Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part:
Responsibility for Conduct of Employees, Inmates and Others:
No Administrator, Superintendent, Officer in Charge, Supervisor, or [other employee shall knowingly permit] any sub- ordinate, inmate or other person to, [nor shall he commit] any act or engage in any
conduct which would violate any state statute, rule, directive or policy statement
. . . [emphasis supplied].
Petitioner's charge of vagueness based upon his not believing that this rule applied to him because he is not an administrator, superintendent, officer-in-charge, or supervisor is disingenuous. On its face, a clear reading of the rule (see emphasized portion), applies it to all agency employees.
Moreover, Petitioner's Section 120.56, F.S., challenge to existing Rules 33-4.001(4)(a), 33-4.002(4) and 33-4.003(22) and (24) upon vagueness grounds, must similarly fail as a matter of law.
The general test for vagueness of a rule is whether persons of common intelligence are required to guess at the rule's meaning and could differ as to the rule's interpretation. The test is more lenient where an administrative rule, rather than a penal one, is being examined. See, Florida East Coast Industries, Inc. v. State of Florida, Department of Community Affairs, 21 FLW D1532 (Fla. 1st DCA July 2, 1996). In determining whether an administrative personnel rule is unconstitutionally vague or overbroad, Florida courts generally uphold such rules where persons of common intelligence are not required to guess at the rules' meaning and where the employee subject to discipline was properly appraised that his conduct was proscribed by the rule. See, City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982). It is concluded that a person of common intelligence could read each of these existing rules and understand them.
In light of the clear language of Section 110.227, F.S., and the statutory prohibitions contained in Chapter 760, F.S., there is no doubt that these rules are not impermissibly vague.
Moreover, very similar rules have likewise been upheld. A rule prohibiting "improper conduct . . . either on or off the job, which would tend to affect the employee's relationship to his job, his fellow workers, his reputation, or good will in the community" was upheld against a "void for a vagueness" challenge in City of St. Petersburg v. Pinellas County Police Benevolent Association, supra. Also, the terms "conduct unbecoming a police officer", Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3d DCA 1974), as well as "conduct below the standard which can reasonably be expected for the position held", Richter v. City of Tallahassee, 361 So.2d 205 (Fla. 1st DCA 1978), have been upheld against "void for vagueness" challenges.
Other cases have determined that applying the test of "conduct unbecoming" to individual acts is a legal test to which facts either conform or do not conform. This concept addresses the situation here, which integrates the respective relationships between
(1) the agency's Policy and Pamphlet against sexual harassment, (2) its attempts to explain and eliminate sexual harassment by exemplary seminars, and (3) its internal sexual harassment complaint procedure
in Chapter 7 of the Personnel Manual, with its Chapter 33-4, F.A.C., disciplinary procedure and concept of disciplinary violations. Under such an analysis, the explanations in the DOC Policy, Pamphlet, and Manual do not alter or supplement any existing statutes or rules. At most, they merely explain or clarify them.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Existing Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22)
and (24), F.A.C., constitute a valid exercise of delegated legislative authority.
The Policy, Pamphlet and Chapter 7 of the Manual are not unadopted rules.
The Petition is dismissed.
DONE AND ORDERED this 27th day of August, 1996, in Tallahassee, Leon County, Florida.
___________________________________ ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996.
APPENDIX TO FINAL ORDER
The following constitute specific rulings, pursuant to Section 120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).
Petitioner's Proposed Findings of Fact
1-25 Accepted, except that unnecessary, subordinate and/or cumulative material and mere legal argument has not been adopted. 26-28 Rejected as proposed conclusions of law, or if facts,
rejected for the reasons given in the Conclusions of Law.
29-37 Accepted, except that unnecessary, subordinate and/or cumulative material and mere legal argument has not been adopted.
Respondent's Proposed Findings of Fact 1-13 Accepted.
Accepted as modified to more closely approximate the record.
Accepted.
COPIES FURNISHED:
R. Mitchell Prugh, Esquire Middleton & Prugh, P.A.
303 State Road 26 Tallahassee, FL 32666
Edward Bayo, Esquire Attorney General's Office The Capitol, Plaza Level Tallahassee, FL 32399-1050
Harry K. Singletary, Jr., Secretary Department of Corrections
2601 Blairstone Road
Tallahassee, FL 32399-2500
Louis A. Vargas, General Counsel Department of Corrections
2601 Blairstone Road
Tallahassee, FL 32399-2500
Carroll Webb, Executive Director Administrative Procedures Committee Holland Buildng, Room 120 Tallahassee, FL 32399-1300
NOTICE OF RIGHT TO APPEAL
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 the 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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS PHILLIP M. WHISLER, )
)
Petitioner, )
)
vs. ) CASE NO. 96-2614RU
) DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
____________________________)
CORRECTED FINAL ORDER
This cause came on for consideration upon telephoned advices that as of October 4, 1996, no party had received a copy of the Final Order entered herein on August 27, 1996. A review of procedures in the office of the undersigned has failed to explain why the Final Order was not received by both parties.
However, the Rules of the Division provide,
That the intent of the administrative process is to secure the just, speedy, and inexpensive determination of proceedings in which the substantial interests of a person are affected. See, Rule 60Q-2.008(1) Florida Administrative Code;
That the hearing officer (Administrative Law Judge, as of October 1, 1996) before whom the case is pending may issue any orders necessary to effectuate . . . all aspects of the case. See Rule 60Q-
2.024 Florida Administrative Code; and
That the hearing officer (Administrative Law Judge, as of October 1, 1996) may enter a corrected order at any time sua sponte. See Rule 60Q-2.032 Florida Administrative Code.
Therefore, the following Corrected Order is hereby entered to reflect a change in the date of entry.
Upon due notice, this cause came on for formal hearing on July 3, 1996, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Ella Jane P. Davis.
APPEARANCES
For Petitioner: R. Mitchell Prugh, Esquire
Middleton and Prugh, P.A.
303 State Road 26 Melrose, Florida 32666
For Respondent: Edwin A. Bayo
Assistant Attorney General Plaza Level 01, the Capitol Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUES
Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.?
Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section
120.56 F.S.?
PRELIMINARY STATEMENT
On May 27, 1996, Petitioner, a career-service employee with the Department of Corrections (DOC), filed a Petition for Administrative Determination, pursuant to Sections 120.535 and 120.56, F.S., with two attached exhibits. Exhibit A is the Departgment's Pamphlet "Sexual Harassment, Your Rights and Responsibilities"; Exhibit B is Chapter 7 of the Department's Personnel procedures Manual, Subject: Sexual Harassment Complaints. Petitioner alleged that the agency's Sexual Harassment Policy contained in these documents was an unpromulgated rule and that existing Rules 33-4.001(4)(a), 33-4.002(4), 33-4.003(23, and 33-4.004(25, F.A.C., were invalid for vagueness.
Rules 33-4.003(23 and 33-4.003(25) were renumbered after the filing of the Petition and became Rules 4.003(22) and 33-4.003(24),
F.A.C. At formal hearing, the parties stipulated that the vagueness challenge within Rule 33-4.003 was limited to the newly renumbered rules 33-4.003(22) and 33-4.003(24), F.A.C.
Evidence was also presented, without objection, as to whether a one-page policy statement against sexual harassment (P-5) also constitutes an unpromulgated rule. Where an issue is tried by consent, it may be treated as though raised in the pleadings, so that issue also has been considered here. See Rule 1.190(b), Fla. R. Civ.
and Department of Revenue v. Vanjaria Enterprises, 21 FLW D1447 (July 21, 1996 5th DCA), and cases cited therein.
At formal hearing, the agency moved to dismiss the Petition for lack of standing by Petitioner; ruling thereon was reserved for incorporation in this Final Order.
Upon Petitioner's motion, three Public Employee Relations Commission (PERC) Final Orders were officially recognized. These were: Thomas v. Department of Corrections, 10 FCSR Para. 160 (PERC 1995); Massey v. Department of Corrections, 10 FCSR Para. 119 (PERC 1995); and Abilama v. Department of Corrections, 9 FCSR Para. 161 (PERC 1994).
Petitioner testified on his own behalf and had six exhibits admitted in evidence.
A current copy of existing Rules 33-4.001, 33-4.002 and 33-4.003, F.A.C., was submitted as a Joint Exhibit.
The agency presented no testimony or exhibits.
At the request of the parties, the time for filing proposed final orders was set at ten days after formal hearing. A transcript was filed on August 7, 1996, thereby permitting entry of a final order by September 6, 1996.
At formal hearing and by the instructional post-hearing order, the undersigned inadvertently referred to a "recommended order." Both parties inadvertently styled their post-hearing proposals as "proposed recommended orders," but each has been treated as a "proposed final order," since the undersigned has Final Order authority in the instant rule challenge case. Each proposed finding has been ruled upon in the Appendix to this Final Order, pursuant to Section 120.59(2), F.S.
FINDINGS OF FACT
At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology.
At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules.
On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities".
Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is:
Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly
. . . commit any act or engage in any conduct which would violate any state
statute, rule, directive or policy statement.'
Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole,
probation or otherwise under his supervision, inmates and the general public.'
Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal.
Florida Administrative Code Rule 33-4.003(25) states that a first offense
of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal.
The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows:
Sexual Harassment requires two elements:
The alleged conduct must be of a
sexual nature, must be unwelcome and unwanted.
Sexual harassment may be any of, but not limited to, the following:
* * *
continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome;
* * *
prolonged staring or leering to [sic] a person;
* * *
32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows:
* * *
Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's
business when:
Submission to such conduct is either explicitly or implicitly a term or condition of employment; or
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows:
Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined,
up to and including dismissal.
* * *
The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford
v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed.
PERC's recommended order also applied the foregoing provisions.
At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte.
Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16,
1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding.
DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined.
Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules".
Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part:
Responsibility for Conduct of Employees, Inmates and Others.
No Administrator, Superintendent,
Officer-In-Charge, Supervisor, or other
employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or
policy statement . . . .
Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates.
Rule 33-4.002(4), F.A.C., provides in pertinent part:
(4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . .
Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule.
The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment.
The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department).
The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency:
Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when:
Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or
Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or
Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment.
The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency.
Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides,
If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules.
Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C.
Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee.
Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming".
Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment.
However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C.
He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act.
The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy.
Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra.
Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Sections
120.535 and 120.56, F.S.
Petitioner seeks an order determining that the existing rules are invalid due to vagueness, pursuant to Section 120.56, F.S.,
and that the Policy Statement, Pamphlet, and Chapter 7 of the Manual are invalid under Section 120.535, F.S.
DOC argued that Petitioner has not demonstrated standing. Petitioner's substantial interests, as plead in his petition, are from "being suspended without pay based upon erroneous evidence and actions contained in respondent's public files", and the agency asserted that Petitioner cannot demonstrate that the challenged statements and rules are causing "continuing, present adverse effects" on him. The agency conceded that if Petitioner had challenged these rules prior to his PERC hearing, he would have standing to have these statements and rules declared invalid, in which case, the agency could not have relied on them, but the agency further contended that Petitioner's only present interest in challenging these policy statements and rules is speculative and hypothetical (i.e., if in the future he faced the same situation). Since Petitioner prays for "an order determining that Petitioner's suspension without pay was based on an unpromulgated rule contrary to Section 120.535(1), Florida Statutes, and in addition or alternatively, was based on an invalid rule contrary to Section 120.52(8), 120.56, Florida Statutes", the agency claimed that Petitioner is asking the Division of Administrative Hearings to rule on the legal grounds upon which PERC has already ruled in his disciplinary case. The agency's argument is rejected. Until PERC entered its final order, there was always the possibility of a change in the result of Petitioner's PERC hearing. See, Board of Medicine v. Mata, 561 So. 2d 364 (Fla. 1st DCA 1990). Although PERC's final order now arrives at the appellate court with a presumption of correctness and remains in full force and effect unless overturned, Petitioner's collateral attack here could still affect the ultimate outcome of that decision. Regardless thereof, a minor line of case law suggests that standing exists where continuing injury is shown and here, Petitioner remains subject to increased discipline based on categorization of offense. The Motion to Dismiss upon "lack of standing" is denied. However, Petitioner's challenge fails as a matter of law.
Section 120.52(16), F.S., defines "rule", in pertinent part, as follows:
'Rule' means each agency statement of general applicability that implement, inter- prets, 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 an existing rule. The term does not include:
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 agency's Sexual Harassment Policy, the Pamphlet, and Chapter 7 of its Personnel Procedures Manual are not "rules", as that term is defined by Section 120.52(16), F.S. They are not agency statements of general applicability because they apply only within the agency and only to the public employees of that agency and because they are not self-executing. See, Lawrence v. D.H.R.S., DOAH Case No. 95-5585RU (Final Order of Claude B. Arrington entered March 4, 1996).
Petitioner's reliance on the final order in Florida Police Benevolent Association and McGowan v. Department of Highway Safety and Motor Vehicles, DOAH Case No. 78-1680R (November 8, 1978), is misplaced. That case, which closely parallels the facts herein, was overruled in Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, et al., 400 So.2d 1302 (Fla. 1st DCA 1981) pet. rev. den. sub. nom. Florida Police Benevolent Association, et al. v. Department of Highway Safety and Motor Vehicles, 408 So.2d 1093 (Fla. 1981). The First District Court of Appeal determined therein that a general order of the State Highway Patrol prescribing standards of physical fitness for patrolmen and prescribing guidelines for supervisors in assessing discipline for deficiencies in conduct of patrolmen were effective in themselves only as guidelines, subject in application to discretion of the enforcing officer, and qualified for the "internal management memoranda" exemption from formal rule-making requirements.
The publications challenged herein do not qualify as "rules" under the statutory definition because they apply only within the agency and only to public employees of the agency. Compare, Allen v. Department of Health and Rehabilitative Services, 10 FALR 2091 (1992). Furthermore, the challenged publications are not self-executing. They do not, in and of themselves, serve to create or adversely affect rights, and they do not have the direct and consistent effect of law. See, Barkley v. Department of Labor and Employment Security, 10 FALR 5273 (1987); Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981), supra.; and Hill v. Leon County School Board of Public Instruction, 351 So.2d 732 (Fla. 1st DCA 1977) cert. den. 359 So.2d 1215 (Fla. 1978). While the PERC hearing officer's determination that the charge of "unbecoming a public employee" is "subsumed" by the charge of sexual harassment gives concern, as that term was used in the PERC recommended order, it merely means Petitioner could not be disciplined twice for the same activities.
Because the Policy, Pamphlet, and Chapter 7 of the Manual are not rules, Respondent is not required by Section 120.535 F.S. to enact them as rules.
One further comment may be in order. The Pamphlet states the same broad policy as the one page policy statement. It then attempts to give "included but not limited to" types of examples of sexual harassment as an aid to educating employees and modifying
employee behavior, much as did the seminars and films which Petitioner was required to attend. It is neither feasible nor prudent for an agency to attempt to cover every possible variable of human behavior with all its nuances in a rule of general application. The Manual explains simply the guidelines and procedures the agency has established pursuant to federal Title VII and Chapter 760, F.S., for finding, reporting, and investigating internal complaints of sexual harassment within the agency. Not a rule itself, it makes the clear statement that any discipline after a finding of probable cause must be in accord with existing rules under Chapter 33-4 F.A.C.
Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part:
Responsibility for Conduct of Employees, Inmates and Others:
No Administrator, Superintendent, Officer in Charge, Supervisor, or [other employee shall knowingly permit] any sub- ordinate, inmate or other person to, [nor shall he commit] any act or engage in any conduct which would violate any state statute, rule, directive or policy statement
. . . [emphasis supplied].
Petitioner's charge of vagueness based upon his not believing that this rule applied to him because he is not an administrator, superintendent, officer-in-charge, or supervisor is disingenuous. On its face, a clear reading of the rule (see emphasized portion), applies it to all agency employees.
Moreover, Petitioner's Section 120.56, F.S., challenge to existing Rules 33-4.001(4)(a), 33-4.002(4) and 33-4.003(22) and (24) upon vagueness grounds, must similarly fail as a matter of law.
The general test for vagueness of a rule is whether persons of common intelligence are required to guess at the rule's meaning and could differ as to the rule's interpretation. The test is more lenient where an administrative rule, rather than a penal one, is being examined. See, Florida East Coast Industries, Inc. v. State of Florida, Department of Community Affairs, 21 FLW D1532 (Fla. 1st DCA July 2, 1996). In determining whether an administrative personnel rule is unconstitutionally vague or overbroad, Florida courts generally uphold such rules where persons of common intelligence are not required to guess at the rules' meaning and where the employee subject to discipline was properly appraised that his conduct was proscribed by the rule. See, City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982). It is concluded that a person of common intelligence could read each of these existing rules and understand them.
In light of the clear language of Section 110.227, F.S., and the statutory prohibitions contained in Chapter 760, F.S., there is no doubt that these rules are not impermissibly vague.
Moreover, very similar rules have likewise been upheld. A rule prohibiting "improper conduct . . . either on or off the job, which would tend to affect the employee's relationship to his job, his fellow workers, his reputation, or good will in the community" was upheld against a "void for a vagueness" challenge in City of St. Petersburg v. Pinellas County Police Benevolent Association, supra. Also, the terms "conduct unbecoming a police officer", Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3d DCA 1974), as well as "conduct below the standard which can reasonably be expected for the position held", Richter v. City of Tallahassee, 361 So.2d 205 (Fla. 1st DCA 1978), have been upheld against "void for vagueness" challenges.
Other cases have determined that applying the test of "conduct unbecoming" to individual acts is a legal test to which facts either conform or do not conform. This concept addresses the situation here, which integrates the respective relationships between
(1) the agency's Policy and Pamphlet against sexual harassment, (2) its attempts to explain and eliminate sexual harassment by exemplary seminars, and (3) its internal sexual harassment complaint procedure in Chapter 7 of the Personnel Manual, with its Chapter 33-4, F.A.C., disciplinary procedure and concept of disciplinary violations. Under such an analysis, the explanations in the DOC Policy, Pamphlet, and Manual do not alter or supplement any existing statutes or rules. At most, they merely explain or clarify them.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Existing Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22)
and (24), F.A.C., constitute a valid exercise of delegated legislative authority.
The Policy, Pamphlet and Chapter 7 of the Manual are not unadopted rules.
The Petition is dismissed.
DONE and ORDERED this 9th day of October, 1996, in Tallahassee, Florida.
___________________________________ ELLA JANE P. DAVIS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847 Filed with the Clerk of the
Division of Administrative Hearings this 9th day of October, 1996.
COPIES FURNISHED:
R. Mitchell Prugh, Esquire Middleton & Prugh, P.A.
303 State Road 26 Melrose, Florida 32666
Edward Bayo, Esquire Attorney General's Office The Capitol, Plaza Level
Tallahassee, Florida 32399-1050
Harry K. Singletary, Jr., Secretary Department of Corrections
2601 Blair Stone Road Tallahassee, Florida 32399-2500
Louis A. Vargas, General Counsel Department of Corrections
2601 Blair Stone Road Tallahassee, Florida 32399-2500
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
NOTICE OF RIGHT TO APPEAL
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 the 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.
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PHILLIP M. WHISLER, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
v. CASE NO. 96-3963
DOAH CASE NO. 96-2614
DEPARTMENT OF CORRECTIONS,
Appellee.
_____________________________/ Opinion filed April 30, 1997.
An appeal from order of the Division of Administrative Hearings.
R. Mitchell Prugh of Middleton, Prugh & Anderson, P.A., Melrose, for Appellant.
Robert A. Butterworth, Attorney General, and Edwin A. Bayo, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
BARFIELD, C. J., KAHN and DAVIS, JJ., CONCUR
M A N D A T E
from
DISTRICT COURT OF APPEAL OF FLORIDAA FIRST DISTRICT
To the Honorable Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings
WHEREAS, in that certain cause filed in this Court styled:
PHILLIP M. WHISLER
v. Case No. 96-3963
Lower Tribunal Case No. 96-2614RU
DEPARTMENT OF CORRECTIONS
The attached opinion was issued on April 30, 1997.
YOU ARE HEREBY COMMANDED that further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida.
WITNESS the Honorable Edward T. Barfield, Chief Judge
of the District Court of Appeal of Florida, First District, and the Seal of said Court done at Tallahassee, Florida,
on this 27th day of June, 1997.
(SEAL) ___________________________________________________
JON S. WHEELER, Clerk
District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Jun. 30, 1997 | First DCA Opinion and Mandate (Affirmed) received. |
| Jan. 27, 1997 | Index, Record, Certificate of Record sent out. |
| Dec. 23, 1996 | Corrected Index (to add corrected Recommended Order only) sent out. |
| Dec. 13, 1996 | Payment in the amount of $60.00 for indexing received. |
| Dec. 02, 1996 | Index sent out. |
| Nov. 27, 1996 | Statement of Service Invoice No. ROA97-07 sent out. |
| Oct. 22, 1996 | BY ORDER OF THE COURT (Appellant is directed to file within 10 days conformed copies of the Order for the lower tribunal from which the appeal is being taken) received. |
| Oct. 21, 1996 | Letter to DOAH from DCA received. DCA Case No. 1-96-3963. |
| Oct. 21, 1996 | BY ORDER OF THE COURT (Appellant to either file a certified copy of insolvency or remit a check for $250.00 within 30 days) received. |
| Oct. 17, 1996 | Amended Notice of Administrative Appeal (filed by R. Mitchell Prugh) received. |
| Oct. 11, 1996 | Notice of Administrative Appeal received. |
| Oct. 09, 1996 | Corrected Final Order sent out. |
| Oct. 08, 1996 | Letter to EJD from M. Prugh (Re: Request for Copy of Recommended Order) received. |
| Aug. 27, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 7/3/96. |
| Aug. 23, 1996 | Letter to Hearing Officer from E. Bayo Re: Re-submitting proposed Findings of fact received. |
| Aug. 19, 1996 | Letter to EJD from R. Mitchell Prugh (RE: enclosing copy of pleadings from PERC proceedings, tagged) received. |
| Aug. 12, 1996 | Post-Hearing Order sent out. |
| Aug. 07, 1996 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript received. |
| Aug. 05, 1996 | (R. Mitchell Prugh) Order Granting Extension of Time; Cover Letter received. |
| Jul. 17, 1996 | Letter to Hearing Officer from R. Prugh Re: Enclosing diskette of Petitioner`s Proposed Recommended Order and cases cited in PPRO; Disk received. |
| Jul. 16, 1996 | Notice of Filing Proposed Recommended Order; Proposed Recommended Order (Prugh) received. |
| Jul. 10, 1996 | Respondent`s Proposed Recommended Order received. |
| Jul. 03, 1996 | CASE STATUS: Hearing Held. |
| Jun. 26, 1996 | (Joint) Prehearing Stipulation received. |
| Jun. 11, 1996 | Notice of Hearing sent out. (hearing set for 7/3/96; 9:30am; Tallahassee) |
| Jun. 11, 1996 | Order of Prehearing Instructions sent out. |
| Jun. 04, 1996 | Letter to Liz Cloud & Carroll Webb from J. York w/cc: Agency General Counsel sent out. |
| Jun. 04, 1996 | Order of Assignment sent out. |
| May 30, 1996 | Petition for Administrative Determination (w/attachments A-C) received. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 30, 1997 | Mandate | |
| Aug. 27, 1996 | DOAH Final Order | DOC`s sexual harass. policy, pamph. & Ch. 7 of pers. manual aren`t unpromulgated rules; Rules 33-4.001(4)(a), 33-4.002(4) & 33-4.003(22)/(24) are valid. |
