STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GARY SCHULTER, AND THE )
FLORIDA ASSOCIATION OF )
STATE TROOPERS, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 96-4326RU
) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )
)
Respondent. )
)
FINAL ORDER
Following notice to all parties, Don W. Davis, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on November 25, 1996, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Jerry G. Traynham, Esquire
Post Office Box 4289 Tallahassee, Florida 32315-4289
For Respondent: Judson M. Chapman, Esquire
Department of Highway Safety and Motor Vehicles
Neil Kirkman Building Tallahassee, Florida 32399-0504
STATEMENT OF THE ISSUE
The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority
contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
PRELIMINARY STATEMENT
Petitioner Gary Schulter, an employee of Respondent, filed a Petition To Determine The Invalidity Of Rules on September 12, 1996.
By motion filed September 27, 1996, Respondent sought dismissal of the Petition. The motion was denied.
Petitioner was granted leave to file an Amended Petition by order dated October 14, 1996, adding the Florida Association of State Troopers, Inc., as a party petitioner.
At the final hearing, Petitioners presented the testimony of three witnesses and 8 exhibits. Respondent presented the testimony of three witnesses and 20 exhibits.
The transcript of the final hearing was filed on December 9, 1996. The parties requested and were granted leave to file post hearing submissions more than 10 days after the final hearing, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.
Proposed findings of fact submitted by the parties have been considered in the preparation of this final order.
FINDINGS OF FACT
Stipulated Facts
The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10.
Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached.
In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty:
Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint.
Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning
him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence.
Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment.
The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year.
Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol.
Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes.
Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority.
Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment.
Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines.
To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes.
Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation.
Other Facts
The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its
members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers.
FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding
With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9.
While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and
instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale.
Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses.
As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy.
Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it
would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered.
Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty.
Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately
$1,000 per month in additional, private income.
Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment
and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future.
In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records.
The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as
providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent.
It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation.
While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited.
Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument
counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.56, Florida Statutes (Supp. 1996).
Petitioners have standing to bring this proceeding.
The term “[r]ule” is defined in pertinent part in Section 120.52(15), Florida Statutes (Supp. 1996), as follows:
’Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the 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. The term also includes the amendment or repeal of a rule. The term does not include:
(a) 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 policies of Respondent addressed in this proceeding implement, interpret, or prescribe “law or policy” concerning the substance and procedure surrounding internal investigations and their consequences. The policies are implemented on a consistent basis with the effect of law. Additionally, those policies are generally applicable to a class of persons, i.e., members of the Florida Highway Patrol, and affect the private interests of persons or procedures important to the public. Florida Optometric Association v. Department of Professional Regulation, 567 So. 2d 928, 937 (Fla. 1st DCA 1990); Regal Kitchens, Inc., v. Florida Department of Revenue, 641 So. 2d 158,162 (Fla. 1st DCA 1994); and, Tampa Electric Co. v. Department of Community Affairs, 654 So. 2d 998, 999 (Fla. 1st DCA 1995).
Respondent’s policy for assigning an employee to administrative duty in the employee’s private home definitely affects the employee’s private interest in employment, his career and his home. Likewise, Respondent’s policy with regard to prohibiting participation by an employee in off-duty police employment takes money from an employee’s pocket and must be considered to affect private interest. Respondent’s policy of identification of employees subject to investigation to witnesses in all cases, without regard to necessity to reveal that information or how the investigation was initiated, runs counter
to confidentiality requirements of Section 112.533, Florida Statutes, and affects private interests.
Respondent’s policies regarding access to investigation records and restriction of access to counsel in the course of investigative interviews also affects private and important rights of employees. Respondent’s prohibition of access to active investigative documents infers that this unwritten policy is consistent with statutory requirements. Contrary to Respondent’s position, confidentially requirements of documents produced as a result of an internal investigation of a law enforcement officer differ depending upon whether the investigation follows a written or unwritten complaint. Only investigations conducted pursuant to a written complaint invoke exemption to Chapter 119, Florida Statutes, in accordance with provisions of Section 112.533(2), Florida Statutes. City of Delray Beach v. Barfield, 579 So. 2d 315 (Fla. 4th DCA 1991).
Section 120.54(1)(a), Florida Statutes, contemplates that government agencies will draft rules sufficient to “provide fair notice to affected persons” of “relevant agency procedures and applicable principles, criteria, or standards for agency decisions” even if further refinement to specific instances is not possible. Section 120.54(1)(a)2., Florida Statutes (Supp. 1996).
With regard to the policies which are the subject of this proceeding, Respondent has made no attempt to comply with
requirements for rule promulgation contained in Chapter 120, Florida Statutes. Variance and waiver provisions of Section 120.542, Florida Statutes (Supp. 1996), seriously erode Respondent’s argument that formal rule promulgation with regard to the subject policies is not practical. Existing policies which Respondent presently chooses to implement can be adopted as formal rules with appropriate waivers granted in necessary situations. Future rule refinement may or may not be necessary upon later analysis of a rule’s waiver history.
It is deserving of notice and observation that the class of persons affected by Respondent’s noncompliance are law enforcement officers. The rights of law enforcement personnel are no less worthy of due process protections than those of the general citizenry.
CONCLUSION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED pursuant to Section 120.56(4), Florida Statutes (Supp. 1996), that each of Respondent’s policies which are the subject of this proceeding constitutes a rule under provisions of Section 120.52, Florida Statutes (Supp. 1996), which have not been adopted in compliance with Section 120.54, Florida Statutes (Supp. 1996); and
It is FURTHER ORDERED pursuant to Section 120.595(4), Florida Statutes (Supp. 1996), that Petitioner is awarded reasonable costs and reasonable attorney fees in this proceeding
to which end jurisdiction is retained to make the determination of the amount of such cost and fees in a subsequent proceeding upon filing of appropriate documentation by Petitioner.
DONE and ORDERED in Tallahassee, Florida, this 12th day of February, 1997.
DON W. DAVIS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-3060
(904) 488-9675 SUNCOM 278-9645
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
COPIES FURNISHED:
Judson M. Chapman, Esquire Department of Highway Safety
and Motor Vehicles Neil Kirkman Building
Tallahassee, FL 32399-0504
Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, FL 32315-4289
Charles J. Brantley, Director Department of Highway Safety
and Motor Vehicles
Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500
Enoch Jon Whitney, Esquire Department of Highway Safety
and Motor Vehicles Neil Kirkman Building
Tallahassee, FL 32399-0500
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.
| Issue Date | Proceedings |
|---|---|
| Apr. 07, 1998 | Record returned from the First DCA filed. |
| Mar. 12, 1998 | (Petitioner) Status Report (filed via facsimile). |
| Feb. 19, 1998 | First DCA Opinion and Mandate (Affirmed in part, Reversed in part and Remanded) filed. (NOTE: Fee`s Case Established: 98-1098FC) |
| Jan. 21, 1998 | (Petitioners) Status Report filed. |
| Jan. 02, 1998 | BY ORDER OF THE COURT (Appellees` petition for attorney`s fees is granted, and cause is remanded to the Division of Administrative Hearings for determination and entry of a reasonable amount) filed. (NOTE: Fee`s Case Established - DOAH #98-1098FC) |
| Nov. 12, 1997 | Status Report (Respondent) (filed via facsimile). |
| Jun. 19, 1997 | Index, Record, Certificate of Record sent out. |
| Jun. 18, 1997 | Payment in the amount of $104.00 for indexing filed. |
| Jun. 17, 1997 | Invoice Faxed sent out. (amount due for indexing $104.00) |
| Jun. 12, 1997 | BY ORDER OF THE COURT (Appellee`s motion for extension to serve answer brief filed in the 1st DCA, granted) filed. |
| Apr. 25, 1997 | Corrected Order sent out. (re: attorney`s fees & costs) |
| Apr. 23, 1997 | Order sent out. (re: attorney`s fees & costs) |
| Apr. 21, 1997 | (Gary Schluter et al.) Verified Motion for Attorney`s Fees and Costs; Affidavit of Vernon T. Grizzard filed. (NOTE: FEE`S CASE ESTABLISHED: 97-1965F) |
| Apr. 12, 1997 | Index sent out. (Record Index to the District Court of Appeal) |
| Mar. 03, 1997 | Letter to DOAH from DCA filed. DCA Case No. 1-97-730. |
| Feb. 25, 1997 | Certificate of Notice of Administrative Appeal sent out. |
| Feb. 20, 1997 | Notice of Administrative Appeal (HSMV) filed. |
| Feb. 12, 1997 | CASE CLOSED. Final Order sent out. Hearing held 11/25/96. |
| Jan. 29, 1997 | (Petitioner) Proposed Order; (Petitioner) Amended Order (filed via facsimile). |
| Jan. 27, 1997 | Order Granting Motion for Enlargement of Time sent out. (Post-Hearing Documents due by 1/28/97) |
| Jan. 24, 1997 | Respondent`s Proposed Findings of Fact and Conclusions of Law filed. |
| Jan. 23, 1997 | Joint Motion for Enlargement of Time for Post Hearing Briefs (filed via facsimile). |
| Jan. 23, 1997 | Joint Motion for Enlargement of Time for Post Hearing Briefs (filed via facsimile). |
| Jan. 15, 1997 | Order Granting Motion for Enlargement of Time sent out. (post hearing documents due by 1/24/97) |
| Jan. 14, 1997 | Second Joint Motion for Enlargement of Time for Post Hearing Briefs (filed via facsimile). |
| Jan. 07, 1997 | Order Granting Motion for Enlargement of Time sent out. (Post Hearing Briefs due by 1/16/97) |
| Dec. 09, 1996 | Transcript (Volumes I, II, tagged) filed. |
| Nov. 25, 1996 | CASE STATUS: Hearing Held. |
| Nov. 25, 1996 | (Joint) Prehearing Stipulation (filed via facsimile). |
| Nov. 07, 1996 | Order Denying Motion for Summary Disposition sent out. |
| Nov. 06, 1996 | Respondent`s Answer to Petitioner`s Request for Admissions; (Respondent) Response to Request for Production (filed via facsimile). |
| Nov. 05, 1996 | (Respondent) Response to Motion for Summary Disposition and Respondent`s Motion for Enlargement of Time to Respond to Discovery (filed via facsimile). |
| Nov. 04, 1996 | CC: Letter to Enoch Whitney from Jerry Traunham (RE: request for documents) (filed via facsimile). |
| Nov. 04, 1996 | (Petitioner) Motion for Summary Disposition (filed via facsimile). |
| Nov. 04, 1996 | (Respondent) Amended Notice of Taking Deposition filed. |
| Oct. 24, 1996 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing reset for 11/25/96; 9:30am; Tallahassee) |
| Oct. 23, 1996 | (Respondent) Consent Motion for Continuance of Hearing (filed via facsimile). |
| Oct. 22, 1996 | (From J. Traynham) Notice of Service of Interrogatories; Request for Admissions; Request for Production of Documents filed. |
| Oct. 14, 1996 | Order on Pending Motions and Provision of New Hearing Date sent out. (hearing date set for 10/31/96) |
| Oct. 08, 1996 | Order Denying Motion to Dismiss sent out. |
| Oct. 07, 1996 | Notice of Filing; Respondent`s Motion to Dismiss (for DOAH #95-5585RU) (filed via facsimile). (from J. Traynham) |
| Oct. 07, 1996 | Motion for Leave to Amend the Petition; Amended Petition to Determine the Invalidity of Rules filed. |
| Oct. 07, 1996 | Respondent`s Supplemental Memorandum on Lack of Petitioner`s Standing filed. |
| Oct. 07, 1996 | (Respondent) Memorandum Opposing Motion to Dismiss filed. |
| Sep. 27, 1996 | (Respondent) Motion for Protective Order; (Respondent) Motion and Memorandum to Dismiss Petition; (Respondent) Request for Oral Argument (filed via facsimile). |
| Sep. 24, 1996 | Notice of Hearing sent out. (hearing set for 10/21/96; 9:30am; Tallahassee) |
| Sep. 24, 1996 | Order Establishing Prehearing Procedure sent out. |
| Sep. 23, 1996 | Letter to Liz Cloud & Carroll Webb from J. York w/cc: Agency General Counsel sent out. |
| Sep. 23, 1996 | Order of Assignment sent out. |
| Sep. 19, 1996 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| Sep. 12, 1996 | Petition to Determine the Invalidity of Rules filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 18, 1998 | Mandate | |
| Dec. 31, 1997 | Opinion | |
| Feb. 12, 1997 | DOAH Final Order | Respondent's policies are unpromulgated rules. The failure to comply with Section 120.54, Florida Statutes, invalidates those rules and requires fee award per Section 120.595. |
