STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. RICHARD STEVENS, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 75-2024RX

   )

   DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) DEPARTMENT OF ADMINISTRATION, )

   )

   Respondents. )

   )

   
   

   FINAL ORDER APPEARANCES

   For Petitioner: HOWELL L. FERGUSON, Esquire

   Ferguson, Fearington & Parsons Post Office Box 1548 Tallahassee, Florida 32302

   
   

   For Respondents: DOUGLAS WHITNEY, Esquire

   Office of General Counsel Department of Health and

   Rehabilitative Services 1323 Winewood Boulevard

   Tallahassee, Florida 32301

   
   

   DAVID V. FERNS, Esquire General Counsel

   Department of Administration

   530 Carlton Building Tallahassee, Florida 32304

   
   

   1. This matter came before the undersigned Hearing Officer on the Petition of J. Richard Stevens challenging what are claimed to be invalid administrative rules of the Department of Health and Rehabilitative Services and the Department of Administration. This proceeding was filed under the authority of Section 120.56, F.S. Under the same caption and number before the Division of Administrative Hearings is also currently pending a hearing referred to this Division by the Career Service Commission dealing with the termination or layoff of the same Petitioner, J. Richard Stevens. That appeal challenges the termination of the Petitioner under Career Service rules. Although both these cases are before this Division this Final Order deals only with the rule challenge and not with the Career Service appeal referred to this Division by the Career Service Commission.

      
      

   2. The facts in this matter as developed by the pleadings, responses to requests for admissions and interrogatories, exhibits and testimony that was presented at the final hearing on April 21, 1976 were not in great dispute and

      were as follows. Dr. James H. Williams was employed with the Division of Mental Health of the Department of Health and Rehabilitative Services in the position of Research Associate in Avon Park, Florida. The 1975 session of the Florida Legislature did not continue the funding of this position and because of the legislative elimination of this position Dr. Williams faced termination from the Department of Health and Rehabilitative Services. By letter June 4, 1975, the Respondent, HRS, notified Dr. Williams that the 1975 Legislature abolished the position he held at that time. This legislative act was to become effective July 1, 1975. According to guidelines developed by the Respondent, HRS, Dr.

      Williams was advised that he had "superior retention points" and could take over the position held by similar employees with less seniority with that Department. In that fashion, then, Dr. Williams "bumped" the Petitioner in this case, Dr.

      Stevens. Dr. Stevens occupied the position of Research Associate in the Division of Aging of the Department of Health and Rehabilitative Services in Tallahassee, Florida. Ultimately, Dr. Stevens was layed off by the Department of Health and Rehabilitative Services and Dr. Williams assumed his position.

      
      

   3. Dr. Stevens, the Petitioner, petitioned this Division under Section 120.56, F.S., challenging the authority of the Department of Health and Rehabilitative Services to have layed him off. specifically, the Petitioner challenges a memorandum of the Department of Health and Rehabilitative Services which the Respondent, HRS, used as authority to effect his layoff. Additionally, the Petitioner challenges another memorandum of the Department of Administration which the Petitioner contends was also used as authority for his

      being layed off. Dr. Stevens at all times material to this dispute was a Career Service employee with permanent status. Specifically, Dr. Stevens alleges that the above two memoranda fall under the definition of a rule as defined in Section 120.52(14), F.S., which states:

      
      

      "(14) 'Rule' means 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 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, . . ."

         
         

         The two memoranda in question were introduced into evidence at this hearing. The memorandum of the Department of Health and Rehabilitative Services was introduced as Exhibit No. 3 and the memorandum of the Department of Administration as Exhibit No. 4.

         
         

   4. Section 120.56, F.S., states:

      
      

      "(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground:

      1. That the rule is an invalid exercise of validly delegated legislative authority.

      2. That the rule is an exercise of invalidly delegated legislative authority."

   5. Neither of the above two memoranda have been adopted as rules by either agency, under the old Administrative Procedure Act or the current Chapter 120, which replaced it. The Petitioner contends that the above memoranda fall under the definition of a rule and have not been adopted properly as a rule and are therefore an invalid exercise of rule making authority. Further, the Petitioner alleges that the above rules are in conflict with Chapter 110, F.S., which guarantees Career Service employees the right to retain their job and only be terminated for cause.

      
      

   6. The Department of Health and Rehabilitative Services has admitted that the sole authority used by that agency for the layoff or termination of Petitioner, Dr. Stevens, was Directive No. 8.07 of the Department of Health and Rehabilitative Services captioned "Layoff and Reemployment of Personnel" (Petitioner's Exhibit No. 3) and a personnel and policy procedure memorandum of the Florida Department Of Administration captioned "Guidelines for Preparing Layoff Procedures" Memo No. 74-7 (Petitioner's Exhibit No. 4). Through admissions filed by the Respondents and testimony elicited at the final hearing it is apparent that these two documents were the sole authority for the termination of Dr. Stevens. Petitioner's Exhibit No. 3, the memorandum of the Department of Health and Rehabilitative Services, was prepared under the "authority" of the memorandum of the Department of Administration, Exhibit No.

1. Both these memoranda deal with the layoff of state employees. The Department of Administration memorandum requires that each agency adopt further guidelines to establish layoff procedures. Since these are the only documents demonstrated to have been used as authority for the layoff of Dr. Stevens it is concluded that under Section 120.56, F.S., Dr. Stevens was substantially affected by both these guidelines or memoranda and has standing to challenge - these before this Division.

   
   

   1. The next question to be considered is whether these "guidelines" fall under the definition of a rule as contained in Chapter 120, F.S., above quoted. It is quite clear from a reading of both these guidelines that they are statements of general applicability that implement, interpret and prescribe law or policy. It has been argued by both Respondents that the guidelines are internal personnel matters and fall under the exception to the definition of a rule; being "internal management memoranda which do not effect either the private interest of any person . . " While it could be argued that these guidelines are internal management memoranda they certainly do effect the private interests of parties. In this instance, these guidelines caused the termination of the Petitioner's employment with the Department of Health and Rehabilitative Services. It is hard to imagine a matter that has a greater impact on ones private life than loss of employment. It is therefore concluded that both the above described memoranda guidelines fall under the definition of a rule as contained in Section 120.52(14), F.S.

      
      

   2. With regard to the HRS memorandum, it having been determined that such is a rule as defined by Chapter 120, the ultimate question is whether such is a valid exercise of that agency's authority. All agencies are creatures of the legislature and agency authority must stem from a specific legislative enactment granting it certain powers and responsibilities. McRae v. Robbins 9 So.2d 284, Atlantic Coast Line R. Co. v. State 143 So.255, Cram v. Florida Industrial Commission 150 So.2d 501. Chapter 120 is specific and states "No agency has inherent rule making authority . . .", Subsection 120.54(13), F.S. That Department has admitted that it does not have statutory authority to adopt administrative rules regarding the layoff of personnel. Instead, HRS points to the memorandum of the Department of Administration as authority for its own guidelines. That memorandum requires that agencies that adopt layoff procedures

      forward the same to the State Personnel Director for review and approval. In turn, the Department of Administration's memorandum (Exhibit No. 4) looks to Rule 22A-7.10H, Florida Administrative Code, as authority. However, a rule cannot be the basis of authority for another rule. Therefore, the HRS "layoff and reemployment of personnel" memorandum is an invalid exercise of legislative authority and is invalid.

      
      

   3. The Department of Administration has been granted rulemaking authority by the legislature to adopt rules dealing with, among other things, the layoff of state employees. However, the memorandum in question, Petitioner's Exhibit No. 4, was not adopted as a rule and therefore is also an invalid exercise of rule making authority.

      
      

   4. A further ground for a determination of the validity of both these agency rules is that they conflict with Florida Statutes. Section 110.042, F.S., defines layoff as "Termination of employment due to abolishment of positions necessitated by shortage of funds or work . . ." Section 110.061, F.S., states:

"(1) Any employee who has permanent status in the career service may only be terminated for cause by the agency or officer by whom he is employed."

"Cause" has been defined in appropriate circumstances as good cause justifying the termination of an employee. Nothing in Chapter 110, F.S., authorizes an agency to terminate a Career Service employee who has achieved permanent status because another Career Service employee's job has been abolished. Good cause does not mean something other than the employee's performance, competence or ability to perform his assigned duties. There have been few cases reported actually defining what constitutes "good cause" for the termination of a permanent public employee. In the case of Arnold v. State 2 So.2d 874, that court stated:

"It appears to be settled law that a removal of an employee . . . must be made in good faith, or for reasons of economy, or where an office or position is abolished the same must be done in good faith, or on some general delinquency, such as misconduct, incompetency, inefficiency or insubordination or some other act affecting the general character and fitness of the employee,

None of the above fits the Petitioner's situation. In this case the challenged "guidelines" have been used to accomplish what the statutes prohibit; specifically, the termination of a permanent employee for grounds other than cause. Dr. Stevens, the Petitioner, was removed from his position through no fault of his own. His job was not abolished by the legislature yet he was terminated and the employee whose position ceased to exist replaced Dr. Stevens. Chapter 110, F.S., guarantees certain rights to Career Service employees who attain permanent status, yet this statutory right was denied to Dr. Stevens on the authority of the above rules. Although Chapter 110 gives the Department of Administration the power to adopt rules regulating the layoff of employees whose positions are abolished or cease to be funded, nothing in that chapter specifically permits a Career Service employee in a permanent status whose position has not been eliminated to be terminated for other than cause. Since the rules are contrary to the mandates contained in Chapter 110 the rules must

be held to be invalid for no agency has the authority to adopt a rule which conflicts with a legislative enactment. State v. Atlantic Coast Line R. Co. 47

S. 969; Louisville & N. R. Co. v. Railroad Commissioners 48 S. 543; Grisson v. Van Ordsdel 137 So.2d 246; De Thorne v. Beck 280 So.2d 448.

Therefore, it is held that both the memoranda of the Department of Health and Rehabilitative Services (Exhibit No. 3) and that of the Department of Administration (Exhibit No. 4) are invalid rules, as defined by Chapter 120, F.S.

DONE and ORDERED this 26th day of April, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

530 Carlton Building Tallahassee, Florida 32304

Howell L. Ferguson, Esquire Ferguson, Fearington & Parsons Post Office Box 1548 Tallahassee, Florida 32302

Douglas Whitney, Esquire Office of General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 75-002024RX

Orders for Case No: 75-002024RX