STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBY JONES; CLARENCE CORNELL SIMMONS; ) ERNIE THOMAS; FREDDIE LEE JACKSON; ) VICTOR CLARK; DARRELL D. MILLER; ) FRANK LAWRENCE DICKENS; and FLORIDA ) PUBLIC EMPLOYEES COUNCIL 79, AFSCME, )

)

Petitioners, )

)

vs. ) Case No. 97-4215RU

) STATE OF FLORIDA, DEPARTMENT OF ) CHILDREN AND FAMILY SERVICES, )

)

Respondent. )

)

FINAL ORDER

Notice was provided and on October 1, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.56, 120.569, and 120.57(1), Florida Statutes (Supp. 1996). The hearing location was the offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioners: Ben R. Patterson, Esquire

Jerry Traynham, Esquire Patterson and Traynham

315 Beard Street Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: Gregory D. Venz, Esquire

Department of Children and Family Services

Building 2, Room 204X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUES

Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?

PRELIMINARY STATEMENT

On September 8, 1997, Petitioners filed a Petition with the Division of Administrative Hearings seeking a determination that the aforementioned policy be declared an invalid rule. By order entered September 12, 1997, Sharyn L. Smith, Chief Judge, Division of Administrative Hearings, assigned the case to the undersigned. Subsequent to that assignment a formal hearing was noticed. That hearing was conducted on the date previously described.

Prior to hearing Respondent moved to dismiss the Petition based upon Respondent's claim that the policy in question is not a “Rule” as defined in Section 120.52(15), Florida Statutes

(Supp. 1996). Petitioners filed a response in opposition to the motion to dismiss. Ruling was reserved on the motion pending the conduct of the final hearing.

At hearing Petitioners presented the testimony of Frank Dickens and Clarence C. Simmons. Petitioners' Exhibits 1 through

8 were admitted. Respondent presented the testimony of Representative Lois Frankel. Respondent’s Exhibits 1 and 2 were admitted.

A transcript of the final hearing was filed on October 29, 1997. On November 10, 1997, Respondent filed a proposed final order. Petitioner did not submit a proposed final order.

However, the motion to dismiss, Petitioners' response to the motion to dismiss, as well as Respondent's proposed final order have been considered in preparing the final order.

FINDINGS OF FACT

1. The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital.

2. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida

   Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996).

3. Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida.

4. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications.

5. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent

   denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent.

6. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated:

   The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997.

   
   

   I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995.

   
   

   It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not

   apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated.

7. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated:

   The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues.

   
   

   In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements.

   
   

   If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel.

8. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others.

9. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief:

   Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . .

   
   

   The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id.

   This rule should be declared an invalid exercise of delegated legislative authority for the following reasons:

   
   

   1. The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes;

      
      

   2. The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority.

      
      

   3. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes.

   4. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee.

10. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996).

11. Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter

    presented herein, pursuant to Section 120.56, Florida Statutes (Supp. 1996).

13. The individual Petitioners and Florida Public Employees Council 79, AFSME, have standing to bring this case.

14. The individual Petitioners are employed by Respondent at Florida State Hospital, a mental health facility. Therefore, Respondent was required to screen the Petitioners as employees working in client contact positions to determine if the Petitioners had been convicted of or pled guilty or nolo contendere to certain offenses listed in Sections 435.03 and .04, Florida Statutes (1995). The requirement for screening is set forth in Sections 110.1127(3)(a) and 394.4572, Florida Statutes (Supp. 1996). Section 435.03, Florida Statutes (1995), relates to Level I screening. Section 435.04, Florida Statutes (1995), relates to Level II screening.

15. When the screening process identifies that employees, such as the individual Petitioners in this case, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to enumerated offenses in the Levels I

    and II screening processes, those persons are excluded from employment. See Section 435.06, Florida Statutes (1995). The persons disqualified may contest the disqualification on the basis of proof of mistaken identity. Alternatively the persons, in certain circumstances, may request exemption from disqualification in accordance with Section 435.07, Florida Statutes (1995).

16. Chapter 435, Florida Statutes (1995), is entitled Employment Screening. That chapter was created with the passage of Chapter 95-228, Section 47, Laws of Florida.

17. Chapter 95-228, Laws of Florida, at Section 64, states: “Except as otherwise provided herein, this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date." Section 47, which created Chapter 435, Florida Statutes, did not state an effective date for the implementation of the screening process in relation to offenses which would disqualify persons, such as the individual Petitioners in this case.

18. When Sections 435.03 and .04, Florida Statutes (1995), were placed in the statutes, each section included the reference:

    Note - Section 64, Ch. 95-228, provides that '[e]xcept as otherwise provided herein, this act shall take affect October 1, 1995, and shall apply to offenses committed on or after that date.'

    
    

19. The individual Petitioners in this case underwent screening and were alleged to have committed offenses which would disqualify them from continuing in employment where contact would be made with clients at Florida State Hospital. The Petitioners were given the option to contest the disqualification on the basis of mistaken identity and/or to request exemption from disqualification.

20. None of the alleged offenses which disqualified the individual Petitioners from positions of employment with Respondent were related to Chapter 95-228, Section 1, which created Section 787.025, Florida Statutes, the crime of luring or enticing a child into a structure, dwelling, or conveyance. That

    section was unaffiliated with the provisions for screening certain employees, to include the individual Petitioners in this case, to determine if those persons had committed offenses as identified in the list of offenses found at Chapter 95-228, Section 47, which became Sections 435.03 and .04, Florida

    Statutes (1995).

    
    

21. Florida Public Employees Council 79, AFSME, in the interest of its employee members, to include the individual Petitioners in this case, sought to convince the Department of Children and Family Services, District II Administrator that the individual Petitioners should not have been disqualified from employment based upon the interpretation which the Regional Director for the AFSME Florida Public Employees Council 79, had made concerning the effective date of Chapter 435, Florida Statutes, as that would influence the basis for disqualifying the Petitioners from employment. This overture was made by the August 13, 1997, correspondence which has been quoted. Mr. Buri, as Regional Director, contemplated that Dr. Awad, as District Administrator, would respond favorably to Mr. Buri’s interpretation of the underlying statute which controlled the individual Petitioners’ employment with Florida State Hospital.

22. When Dr. Awad wrote to Mr. Buri on August 18, 1997, he answered Mr. Buri’s request to have Respondent’s legal department address the concerns raised by Mr. Buri by indicating that those concerns had already been addressed by lawyers and other persons

    affiliated with Respondent. It is concluded that his comments referred to a policy or statement that was intended to be generally applicable to the individual Petitioners in this case and others similarly situated. Dr. Awad goes on to explain the agency policy.

23. The fact that Dr. Awad, rather than the Respondent’s agency head, has attempted to articulate the agency policy concerning background screening for the individual Petitioners in this case and others similarly situated, does not change the character of that policy as being Respondent’s attempt to fashion an agency statement generally applicable to the individual Petitioners and others similarly situated. But, is that policy

    a “Rule” as defined as Section 120.52(15), Florida Statutes (Supp. 1996)? That provision states:

    '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.

    * * *

    
    

    In State, Dept. of Admin, etc., Person. V. Harvey, 356 So. 2d, 323,(Fla. 1st DCA 1978), the court addressed the basis for determining whether an agency statement is a “Rule," where at page 325, it stated:

    Whether an agency statement is a rule turns on the effect of the statement, not on the

    agency’s characterization of the statement by some appellation other than 'rule.' The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it 'purports in and of itself to create certain rights and adversely affect others,' Stevens, 344 So. 2d at 296, or serves 'by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.' McDonald v. Dep’t of Banking & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977). See

    also Straughn v. O’Riordan, 338 So. 2d 832

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

    Moreover the court in Harvey made it clear that affected persons may challenge agency policies as constituting rules, whether they seek to challenge the factual basis for that agency decision in a Section 120.57, Florida Statutes (Supp. 1996), proceeding or not.

24. Although Dr. Awad has attempted to state the agency policy concerning rescreening of existing employees and initial screening of job applicants on dates subsequent to October 1, 1995, his reiteration of that policy is inconsequential. It cannot be determined from a reading of the second paragraph to Dr. Awad's letter what offenses by date of commission would form a basis for disqualification, because the letter is silent on that point. All that is stated is that employees undergoing rescreening and new job applicants being screened must generally comply with existing law. That statement is not understood to resolve the pertinent issue of the treatment of offenses that

predate October 1, 1995. Consequently, in the present context, the policy is not found by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law and is not a “Rule” by the definition in Section 120.52(15), Florida Statutes (Supp. 1996). Given that the policy statement is not a “Rule," Petitioners are not entitled to relief in accordance with Section 120.56, Florida Statutes (Supp. 1996), nor are Petitioners entitled to costs and attorneys fees pursuant to Section 120.595, Florida Statutes.

Upon consideration of the facts found and conclusions of Law reached, it is

ORDERED:

That the Petition to determine the invalidity of a “Rule” filed by these Petitioners is dismissed.

DONE AND ORDERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 1st day of December, 1997.

COPIES FURNISHED:

Ben R. Patterson, Esquire Jerry Traynham, Esquire Patterson and Traynham

315 Beard Street Post Office Box 4289

Tallahassee, Florida 32315

Gregory D. Venz, Esquire Department of Children

and Family Services Building 2, Room 204X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes.

`Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-004215RU

Orders for Case No: 97-004215RU