STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA B. HARVEY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-045RX

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF PERSONNEL, )

)

Respondent. )

)

FINAL ORDER

This matter came before the undersigned Hearing Officer on the Amended Petition of Patricia B. Harvey, Petitioner, challenging the validity of certain alleged rules of the Department of Administration, Division of Personnel pursuant to Section 120.56, Florida Statutes. The Amended Petition charges that the minimum training and experience requirements for the job classifications 0906. Administrative Assistant I and 0746, Information Specialist II and Subsection 22A-5.04(A)(7), Florida Administrative Code, are rules, as defined by Subsection 120.52(14), Florida Statutes, and are an invalid exercise of delegated legislative authority.

The facts in the matter as developed on record are not in dispute. In 1974, Petitioner submitted a State of Florida Employment Application to the Division of Personnel and was sent a computer notice by the division indicating her eligibility, based upon her training and experience, to take the competency test for the class of positions known as 0906, Administrative Assistant I. Upon taking the test Petitioner received a passing grade of 81.00 and, on November 12, 1974, her name was placed on the register of eligibles for the class. In December, 1974, Petitioner received a computer notice from the Division of Personnel indicating that she had been declared ineligible for the class O906, Administrative Assistant I, because she did not meet the minimum training and experience requirements. In January, 1975, Petitioner submitted a revised State of Florida Employment Application to the Division of

Personnel applying for a position' in classes 0906, Administrative Assistant I and 0746, Information Specialist II. In February, 1975, Petitioner was notified by the Division of Personnel that she did not meet the minimum training and experience requirements for either of the two foregoing classes. Because she was declared by the Division of Personnel to be unqualified for the subject classes for failure to meet the minimum training and experience requirements Petitioner was unable to gain job interviews with State agencies for a position in those classes. For the same reason she could not be considered for employment by a State agency in either of those classes. By Petition, dated February 26, 1975, Petitioner initiated the proceeding at issue herein.

Section 22A-1.04, F.A.C, provides for class specifications which shall define the kind of work and level of responsibility normally assigned positions allocated to each class. It further provides, as a part of a class specification, for a statement of the kinds and amount of training, experience and/or qualifications that are normally required of applicants for the class. This is labeled a statement of "Minimum Training And Experience". An employment application may be rejected by the State Personnel Director if the applicant does not meet the minimum training and experience requirements established for the class for which application is made. Section 22A-4.03(D)(1), F.A.C. The State Personnel Director may remove a persons name from the register of qualified persons if the applicant does not meet the minimum training and experience requirements established for the subject class. Section 22A-5.04(A)(7), F.A.C. In this matter the classes 0906, Administrative Assistant I and 0746, Information Specialist II, each constitute a class having a class specification as that term is used in Section 22A-1.04, F.A.C.

Respondent concedes that the formal procedural requirements for the adoption of a rule set out in Chapter 120, F.S., have not been pursued with regard to the minimum training and experience requirements for the two subject classes involved here.

Respondent, however, denies that either of the minimum training and experience requirements are a "rule" as defined in Section 120.52(14), F.S., and further argues that Petitioner has no standing to pursue this matter and that the Hearing Officer has no authority to determine what is or is not a "rule as defined by Chapter 120, F.S. Respondent admits that Subsection 22A- 5.04(A)(7), F.A.C, is a "rule" and argues that it is valid. In dealing with the issues raised in this proceeding, the Hearing Officer will, in order, dispose of those issues relating to Petitioner's standing, the Hearing Officer's authority, the two

alleged rules involving the minimum training and experience requirements, and, finally, Subsection 22A-5.04(A)(7), F.A.C.

With regard to Petitioner's standing to bring this proceeding, Subsection 120.56(1), F.S., states that:

"Any person substantially affected by a

rule may seek an administrative determination of the [invalidity] of the rule on the ground that the rule is an invalid exercise of delegated legislative authority."

Thus, to seek the administrative determination of the invalidity of the alleged rules herein, Petitioner must be "substantially affected" by the alleged rules. Petitioner has, been denied the opportunity of employment by the State of Florida in the two subject job classifications because of the requirements set forth in the alleged rules. Sections 22A-4.03 and 22A-5.04, F.A.C., give the State Personnel Director the power to reject Petitioner's application and to remove Petitioner's name from the register of eligibles for the subject jobs because of her failure to meet the minimum training and experience requirements which she alleges are rules. In fact, her application had been rejected and her name removed from the register of eligibles ,for that reason. Respondent concedes Petitioner is affected by the alleged rules but argues that she is not substantially affected. As shown by the foregoing, Petitioner has been precluded from seeking employment with the State of Florida in the subject jobs. This denial of an avenue of employment otherwise available except for the operation of the alleged rules, substantially affects Petitioner and gives her standing to initiate this proceeding.

Respondent argues with regard to the minimum training and experience requirements, which Petitioner alleges are rules and which are not set forth in the Florida Administrative Code, that the Hearing Officer has no authority to determine whether they are or are not rules as defined by Chapter 120, F.S. Respondent does not suggest how, in the context of a Section 120.56, F.S. proceeding, it is determined or who determines what is or is not a rule. Section 120.56, F.S., provides a procedure by which it may be determined whether a rule is an invalid exercise of delegated legislative authority. It requires the Hearing Officer to render a decision, stating the reasons therefore in writing, on the validity or invalidity of a challenged rule and provides that the Hearing Officer's order shall be final agency action. Subsection 120.52(14), F.S., defines "rule" as meaning:

• . . . each agency statement of general applicability that implements, interprets, 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 by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:

  1. 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.

  2. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with the agency action.

  3. The preparation or modification of:

1. Agency budgets.

2. Contractual provisions reached as a result of collective bargaining.

3. Agricultural marketing order under chapter

573 or chapter 601"

It can be seen from the definition of "rule" that the character of an agency statement as a rule is not determined by its publication in the Florida Administrative Code nor the mere assertion by an agency that it is or is not a rule. Rather, the character of an agency statement as a "rule" is determined by the application of the foregoing definition to the subject agency statement. It is necessary for a Hearing Officer in determining the validity or invalidity of a rule in a Section 120.56, F.S., proceeding to apply the definition of a rule found in Section 120.52, F.S., to the challenged agency statement and to `draw the conclusion that the agency statement either is or is not a rule within the statutory definition. Were it otherwise, an agency could always defeat a rule challenge by simply denying that the challenged agency statement was a rule. Certainly such was not the intention of the legislature in passing Section 120.56, F.S.

In order to determine whether the minimum training and experience requirements for the job classifications 0906, Administrative Assistant I and 0746, Information Specialist II, are invalid rules it is first necessary to determine whether they are rules as defined by Chapter 120, F.S. Application of the

definition of rule found in Subsection l20.52(l4),F.S., to the minimum training and experience requirements of the two job classes dictates the conclusion that they are rules. They are certainly agency statements and they are of general applicability for they apply to everyone seeking employment in those classifications and to every agency of state government.

Continuing the application of the definition it is plain that the alleged rules implement law. Subsection 110.022(1)(f), F.S., states that the Division of Personnel has' the duty of adopting rules and regulations necessary to implement the purposes of Chapter 110, which rules and regulations shall provide for "the establishment and maintenance of minimum qualifications for each class of positions. . ." Particularly in light of the division's admission that the subject minimum training and experience requirements were promulgated under the authority of Section 110.022, F.S., such requirements clearly implement the statutorily required establishment and maintenance of minimum qualifications for each class of positions The subject minimum training and experience requirements impose a requirement not specifically required by statute. Though the statute demands minimum qualifications, it leaves the specific determination of those qualifications to the Division of Personnel. That determination is found in the minimum training and experience requirements.

Finally, it cannot successfully be argued that the minimum training and experience requirements are internal management memoranda of the type excluded from the definition of "rule". The minimum training and experience requirements as set forth by the Division of Personnel do not apply only within the Division of Personnel, but rather to all agencies of state government.

Further, they affect the private interests of those citizens of the State of Florida and other persons who seek employment with the State. They also affect a plan important to the public for they affect the manner in which persons are chosen to fill job positions in state government and surely the public has a legitimate expectation that only qualified persons will be chosen. Thus, it must be concluded that the subject minimum training' and experience requirements are rules.

In determining whether a rule is a valid exercise of delegated legislative authority one must look not only to the legislative authority setting the substantive parameters of the agency's rule making power, but also to the legislative authority setting forth the manner in which that rule making power may be exercised. If a rule is not promulgated in accordance with the legislative requirements for the adoption of a rule it is not a valid exercise of delegated legislative authority, even though the substantive content of the rule may be within the delegation of

authority. York v. State, 10 So.2d 813 (Fla., 1943); 1 Fla. Jur.,

Administrative Law 71, 84, 89. Section 120.54, F.S., imposes upon every agency including the Division of Personnel, certain procedural requirements necessary for the valid exercise of an agencys rule making power as that power may be elsewhere granted to an agency by the legislature. With the exception of rules properly adopted prior to 1975, which exception is inapplicable in this case, a rule which was not created in compliance with Section 120.54, F.S., cannot be a valid rule and must therefore be an invalid exercise of delegated legislative authority. The Division of Personnel, Respondent herein, has admitted that the minimum training and experience requirements for the class of positions known as 0906, Administrative Assistant I and 0746, Information Specialist II, were not promulgated in accordance with the provisions of Chapter 120, F.S., including Section 120.54, F.S. Therefore, it having been determined that they are rules as defined by Chapter 120, F.S., it must be concluded that they are an invalid exercise of delegated legislative authority because of a failure to follow the statutorily prescribed requirements for adoption of rules.

Both parties to this proceeding have acknowledged that Section 22A-5.04(A)(7), F.A.C, is a rule as defined by Chapter 120, F.S. Petitioner argues that it is an invalid exercise of delegated legislative authority because it purports to authorize adverse agency action affecting the substantial interests of certain parties without specifically providing for a right to a hearing in accordance with Section 120.57, F.S. Paragraph (7) of Subsection 22A-5.04(A), F.A.C., gives the State Personnel Director the authority to remove a person's name from a register "for any of the causes stipulated in Sections 22A04.03(B) and 22A04.04(J)." Even though one accepts that such action on the part of the State Personnel Director affects or determines the substantial interests of a party as those terms are used in Section 120.57, F.S., it does not follow that an agency is required to specifically set out in all rules thus affecting substantial interests the right to a hearing as provided by Section 120.57, F.S. The right to such a hearing is conferred by Section 120.57, F.S., rather than the statement of that right in a rule adopted by an agency. Thus it is not necessary to restate that right to a hearing in every rule. The rule found in Subsection 22A-5.04(A)(7) F.A.C., is, therefore, not invalid on the grounds alleged by Petitioner.

Therefore, it is hereby determined that the minimum training and experience requirements for classifications 0906, Administrative Assistant I and 0746, Information Specialist II, are rules which constitute an invalid exercise of delegated

legislative authority because of a failure to follow the statutorily imposed requirements for adoption It is further determined that Subsection 22A-5.04(A)(7), F.A.C., is a valid rule.

DONE and ORDERED this 3rd day of November, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David V. Kerns, Esquire General Counsel

Department of Administration Room 530, Carl ton Building Tallahassee, Florida 32304

Ms. Patricia B. Harvey 3005 Whisper Court

Tallahassee, Florida 32303

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, DEPARTMENT NOT FINAL UNTIL TIME EXPIRES TO OF ADMINISTRATION, DIVISION FILE MOTION FOR REHEARING AND OF PERSONNEL, DISPOSITION THEREOF IF FILED.

Petitioner, CASE NO. EE-131

DOAH CASE NO. 75-045RX

vs.

PATRICIA B. HARVEY and STATE OF FLORIDA,

DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS,

Respondents.

/ DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL,

Petitioner, CASE NO. FF-168

DOAH CASE NO. 76-2122RX

vs.

PATRICIA B. HARVEY and STATE FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS,

Respondent.

/ Opinion filed December 27, 1977.

Petitions for Review of an order of the Department of Administration, Division of Personnel - Original Jurisdiction.

David V. Kerns, General Counsel, and Mary Clark, Assistant General Counsel, Tallahassee, for Petitioner.

Patricia B. Harvey, Tallahassee. for Respondent.

SMITH, J.

Respondent Harvey applied to the Division of Personnel to be included in the Division's register of persons eligible for career service employment as Administrative Assistant I and Information Specialist II. Her applications were denied because the Division found she did not meet the Division's statement of "minimum training in experience requirements" for those positions. Harvey petitioned the Division of Administrative Hearings (DOAH), pursuant to Section 120.56, Florida Statutes (1975), for a determination that the Division's "minimum training and experience requirements" are invalid because, having the effect of rules is defined in Section 120.52(14), they have not been adopted in rulemaking proceedings under Section 120.54. Harvey later filed a similar petition to invalidate 28 other "minimum training and experience requirements" on the same ground. After a hearing, the DOAH hearing officer held: (1) a hearing officer has jurisdiction under Section 120.56 to determine whether the agency statements are rules; (2) Harvey is a "substantially affected person" and has standing to challenge agency policy for which rulemaking is required; and (3) the "minimum training and experience requirements" have the effect of rules and are invalid because they were not adopted pursuant to Section 120.54. The Division seeks judicial review. Section 120.68.

We disposed of the first issue in State, Dept. of Admin. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), holding that a DOAH hearing officer is authorized to determine, in a Section 120.56 rule challenge proceeding. whether an agency statement is a rule. See also Dept. of Environmental Regulation v. Leon County. 344 So.2d 298 (Fla. 1st DCA 1977).

The effect of the Division's action is that Harvey is not eligible for employment by State agencies in any of the 30 job classifications in which she expressed interest. Fla. Admin. Code-Rule 22A-7.02(9). The hearing officer held, and we agree that the denial of avenues of employment substantially affected Harvey who therefore has standing to institute rule challenge proceedings.

Section 120.52(14), Florida Statutes (Supp. 1976) defines "rule," with certain exceptions not pertinent here, as

each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency 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 Division contends that the "minimum training and experience requirements" do not assume the dignity of rules and need not be adopted as rules. Section 110.022, Florida Statutes (1975) provides:

(1) [The Division shall] adopt and amend rules and regulations necessary to implement the purposes of Chapter 110, which rules

and regulations shall provide for:

* * *

(f) the establishment and maintenance of minimum qualifications for each class of positions . . .

Thus, asserts the Division, the legislature provided for a three- tiered body of authority for maintenance of the career service employment register: a statute granting authority to adopt rules and prescribing standards for those rules; rules providing for the establishment and maintenance of minimum qualifications; and nonrule qualification statements.

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. Dept. 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).

The Division's Rule 22A-4.03(4), Fla. Admin. Code, provides that the State Personnel Director may reject an application for employment if the applicant does not meet the minimum training and experience requirements for a class of position, or for other reasons including physical or mental inability to perform required duties, use of narcotics, or alcoholism. Here, Division staff examined Harvey's application and resume and determined that her education, training and experience do not satisfy the Division's statement of "minimum training and experience requirements" for any class of positions for which she applied. Thus the Division used its statement of minimum requirements as a rule of decision.

Harvey could have requested, pursuant to Rules 22L-7.01-.03, that the State Personnel Director determine that her training and experience are equivalent to the "minimum requirements" and register her notwithstanding her failure to satisfy prescribed requirements. We do not consider that the Director's discretion mitigates the decisive effect, as rules, of the minimum training and experience requirements. To warrant the exercise of his discretion, the Director must find as a fact that the applicant's training and experience are "equal to or higher than those required in the class specification." Fla. Admin. Code R. 22L-

1. Thus the prescribed minimum requirements contained in the "class specifications" remain the yardstick by which the applicant's qualifications must be measured.

   
   

   Harvey could also have appealed the Division's denial of her application to the Career Service Commission. Fla. Admin. Code Rule 22A-4.03(6). Failure to pursue that remedy does not make the Section 120.56, Florida Statutes (Supp. 1976) rule challenge proceeding inappropriate. Rule challenge proceedings are available to a substantially affected person who desires to challenge rules on which an agency's decision is based, regardless of whether he also challenges the factual basis of the agency decision. 1/ By the same token, a determination in this proceeding that the Division's minimum training and experience requirements are invalid rules does not require the Division to place Harvey on the employment register. The Division still must decide whether Harvey is qualified for employment in particular positions, but may not use the prescribed minimum training and experience requirements as a rule of decision. 2/ Since that decision will determine Harvey's substantial interests, the Division's proceedings must comply with the requirements of Section 120.57. McDonald, supra; General Development Corp. v.

   Division of State Planning, So.2d No. CC-118 (Fla. 1st DCA, Dec., 1977).

   
   

   The Division has urged that requiring adoption of the minimum training and experience requirements as rules would place an intolerable burden on the Department. The Division now maintains approximately 2900 requirements for state job classifications and it must add, delete or amend several hundred each year. Even if we could agree that the "minimum requirements" are statements of Division policy not having the effect of rules, we suspect that the Division's administrative burden would be substantially greater if it does not adopt minimum requirements as rules. To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to "expose and elucidate its reasons for discretionary action." McDonald, supra, 346 So.2d at 584. If the Division's policy is regularly adopted as a rule within the agency's authority, the agency need not defend its policy in each case. Id. at 583-84; Hill v. School Board of Leon County, So. 2d , No. HH-222, HH-223 (Fla. 1st ,DCA Oct. 28, 1977).

   
   

   The petitions for review are DENIED. Rawls, J., and McCord, Chief Judge, Dissents

   
   

   McCORD, Chief Judge, Dissenting

   
   

   Sec. 120.52, Florida Statutes (1975) - the Definitions section of the Administrative Procedure Act - defines "rule" as used in that act as follows:

   
   

   "(14) 'Rule means any agency statement of general applicability that implements interprets, or prescribes law or policy or describes the organization, procedure,

   or practice requirements of an agency

   and includes the amendment or repeal of a rule . . . " (Certain exceptions are listed which are not pertinent here.)

   
   

   It may be readily seen that this is an extremely broad definition, which, if applied literally, would appear to encompass the job class specifications with which we are here concerned. There are other factors, however, which should be considered and which show a legislative intent that the foregoing definition was not meant

   to include job class specifications. We must consider the rule definition of Chapter 120 in pari materia with Chapter 110, Florida Statutes (1975), relating to the State Career Service System. Sec. 110.022 empowers the Department of Administration, Division of Personnel:

   
   

   "(1) To adopt and amend rules and regulations necessary to implement the purposes of chapter 110, which rules and regulations shall provide for:

   * * *

   (f) the establishment and maintenance of minimum qualifications for each class of positions, . . ."

   
   

   Career Service Rules have been adopted to accomplish what is mandated by the above statute. They are contained in Chapter 22A- 1, Florida Administrative Code. The rules contained in that chapter outline the procedure for developing and maintaining the classification plan and provide a description of what the class specification must include. Thus, the Career Service Rules, in compliance with the foregoing statute, provide for the establishment and maintenance of minimum qualification for each class of positions. The rules themselves are implemented by class specifications which are published by the Division of Personnel in a continuing process to meet the needs of the state's employing agencies. The State Career Service work force consists of approximately 87,000 Positions which have been placed in approximately 2,900 job classifications with a class specification developed for each class. These class specifications are maintained as accurately and currently as possible to reflect the functions of the Positions in each classification and the minimum qualifications required for proper performance. The end purpose in this operation is to enable the agencies to receive applicants with the qualifications they want and to enable applicants to know whether they have the qualifications desired by the employing agencies. During the fiscal year 1975-76, 347 new classes were established with the class specification prepared for each.

   During the same period, 106 classes were abolished, giving a net gain of 241 total classes under the Career Service System. During the same year, the specifications for 455 classes were revised in the continuing effort to maintain the currency and accuracy of the system. It would be a mammoth and cumbersome undertaking to go through rule adoption procedures for the approximately 2,900 present job and to go through these procedures with each new job classification that is established and each classification that is revised. I do not believe the legislature intended that job class

   specifications be treated as individual rules to be adopted with the formality of the statutory rule-making procedures.

   
   

   When we consider the definition of a "rule" as contained in the Definitions section of the Administrative Procedure Act [Sec. 120.52(14)], quoted supra, in para materia with the definition of "classification plan" as contained in the Definitions section of the State Career Service System Act [Sec.110.042(10)], it seems apparent that the legislature did not intend for job class specifications to be so structured in their promulgation and revision as would be the result if they are classified as "rules." "Classification plan" was defined to mean:

   
   

   "A document which formally describes the concepts rules and regulations and class specifications utilized in the classification and reclassification of position in the career service." Sec.110.042(10).

   
   

   By the above statute, "classification plan" is a three-part document composed of (1) the concepts, (2) the rules and regulations and (3) the class specifications. Thus, in this definition there is confirming evidence that the legislature intended the specifications to mean something different and apart from the rules and regulations. I would reverse.

   
   

   ENDNOTES

   
   

   1/ Harvey did challenge the Division's factual conclusion that she was unqualified for the position by requesting a hearing pursuant to Sec. 120.57(1), Fla. Stat. (Supp. 1976). We are not concerned in this proceeding with the results of that hearing.

   
   

   2/ Job titles and descriptions, like the minimum training and experience requirements, are included in the "class specifications," Fla. Admin. Code Rule 22A-1.04. While those titles and descriptions may also be rules requiring adoption under Sec. 120.54, Harvey has not challenged the job titles and descriptions in this proceeding. The Division may continue to register applicants under the class specification until they are properly challenged in a Sec. 120.56 or Sec. 120.57 proceeding, if the Division has not by then adopted the class specifications as rules.

   ================================================================= PETITION FOR REHEARING

   =================================================================

   
   

   IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JULY TERM, A.D. 1977

   
   

   STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL,

   
   

   Petitioner,

   
   

   vs. CASE NO. 75-045RX

   
   

   PATRICIA B. HARVEY and STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS,

   
   

   Respondents.

   / DEPARTMENT OF ADMINISTRATION,

   DIVISION OF PERSONNEL,

   
   

   Petitioner,

   
   

   vs. CASE NO. 76-2122RX

   
   

   PATRICIA B. HARVEY and STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS,

   
   

   Respondents.

   /

   
   

   PETITION FOR REHEARING

   
   

   COMES NOW the Petitioner, State of Florida, Department of Administration, Division of .Personnel, by and through its undersigned attorney, and petitions for rehearing the decisions and orders of this Court heretofore, entered on December 27, 1977, denying Petitioner's Petitions for Review, and for cause thereof respectfully shows:

   I

   
   

   In applying to the Petitioner the McDonald mode of operation (defined below) and the provisions of Rules 22L-7.01-.03, rather than Rule 22A-4.03, the Court overlooked and failed to consider that Petitioner's operations actually fall into a second and alternate mode of administrative operation under which the "minimum training and experience requirements" are not and can not be rules, as more fully explained below.

   
   

   1. In McDonald v. Department of Banking and Finance, 346 So.2d 569 (1977), this Court established a method of operation by which an agency moves from a series of decisions to generalized statements of policy which are ultimately embodied in rules. When the ultimate status is attained, the policy criteria have "the direct and consistent effect of law" as to which compliance is required. Forcing every agency into this mode of operation has the effect of obscuring and ultimately eliminating an equally legitimate alternate method of operation.

      
      

      Particularly appropriate for a collegial agency such as the Career Service Commission, is the second mode of operation in which the agency refrains from establishing its policies with the rigidity of rules and refrains from delegating to staff the authority to make a final decision. Instead, the agency provides or permits the use of a number of "guidelines" or criteria "normally to be utilized by staff in making tentative decisions subject always to final review by the quasi-judicial collegial body. This mode of operation was recognized by this Court in the last two sentences of its majority opinion. However, the Court overlooked and failed to consider that this is the scheme inherently involved in the instant case. Although the Career Service Rules antedate the current APA, Rule 22A-4.03, F.A.C clearly states, especially as to an applicant (i.e. Respondent Harvey) , that the authority to make a final decision is solely that of the Career Service Commission. 1/ The process was obscured in the present case because Respondent Harvey did not ask for review by the Career Service Commission, but that does not change the fact that only a ruling by the Career Service Commission is final as to an applicant's meeting the "minimum training and experience requirements" and that the rulings of the Division of Personnel staff or the State Personnel Director are only tentative, not final, and therefore not "decisive". This Court overlooked the true nature of the Career Service process here in holding that the Division's or Director's rulings were decisive, or anything more than tentative and in failing to recognize that only the Career Service Commission could apply the

      "minimum training and experience requirements" to Respondent Harvey in a manner to "have the force and effect of law", to "require compliance" or to create rights.

      
      

   2. Having overlooked the effect of the Career Service Rules in lodging final decisional authority in the Career Service Commission, this Court overstated the effect of Rules 22L-7.01-

      .03, F.A.C. Upon examination, these rules will be seen to provide the in-office procedure for handling a "Request for Personnel Action form" when submitted by an agency. That procedure is not involved in the instant case. Rather, an applicant's procedure, and the authorized actions thereon, are entirely governed by Rule 22A-4.03, discussed above. Since the latter rule does not authorize the State Personnel Director to make a final ruling as to an applicant's "minimum training and experience requirements", the inapplicability of Rule 22L-7.01- .03, is apparent.

      
      

   3. Having overlooked the effect of the Career Service Rules in lodging in the Career Service Commission, final authority on an applicant's meeting the minimum training and experience requirements, this Court's statement in the last two sentences of the majority opinion, while correct as to the Section 120.57 proceeding, is inaccurate in implying, if such implication is intended, that the responsibility for such proceeding is on the "Division" rather than on the Career Service Commission. While in such proceeding the Division may be called on to explain its tentative decision and the reasons therefor, the policy to be expressed and adopted by the decision will be that of the Career Service Commission and not that of the Division. In such hearing, the Division's "minimum training and experience requirement" is on trial as much as is the applicant's qualification. In this way, the Commission retains the flexibility to adjust the job requirements to the individual applicant's unusual or peculiar circumstances. Under this process, the applicant with a peculiar background has a much better opportunity of receiving equitable and just treatment than he would have if the "minimum training and experience requirements" were adopted as rules and were applied against him by the Division staff with the "force and effect of law" and of required compliance. As has been said of the law, "nothing impedes justice the way the rules of law do", so of the, personnel system if such provisions as the "minimum training and experience requirements" had to be adopted and applied with the force and effect of law.

      
      

   4. Having overlooked the responsibility of the Career Service Commission, rather than Petitioner Division, to make the final decision as to an applicant's minimum training and

      experience qualifications, this Court overlooked the fact that the Division's rulings are tentative and were not decisions that "will determine Harvey's substantial interests" (p. 5). Those interests would have been determined only if Harvey had appealed to the Career Service Commission. The record showed such appeal process is viable, that about half of the appeals to the Commission are decided in favor of the applicant. Whether the Career Service Commission would have ruled Harvey eligible for state employment in none, some or all of the 30 classes "in which she expressed interest" is open to speculation.

      
      

   5. Having overlooked the final responsibility of the Career Service Commission, this Court failed to recognize that the "minimum training and experience requirements" are "yardsticks" provided by the State Personnel Director (as required by statute and the Career Service Rules) to give a non-final understanding of the preparation normally required for Career Service jobs. 2/ No provision of statute or rule requires compliance with them or indicates they are to be applied with the force and effect of law. The authority of the Career Service Commission to make the final decision as to applicants should be recognized, along with the Commission's clear provision in its rules that the minimum training and experience requirements are only to be "normally" required of applicants. Thus, the issue is presented whether a tentative ruling which is subject to review by a separate quasi- judicial authority should be held to be equivalent to a "rule of decision", i.e., a "determination" concerning Harvey's applications. Further this issue is whether the APA definition of "rule" includes "principles" normally used by one administrative entity in making a decision which, upon request, is reviewed by another agency, quasi-judicial in nature, that makes the final decision and that is not necessarily bound by the "principles".

By neither entity are the "principles" applied with the force and effect of law - not by the first entity because the decision is tentative only and not by the second entity because it is not limited by the first entity's "principles". Thus, the "principles" are not rules under the APA definition. (While the precedents of the second entity may evolve into rules under the McDonald decision, that aspect is irrelevant to the instant case.)

II

Even under the McDonald method of operation, the majority opinion overlooked and failed to consider the aspect of the bulk and quantity of rules.

"There are quantitative limits to the detail of the policy that can effectively be promulgated as rules or assimilated;. . ." McDonald, supra at page 581.

The record showed, and the dissenting opinion recognized, that the extension of rule-making into minutiae of detail may result in agency policy being obfuscated rather than clarified. The record showed that the authorizing statute and the Career Service Rules established a working scheme which the agency staff had fully implemented for day-to-day operations. 3/ The method of operation is fully set out in writing as well as the tentative standard to be used in the staff's screenings. The tentative criteria (minimum training and experience requirements) were well- publicized and readily available to any person who chose to inquire. Petitioner submits that the majority opinion should have recognized that the optimum level of detail had been implemented and that an extension of rule-making into further detail would have defeated, rather than carried out, the legislative purpose of the APA.

For the reasons stated, Petitioner respectfully requests this Court grant rehearing in this cause.

Respectfully submitted,

DAVID V. KERNS, GENERAL COUNSEL DEPARTMENT OF ADMINISTRATION

530 Carlton Building Tallahassee, Florida 32304 (904) 488-5067

ENDNOTES

1/ 22A-4.03(4) An application may be rejected by the State Personnel Director if the Applicant:

1. Does not meet the minimum training and experience requirements established for the class.

(5) If an application is rejected, the applicant may appeal such action by submitting to the State Personnel Director a written request that the decision be reviewed by the Career Service Commission. The decision of the Career Service Commission shall be final.

2/ "22A-1.04(2)(d) MINIMUM TRAINING AND EXPERIENCE - Statements

of the kinds and amounts of training, experience and/or other qualifications that are normally required of applicants for the class." (e.s.)

3/ The Career Service Rules, as referred to herein, are Chapters 22A-1 through 22A-15, F.A.C., which are recommended by the Career Service Commission and adopted by the Administration Commission pursuant to Section 110.041, F.S. The rules in Chapters beginning with 22L- are operating or procedure rules adopted by the Department to comply with Section 120.53(1), F.S.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Rehearing has been furnished by U.S. Mail to Ms. Patricia B. Harvey, 3005 Whisper Court, Tallahassee, Florida, 32303, and Mr. Chris Bentley, Hearing Officer, 530 Carlton Building, Tallahassee, Florida, 32304; this 10th day of January 1978.

DAVID V. KERNS

Docket for Case No: 75-000045RX

Orders for Case No: 75-000045RX